ROGER DALE FLOWERS, PETITIONER V. UNITED STATES OF AMERICA No. 90-7633 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A3) is unreported, but the judgment is noted at 923 F.2d 866 (Table). JURISDICTION The judgment of the court of appeals was entered on January 8, 1991. The petition for certiorari was filed on April 5, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Ex Post Facto Clause prohibited the district court from increasing petitioner's offense level under Sentencing Guidelines Sections 1B1.1 and 2B3.1, for his use of a fake bomb to commit a bank robbery. STATEMENT After pleading guilty in the United States District Court for the Northern District of Georgia, petitioner was convicted on one count of bank robbery, in violation of 18 U.S.C. 2113(a). He was sentenced to a term of 33 months' imprisonment, to be followed by a three-year term of supervised release. The court of appeals affirmed. Pet. App. A1-A3. 1. On October 4, 1989, petitioner walked into the Tucker Federal Savings and Loan Association in Stone Mountain, Georgia. He placed a tube-shaped flashing object wrapped in black electrical tape on a teller's counter, and then demanded cash. The teller handed over approximately $587 in cash; petitioner took the money and fled, leaving the device behind. Bank personnel announced that there was a bomb in the bank and evacuated all bank employees and customers. The bomb squad later determined that the device was a fake. Gov't C.A. Br. 3. 2. At sentencing in January 1990, the district court found that petitioner's base offense level under the Sentencing Guidelines was 18. The court increased the offense level by one under Guidelines Section 2B3.1(b)(1), because the victim was a financial institution. The court then determined that petitioner had "brandished, displayed, or possessed" a "dangerous weapon" within the meaning of Sentencing Guidelines Section 2B3.1(b)(2), and added three points to petitioner's offense level. After a two-level reduction for acceptance of responsibility, petitioner's final offense level was 20. That offense level, combined with petitioner's criminal history category of I, produced a sentencing range of 33 to 41 months' imprisonment; he was sentenced to a term of 33 months' imprisonment. Gov't C.A. Br. 2. 3. The court of appeals affirmed. Pet. App. A1-A3. In the court of appeals, petitioner contended that the district court's three-point increase in his offense level because he displayed a "dangerous weapon" violated the Ex Post Facto Clause. The court acknowledged that the Sentencing Commission did not amend the Guidelines' definition of "dangerous weapon" to include objects that "appeared" to be dangerous until after the date of petitioner's offense. Pet. App. A2. The court determined, however, that the Commission's amendment only clarified the applicable Guidelines, see Sentencing Guidelines Sections 1B1.1 and 2B3.1(b)(2)(C). In these circumstances, the court of appeals held, the district court did not violate the Ex Post Facto Clause, since objects that appeared to be dangerous weapons were within the definition of "dangerous weapon" as it read at the time petitioner committed his offense. Pet. App. A2-A3. ARGUMENT Petitioner contends (Pet. 9-16) that the Ex Post Facto Clause prohibited the district court from increasing his offense level under Sentencing Guidelines Sections 1B1.1 and 2B3.1, for use of a fake bomb to commit a bank robbery. "The ex post facto prohibition forbids the Congress and the States to enact any law 'which imposes a punishment for an act which was not punishable at the time it was committed or imposes additional punishment to that then prescribed.'" Weaver v. Graham, 450 U.S. 24, 28 (1981) (footnote omitted) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-326 (1867)). To establish a violation of the Ex Post Facto Clause, this Court has made clear, two critical factors must be present: first, the law "must be retrospective, that is, it must apply to events occurring before its enactment"; and second, "it must disadvantage the offender affected by it." Miller v. Florida, 482 U.S. 423, 430 (1987) (quoting Weaver, 450 U.S. at 29). "A law is retrospective if it 'changes the legal consequences of acts completed before its effective date.'" Miller, 482 U.S. at 430 (quoting Weaver, 450 U.S. at 31). At