United States of America v. Walter W. Wilson, Jr

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 03-2496
____________
UNITED STATES OF AMERICA
v.
WALTER W. WILSON, JR.,
Appellant
____________
On Appeal from the
United States District Court
for the District of New Jersey
(D.C. Criminal No. 03-cr-00068)
District Judge:
Honorable Jerome B. Simandle
____________
Argued February 25, 2004
Before: RENDELL, BARRY
and FISHER, Circuit Judges.
(Filed: May 27, 2004)
Richard Coughlin
Lori M. Koch (Argued)
Office of Federal Public Defender
800-840 Cooper Street, Suite 350
Camden, NJ 08102
Attorneys for Appellant
George S. Leone
Sabrina G. Comizzoli (Argued)
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Attorneys for Appellee
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Defendant Walter W. Wilson, Jr.
appeals from his judgment of sentence,
arguing that the district court erred in
holding that he “otherwise used” a fake
bomb during a bank robbery rather than
merely “brandishing” it, thus meriting a
four-point offense level enhancement
under U.S.S.G. § 2B3.1(b)(2). Because
Wilson placed the bomb in close proximity
to a bank teller and made explicit threats to
imminently detonate the bomb if the teller
did not comply with his demands, Wilson
went be yond mere “brandishing.”
Accordingly, Wilson “otherwise used” the
fake bomb for purposes of U.S.S.G. §
2B3.1(b)(2). We will therefore affirm the
judgment of the district court.
I. Background
On October 21, 2002, Wilson
entered the Pennsville National Bank in
Elmer, New Jersey. He was carrying a
backpack and a duffle bag, and had what
he later claimed was a toy gun stuffed in
the waistband of his trousers. The
backpack contained a fake bomb made out
of a two-liter bottle, PVC pipe, duct tape,
and a toy cellular phone as a fake
triggering device. Wilson approached a
teller, saying “This is not a joke, give me

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your money.” He moved his jacket aside
to display the handle of the toy gun.
Wilson further stated, “I also have a bomb
that can be detonated by a cell phone, you
have 40 seconds.” He put the backpack on
the counter, approximately 18 inches in
front of the teller. Although the teller
could not recall whether the backpack was
open or shut, she believed that the
backpack contained a real bomb.
Wilson handed the teller a note that
read (emphasis and misspellings in
original):
No Alarms!
You scream I shoot
I have a Gun and a bomb is hookup
to
a phone you have 40 sec To Fill
This bag up
with untraceable money 100$. 50$.
20$
NO REd DYES! IF anybody
TRYS TO STOP ME
OR Follow ME I Push Redail And
Bank Blows UP!
NObody leves the Bank For 20 min
I have pepole wAtching they will
Be shot!
I have Nothing To Loose!
The teller put approximately $2,250
in the duffle bag and Wilson left to join his
wife and children, who were waiting in a
car parked down the street.
Investigators identified Wilson’s
fingerprints on the demand note and he
was later arrested. On January 29, 2003,
Wilson pled guilty to bank robbery, 18
U.S.C. § 2113. The parties stated in a plea
agreement that they would stipulate at
sentencing that Wilson’s offense involved
a “dangerous weapon” or “dangerous
weapons,” triggering the specific offense
characteristic enhancement under U.S.S.G.
§ 2B3.1(b)(2). The parties reserved the
right to argue whether the enhancement
would be three levels for “brandishing” or
four levels for “otherwise using.”
A l t h o u g h t h e p r o b a ti o n o f f ic e r
recommended only a three-level
enhancement for “brandishing,” the
government requested a four-level
enhancement for “otherwise using.”
At the sentencing hearing on May
16, 2003, the district court concluded that
Wilson had not merely “brandished” the
fake bomb: “A brandishing would be
carrying the bomb in a gym bag in sight of
the teller and saying: You know what that
is?” Rather, there were “multiple threats
contained in the note that this bomb would
be used imminently and that it would be
used against this teller.” By “placing the
bomb device on the counter, explaining its
mechanism, which is that it would be
detonated by phone, the common sense
that the phone detonation would occur
almost instantaneously, and the fact that
the bomb was in direct proximity of the
teller and therefore was directed at her if
she failed to comply, satisfies the test.” In
addition, the court held that the presence

