Friday, February 6th, 2009

If I Had A Hammer

United States v. Pope, No. 08-1007-cr (2d Cir. February 3, 2009) (Cabranes, Livingston, CJJ, Eaton, DJ)

Steven W. Pope pled guilty to two counts of bank burglary, in violation of 18 U.S.C. § 2113(a). During one of the burglaries, he broke a side window of a Chase branch with a sledgehammer. Based on this, at sentencing, the court enhanced his offense level by two levels for possessing a “deadly weapon.”

He unsuccessfully challenged this enhancement on appeal. The Guideline, § 2B2.1(b)(4), requires the enhancement if a “dangerous weapon … was possessed.” Here, Pope conceded that the sledgehammer was a dangerous weapon and that he possessed it, but argued that he used it only to facilitate the burglary, and did not intend for it to serve as a weapon. To the circuit, this did not matter. “The fact that he did not use the sledgehammer as a weapon is irrelevant to the issue of possession.” Moreover, to “hold otherwise would directly contradict the plain meaning of this provision of the Guidelines, and would lead to absurd results.”

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