the time petitioner committed his offense in October 1889, Sentencing Guidelines Section 2B3.1 -- which sets the offense level for robbery -- provided for a three-level increase "if a firearm or other dangerous weapon was brandished, displayed or possessed." Sentencing Guidelines Section 2B3.1(b)(2)(C). The Commentary to that provision referred to Guidelines Section 1B1.1 for definitions of "firearm" and "dangerous weapon." Sentencing Guidelines Section 1B1.1, Application Note 1(d), defined a "dangerous weapon" as "an instrument capable of inflicting death or serious bodily injury." Effective November 1, 1989, after the date of petitioner's offense, the Commission amended the pertinent Commentary to Guidelines Section 2B1.3 as follows: "When an object that appeared to be a dangerous weapon was brandished, displayed or possessed, treat the object as a dangerous weapon for purposes of subsection (b)(2)(C)." At the same time, the Commission amended the definition of a "dangerous weapon" in Guidelines Section 1B1.3, Application Note 1(d), to provide that "(w)here an object that appeared to be a dangerous weapon was brandished, displayed, or possessed, treat the object as a dangerous weapon." The Commission explained that this amendment was intended "to clarify the definition of a dangerous weapon." Sentencing Guidelines, Appendix C, Amendment No. 71, at C.34 (1990). In this case, petitioner's use of the fake bomb during the robbery qualified for an upward adjustment under the unamended versions of Sentencing Guidelines Sections 1B1.1 and 2B3.1. In McLaughlin v. United States, 476 U.S. 16 (1986), this Court held that an unloaded handgun is a "dangerous weapon" under the federal bank robbery statute, 18 U.S.C. 2113(d). The Court reasoned that "the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue." 476 U.S. at 17-18; see also United States v. Martinez-Jimenez, 864 F.2d 664, 666 (9th Cir. 1989) ("an unloaded gun that only simulates the threat of a loaded gun is a dangerous weapon"). Like the situation posited in McLaughlin, petitioner's display of the bomb -- in a crowded bank -- could have provoked violent responses from the bank guards or created panic among customers and tellers. /1/ Petitioner's fake bomb thus could have been used to injure innocent persons at the crime scene. Indeed, in light of McLaughlin, the Sentencing Commission presumably used the operative term "dangerous weapon" to include weapons and devices -- whether real or fake -- "the display of (which) instill fear in the average citizen." McLaughlin, 476 U.S. at 17-18. Petitioner's bomb was thus "an instrument capable of inflicting death or serious bodily injury." Sentencing Guidelines Section 1B1.1, Application Note 1(d). Accordingly, petitioner suffered no adverse consequences from being treated under the amended versions of Sentencing Guidelines Sections 1B1.1 and 2B3.1. In any event, the Sentencing Commission, the body that has the power to make "clarifying revisions to the Guidelines," Braxton v. United States, No. 90-5358 (May 28, 1991), slip op. 4, amended the pertinent Guidelines to make clear that it intended the initial version of Guidelines Section 1B1.1, Application Note 1(d), to apply to petitioner's conduct. In amending that provision to state expressly that objects that appear to be dangerous weapons should be treated as dangerous weapons, the Commission emphasized that it intended only "to clarify the definition of a dangerous weapon (for purposes of the applicable Guidelines)." Sentencing Guidelines, Appendix C, Amendment No. 71, at C.34 (1990). Thus, the Commission's amendment, as applied to petitioner's offense, did not change substantive law or alter the legal consequences of petitioner's conduct. In any event, because the current version of the Guidelines clearly covers conduct such as the conduct at issue in this case, this case does not present any issue warranting this Court's review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General J. DOUGLAS WILSON Attorney JUNE 1991 /1/ Moreover, if petitioner were so inclined, he could have used the fake bomb, which was made from a pipe, as a bludgeon if the teller had not complied with his demand for cash. See McLaughlin, 476 U.S. at 18 (an unloaded gun is a "dangerous weapon" because it "can cause harm when used as a bludgeon").