United States v. Milton Lavender, United States of Am. v. Steven H. Lee, United States of Am. v. Jose Alfredo Rodriguez, AKA Juan Martinez, 224 F.3d 939 (9th Cir. 2000). · Go Syfert
United States v. Milton Lavender, United States of Am. v. Steven H. Lee, United States of Am. v. Jose Alfredo Rodriguez, AKA Juan Martinez, 224 F.3d 939 (9th Cir. 2000). Cases Citing This Book View Copy Cite
35 citation events (35 in the last 25 years) across 7 distinct courts.
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Cited for
At page 941 Determining if a screwdriver constitutes a dangerous weapon24 citing casesSentencing factors, however, are not separate criminal offenses and as such are not normally required to carry their own mens rea requirements.4 citing courts put it this way · 22 listed here
  • United States v. Bryan Burwell, 690 F.3d 500 (D.C. Cir. 2012).published 2 cites
    (Sentencing factors, however, are not separate criminal offenses and as such are not normally required to carry their own mens rea requirements.)
  • United States v. Rodriguez, 162 F.4th 1016 (9th Cir. 2025).published
    (Sentencing factors . . . are not separate criminal offenses and as such are not normally required to carry their own mens rea requirements.)
  • Sellman v. State, 144 A.3d 771 (Md. 2016).published 2 cites
    (The United States Court of Appeals for the Ninth Circuit categorized a screwdriver as a “dangerous weapon” for the purpose of upholding a sentencing enhancement for a robbery conviction, noting that “[t]here is no doubt…)
  • United States v. Ulibarri, 115 F. Supp. 3d 1308 (D.N.M. 2015).published
    (Sentencing factors ... are not separate criminal offenses and as such are not normally required to carry their own mens rea requirements.)
  • United States v. Fredy Reyes, 772 F.3d 1152 (9th Cir. 2014).published
    (district court’s finding that it was reasonably foreseeable coconspirator would carry and use a dangerous weapon during a bank robbery was not clearly erroneous)
  • United States v. Robert Ahenakew, 530 F. App'x 624 (9th Cir. 2013).unpublished 2 cites
    We review for clear error a district court’s determination that acts by others were reasonably foreseeable for purpose of imposing a dangerous weapon enhancement, see United States v. Lavender, 224 F.3d 939, 941-42 (9th Cir.2000), and find…
  • United States v. Ray, 704 F.3d 1307 (10th Cir. 2013).published
    (no requirement that defendant intended to use as a weapon the object being carried)
  • United States v. Ray, 699 F.3d 1172 (10th Cir. 2012).published
    (no requirement that defendant intended to use as a weapon the object being carried)
  • United States v. Dominguez, 349 F. App'x 154 (9th Cir. 2009).unpublished 2 cites
    (confirming that no showing of intent to use a dangerous weapon as such is required before applying a “dangerous weapon” enhancement)
  • United States v. Pope, 554 F.3d 240 (2d Cir. 2009).published 2 cites
    (holding that “[b]e-cause [defendant] possessed a screwdriver during the [bank] robbery, and a screwdriver is properly classified as a dangerous weapon, the district court did not err by applying the enhancement to him,”…)
Show 12 more citing cases
  • United States v. Evano, 553 F.3d 109 (1st Cir. 2009).published
    United States v. Figuereo, 404 F.3d 537, 541 (1st Cir.2005); United States v. Lavender, 224 F.3d 939, 941 (9th Cir. 2000).
  • United States v. Phuoc Xuan Ngo, 133 F. App'x 439 (9th Cir. 2005).unpublished
    To the extent Ngo argues that these findings were incorrect, we review for clear error “the district court’s determination that a co-conspirator’s actions were reasonably foreseeable.” United States v. Lavender, 224 F.3d 939, 941-42 (9th C…
  • United States v. Nava-Sotelo, 354 F.3d 1202 (10th Cir. 2003).published
    (Sentencing factors ... are not separate criminal offenses and as such are not normally required to carry their own mens rea requirements.)
  • United States v. Krause, 84 F. App'x 915 (9th Cir. 2003).unpublished
    Moreover, the specific wording differs, compare § 111(b) (“deadly or dangerous weapon”), with § 2A2.2(b)(2)(B) (“dangerous weapon”), and the standard of review differs, compare United States v. Moore, 846 F.2d 1163, 1166 (8th Cir.1988) (de…
  • United States v. Hayes, 59 F. App'x 993 (9th Cir. 2003).unpublished
    United States v. Lavender, 224 F.3d 939, 941-42 (9th Cir.2000).
  • United States v. Donald Douglas Franklin, Jr., United States of Am. v. William Edward Piers, 321 F.3d 1231 (9th Cir. 2003).published
    The district court’s factual findings in the sentencing phase are reviewed for clear error, including its determination of whether a defendant’s conduct constituted reckless endangerment, id., and whether a co-conspirator’s actions were re…
  • United States v. Leticia Gonzalez, 262 F.3d 867 (9th Cir. 2001).published 2 cites
    (rejecting argument that section 2B3.1(b)(2)(E) implicitly requires a mens rea of intent)
  • United States v. Walker, 89 F.4th 173 (1st Cir. 2023).published 2 cites
    (rejecting defendant's argument that "dangerous weapons should be considered dangerous weapons for sentencing purposes only when they are carried with the intent to use them as weapons)
  • United States v. Yefei Wen, No. 22-50207 (9th Cir. May 17, 2023).unpublished
    See United States v. Lavender, 224 F.3d 939, 941 (9th Cir. 2000).
  • United States v. Ross, 146 F. App'x 146 (9th Cir. 2005).unpublished
    (district court did not err in adjusting defendant’s sentence based on co-conspirator’s use of a weapon during commission of the offense)
  • United States v. Loew, 593 F.3d 1136 (9th Cir. 2010).published 2 cites
    (district court’s determination that a co-conspirator’s actions were reasonably foreseeable reviewed for clear error)
  • United States v. Warner, 49 F. App'x 753 (9th Cir. 2002).unpublished
    (rejecting the argument that U.S.S.G. § 2B3.1(b)(2)(E) has an implied scienter requirement)
At page 942 the district court’s determination that a co-conspirator’s actions were reasonably foreseeable. United States v. Willis, 899 F.2d 873, 874 (9th Cir.1990). The…2 citing casesopening of page *942 (no citing court says what it cites this page for)
  • United States v. Son Van Ly, 225 F. App'x 685 (9th Cir. 2007).unpublished
    See U.S.S.G. § lB1.3(a)(l)(B) (1998); see also United States v. Hoskins, 282 F.3d 772, 777-78 (9th Cir.2002); United States v. Lavender, 224 F.3d 939, 942 (9th Cir.2000).
  • United States v. Williams, 18 F. App'x 637 (9th Cir. 2001).unpublished
    See United States v. Lavender, 224 F.3d 939, 942 (9th Cir.2000), cert. denied, 531 U.S. 1098 , 121 S.Ct. 828 , 148 L.Ed.2d 711 (2001).
Other citing cases1 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Milton LAVENDER, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Steven H. Lee, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Jose Alfredo Rodriguez, AKA Juan Martinez, Defendant-Appellant
99-50275, 99-50282, 99-50283.
Court of Appeals for the Ninth Circuit.
Aug 29, 2000.
Published opinion
224 F.3d 939
2000 Cal. Daily Op. Serv. 7265
2000 U.S. App. LEXIS 22026
C. Thomas McDonald, Santa Ana, California, for defendant-appellant Lavender; John W. Barton, Newport Beach, California, for defendant-appellant Lee; James L. Waltz, Laguna Hills, California, for defendant-appellant Rodriguez., Susan R. Ficcadenti, Assistant United States Attorney, Santa Ana, California, for the plaintiff-appellee.
Wallace, Trott, Gould.
Cited by 30 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: #44,052 of 633,719
Citer courts: Ninth Circuit (2)
WALLACE, Circuit Judge:

