Federal Judiciary

United States v. Pope, Docket No. 08-1007-cr (2d Cir. Feb. 3, 2009) (found here)

What does it mean to possess a dangerous weapon mean for purposes of an enhancement under Section 2B2.1(b)(4) of the Guidelines?  That is the question that the Second Circuit addressed in Pope.

Pope was a bank robber.  His tool of choice was a sledgehammer.  He used it to break bank windows.  In anticipation of sentencing, the Probation Department calculated Pope's advisory Guidelines offense level to include a 2 level enhancement pursuant to Section 2B2.1(b)(4), reasoning that his sledgehammer was a deadly weapon.  And, arguably it was.  It is capable of inflicting death or serious bodily injury.  But, according to Pope's lawyer, it was not used or possessed in Pope's offense as a weapon.  Rather, it was used to facilitate the burglary -- i.e., break windows.  The district court accepted the Probation Department's advisory Guidelines offense level calculation, and determined Pope's advisory Guidelines offense level based on the conclusion that the sledgehammer was a deadly weapon. 

Pope appealed.  He did not dispute that he possessed and used the sledgehammer in the course of his burglaries.  Rather, he argued that the 2 level enhancement didn't apply because a sledgehammer is "not inherently a weapon," and he did not use the sledgehammer as a weapon.  Not so fast, says the Second Circuit.

According to Pope, the Second Circuit has always taken a broad view of the definition of a dangerous weapon.  Application Note 1(D) of Section 1B1.1 states that a dangerous weapon need only be "an instrument capable if inflicting death of serious bodily injury," and a sledgehammer certainly fit that criteria.  But was Pope's mere possession of the sledgehammer sufficient to trigger the 2 level enhancement under Section 2B2.1(b)(4) even if it was not used as a weapon?  Yes, according to a strict interpretation of the word "possess."  Here's what the Second Circuit had to say:

Come on, now.  There are dangerous weapons and there are dangerous weapons.  In the context of Pope's offense and the Second Circuit's interpretation of Section 2B2.1(b)(4), almost anything would qualify.  A brick could break a window and be a weapon.  A stick could break a window and be a weapon.  A screwdriver could break a lock and be a weapon.  All would qualify for the enhancement.  Absurd results?  You betcha.  But not the absurd results about which the Second Circuit expressed concern.