US v. Beaudion

No. 04-30197 (7-19-05). The 9th holds, for 924(c) purposes, that there is a distinction between "use" and "brandish" . The defendant went into a bank, and robbed it. He placed a sawed off .22 caliber rifle on one, and then another, teller's window counters. He was caught shortly thereafter. The district court found that he had brandished the weapon and gave him 84 mos (7 years) under the mandatory 924(c) sentence. On appeal, defendant argued that use and brandish are ambiguous and that the statutory scheme provides two sentences for the same conduct. The 9th parsed the meanings, and distinguished "use" from "brandish," which it defined as basically display or showing with intent to intimidate. "Use" can be a hidden weapon, and some act, such as using the firearm to break a lock, or barter (the court's examples, not mine). It seems that if bank robbers show or display the weapon, or even part of it, or made it known, then they will be deemed to have brandished it. 924(c)(1)(D)(4). "Use" will be no show. The 9th avoided deciding whether Harris is good law still by sidestepping, holding that the defendant had plead to use to brandishing and so no sixth amendment issue was presented. The case was remanded for resentencing pursuant to Ameline.