Lee, Lavender, and Rodriguez appeal from sentences imposed after they pled guilty to aiding and abetting each other in a bank robbery, in violation of 18 U.S.C. §§ 2(a), 2113(a). They argue against sentence enhancements applied pursuant to United States Sentencing Guideline § 2B3.1(b)(2)(E). The district court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742, and we affirm.

I

On April 24, 1997, the defendants robbed a Wells Fargo Bank in Buena Park, California. When the van carrying the robbers arrived at the bank, Lee was wearing a dark colored ski mask, with holes cut out for vision and breathing, and a dark colored jogging suit. He jumped out of the van and, with one hand concealed under his jogging suit at stomach level, approached the security guard standing outside of the bank. Lee swore at the guard, pressed something into the guard’s back, and ordered him to jog towards the bank entrance. The security guard believed that Lee had pressed a gun into his back. While Lee forced the guard[*941] toward the bank, the guard ■ stated he “heard [Lee] drop what he had been pressing up against [his] back and it made a metallic sound as it hit the ground.” Lee denied having a gun at that time, but admitted to having dropped a screwdriver he was carrying, asserting it was carried in case they needed to steal another car. Based on this conduct, the district court applied the sentence enhancement described in section 2B3.1(b)(2)(E) of the Guidelines: “if a dangerous weapon was brandished, displayed, or possessed, increase by 3 levels.”