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of the gun in Wilson’s pants made the
bomb threat more credible.
Thus, stated the court, “[i]t’s the
equivalent of pointing a bomb at the teller”
or “the equivalent of taking the toy gun out
and pointing it at the teller saying ‘I’ll pull
this trigger if you don’t comply.’” The
defendant was essentially saying “‘I’ll
detonate this bomb through the use of this
cell phone if you don’t comply.’”
Although the teller could not recall
whether the backpack was open or shut,
the court concluded that a picture of the
crime scene showing an open backpack
proved that it was “possible to see inside
the bag” and that the open bag was “what
the teller saw.”1 The court found “[t]here
is no doubt that the teller knew she would
be blown up by this device within seconds,
and that what she saw made the threats
concrete.” The court thus concluded that
Wilson had “otherwise used” the bomb,
and applied a four-level enhancement.
Wilson was sentenced to fifty-one months
of imprisonment, three years of supervised
release, restitution of $2,254, and a special
1The teller never actually testified.
Rather, the U.S. Attorney described the
testimony that the teller would have
provided had she testified. Although the
teller could not recall whether the
backpack was open or shut, the
government entered into evidence
photographs that it said had been taken
before the bomb was disturbed. After
filing its brief in this appeal, the
government discovered that the crime
scene had in fact been disturbed. The
backpack had been cut open by a detective
from the New Jersey State Police
Arson/Bomb Unit to reveal its contents
before at least some of the pictures were
taken. Thus, the photograph relied upon
by the district court did not show an
undisturbed crime scene, but instead
showed the backpack with a cut made after
the crime was completed. Moreover,
conceded the government, the photograph
at question showed the contents of the bag
not from the teller’s perspective, but from
the perspective of Wilson. Thus, it cannot
be said that this particular photograph
proves whether the teller saw the contents
of the backpack.
Recognizing this, in a post-brief
submission, the government included other
photographs that had been put in evidence
before the district judge. Some of these
photographs show the backpack open from
the teller’s apparent point of view, with
this opening due to an open zipper rather
than to the cut made by the detective. The
government argues that these other
photographs support the district court’s
conclusion that the teller saw the contents
of the backpack. For his part, Wilson
objects to the district court’s use of the
photographs to determine what the teller
saw because the teller could not remember
whether the backpack was open or shut.
We need not resolve this dispute.
As discussed infra, we base our conclusion
on other undisputed evidence of record,
and need not consider whether the teller
saw the backpack’s contents.

