01-2022 U.S. v. Warren

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“Whether Mr. Warren touched the teller’s back with the gun or whether he simply came close to touching her is not an important distinction for purposes of determining the applicability of the enhancement. Although something more than a general display of a weapon is necessary to constitute use under subsection (b)(2)(D), see Seavoy, 995 F.2d at 1422, physical contact between the weapon and the victim is not a prerequisite to finding that the defendant ‘otherwise used’ a dangerous weapon, see, e.g., United States v. Wooden, 169 F.3d 674, 676-77 (11th Cir. 1999) (weapon was ‘otherwise used’ when held one-half inch from victim’s head); United States v. Johnson, 931 F.2d 238, 240-41 (3d Cir. 1991) (weapon was ‘otherwise used’ when held ‘at close range’).

“Moreover, Mr. Warren admitted during his plea colloquy that he intimidated his victim with the weapon and also admitted that he threatened her by warning that he ‘didn’t want to hurt her.’ Tr.I at 14-15, 26… The district court reasonably could have found that Mr. Warren’s behavior did constitute such a personalized threat.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Hart, J., Ripple, J.