II

We start with the fact that Lee admits that he was carrying a screwdriver during the robbery. Thus, the first issue is whether a screwdriver is properly characterized as a dangerous weapon for sentencing purposes. The district court’s conclusion that a particular item falls within the Sentencing Guidelines’ definition of “dangerous weapon” is an issue of law that is reviewed de novo. United States v. Boyd, 924 F.2d 945, 946-47 (9th Cir.1991). The commentary to section 2B3.1 defines dangerous weapon by adopting the text in the commentary to section 1B1.1: “an instrument capable of inflicting death or serious bodily injury.” There is no doubt that a screwdriver can be used to stab someone in the throat or chest, or to gouge out someone’s eye, causing serious bodily injury. It was therefore properly categorized by the district court as a dangerous weapon. This straightforward determination comports with our previous rulings on similar potential weapons. See United States v. Smith, 905 F.2d 1296, 1300 (9th Cir.1990) (determining an inoperable gun to be a dangerous weapon because it “can also cause harm when used as a bludgeon”), superseded on other grounds by amendment to the Guidelines, United States v. Burnett, 16 F.3d 358, 360 n. 1 (9th Cir.1994); United States v. Enos, 453 F.2d 342, 343 (9th Cir.1972) (upholding a conviction for assault with a dangerous and deadly weapon based on an attack with a “poeketknife” with a “two inch blade”).

Lee does not dispute that screwdrivers are capable of causing death or serious bodily harm. Rather, he argues that, despite the clear language of the text requiring only “possession,” dangerous weapons should be considered dangerous weapons for sentencing purposes only when they are carried with the intent to use them as weapons. Sentencing factors, however, are not separate criminal offenses and as such are not normally required to carry their own mens rea requirements. See United States v. Sherbondy, 865 F.2d 996, 1001-02 (9th Cir.1988). Furthermore, accepting Lee’s reasoning-requiring proof of mens rea before allowing enhancements under section 2B3.1(b)(2)(E) — would have an absurd result: future defendants would be able to carry large knives during bank robberies and remain exempt from sentence enhancements so long as they legitimately intended to use their knives only for cutting steaks at post-robbery celebrations. Because Lee possessed a screwdriver during the robbery, and a screwdriver is properly classified as a dangerous weapon, the district court did not err by applying the enhancement to him.

Ill

After applying the sentence enhancement to Lee, the district court made a further factual finding that Lee’s use of a dangerous weapon was foreseeable to Lavender and Rodriguez and applied the same enhancement to them. Lavender and Rodriguez argue that Lee’s possession of the screwdriver should not be imputed to them because there is no specific evidence that they knew that he had it or that he was going to have a confrontation with a guard. As Rodriguez asserts, “[w]hatever occurred between the guard and Lee, that momentary conduct occurred on the sidewalk while the robbers were inside the bank and while [I] was waiting in the Jeep.”

The district court’s factual findings in the sentencing phase are reviewed for clear error, United States v. Frega, 179 F.3d 793, 811 n. 22 (9th Cir.1999), as is[*942] the district court’s determination that a co-conspirator’s actions were reasonably foreseeable. United States v. Willis, 899 F.2d 873, 874 (9th Cir.1990). The district court examined the evidence and the pre-sentence report and found that the robbery “was coordinated in terms of timing and in terms of role selection and it was planned out what everybody was supposed to do and everybody carefully pursued their role.” The district court also found that the robbery was “very carefully ... orchestrated.” When co-conspirators are involved in a highly planned operation such as this one, the law assumes that each participant is aware of the others’ general plans. See United States v. Zelaya, 114 F.3d 869, 871-72 (9th Cir.1997) (collecting cases). The robbers all knew that they were going to have to intimidate any customers, tellers, and guards who were present. No defendant presents any explanation for how Lee would have been expected to subdue the guard other than by showing (or pretending to have) some sort of weapon, as he did. Thus, the district court did not clearly err by finding Lee’s use of a dangerous weapon foreseeable to Lavender and Rodriguez.

AFFIRMED.