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4
assessment of $100. This timely appeal
followed.
II. Discussion
The issue before the Court is
narrow – whether Wilson “brandished” or
“otherwise used” the fake bomb in
connection with the bank robbery.
“Brandishing” merits a three-level
enhancement, whereas “otherwise using”
merits four. U.S.S.G. § 2B3.1(b)(2).
Wilson argues that in order to conclude
that he “otherwise used” a fake bomb, the
district court was required to find that he
“pointed the bomb at the victim while
issuing a specific threat or order.” The
government counters that Wilson made
specific verbal and written threats to the
teller, which along with the positioning of
his backpack, constituted “otherwise use”
of the fake bomb.
The district court had subject matter
jurisdiction pursuant to 18 U.S.C. § 3231.
We have jurisdiction of this timely appeal
pursuant to 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291. Our review of the district
court’s interpretation of the Sentencing
Guidelines is plenary. United States v.
Thomas, 327 F.3d 253, 255 (3d Cir.)
(citing United States v. Day, 272 F.3d 216,
217 (3d Cir. 2001)), cert. denied, 124 S.
Ct. 451 (2003). Determinations of fact are
reviewed for clear error. Id. (citing United
States v. Carr, 25 F.3d 1194 (3d Cir.
1994)). In addition, we “‘give due
deference to the district court’s application
of the guidelines to the facts.’” Id.
(quoting 18 U.S.C. § 3742(e)).
We begin by examining the relevant
guideline, U.S.S.G. § 2B3.1, which
provides the base offense level for
robbery. Of particular relevance is the
spec ific offense characteristic for
dangerous weapons:
(A) If a firearm was discharged,
increase by 7 levels; (B) if a
firearm was otherwise used,
increase by 6 levels; (C) if a
firearm was brandished or
possessed, increase by 5 levels;
(D) if a dangerous weapon was
otherwise used, increase by 4
levels; (E) if a dangerous weapon
was brandished or possessed,
increase by 3 levels; or (F) if a
threat of death was made, increase
by 2 levels.
Id. § 2B3.1(b)(2) (emphasis in original).2
It is undisputed that Wilson’s fake
bomb was a “dangerous weapon” for
sentencing purposes.3 Thus, we must
2Wilson was sentenced on May 16,
2003, so we turn to the 2002 guidelines, as
amended as of that date. See U.S.S.G. §
1B1.11(a) (unless the ex post facto clause
would be violated, “[t]he court shall use
the Guidelines Manual in effect on the
date that the defendant is sentenced”).
3Wilson concedes that the fake
bomb and fake gun were “dangerous
weapons” for guidelines purposes. Such
concessions were proper – an object that
appears to be a dangerous weapon shall be
considered to be a dangerous weapon for

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determine whether the dangerous weapon
was “brandished” or “otherwise used.”
The application notes to the Sentencing
Guidelines provide definitions of
“brandished” and “otherwise used:”
“Brandished” with reference to a
dangerous weapon (including a
firearm) means that all or part of
the weapon was displayed, or the
presence of the weapon was
otherwise made known to another
person, in order to intimidate that
person, regardless of whether the
weapon was directly visible to that
person. Accordingly, although the
dangerous weapon does not have to
be directly visible, the weapon must
be present.
. . . .
“Otherwise used” with reference to
a dangerous weapon (including a
firearm) means that the conduct did
not amount to the discharge of a
firearm but was more than
bran dis h i n g , disp laying , o r
possessing a firearm or other
dangerous weapon.
U.S.S.G. § 1B1.1 applic. nn. 1(c), (f)
(original italics removed). Thus,
“otherwise used” means “more than
brandishing, displaying, or possessing . . .
a dangerous weapon,” but does not rise to
the level of “discharge of a firearm.” Id. §
1B1.1 applic. n. 1(f) (original italics
removed). Although the definition of
“otherwise used” is not particularly
helpful, we understand it to require us to
examine the nexus between the dangerous
weapon and the relevant conduct, and
determine whether the conduct amounts to
more than mere “brandishing.” Conduct
that is “more” than mere “brandishing”
need not rise to actual use or attempted use
of the weapon to inflict harm.4
purposes of U.S.S.G. § 2B3.1(b)(2).
United States v. Orr, 312 F.3d 141, 143-44
(3d Cir. 2002) (discussing U.S.S.G. §§
1B1.1 applic. n. 1(d), 2B3.1 applic. n. 2
(2001)). The guidelines define a
“dangerous weapon” to include, among
other things:
an object that is not an instrument
capable of inflicting death or
serious bodily injury but (I) closely
resembles such an instrument; or
(II) the defendant used the object in
a manner that created the
impression that the object was such
an instrument (e.g. a defendant
wrapped a hand in a towel during a
bank robbery to create the
appearance of a gun).
U.S.S.G. § 1B1.1 applic. n. 1(d) (original
italics removed); see also id. § 2B3.1
applic. n. 2. Here, the backpack
containing the fake bomb was used in a
manner to create the impression that it was
a real bomb.
4For firearms, the guideline
recognizes further gradations of conduct
than it does for the broader category of
dangerous weapons. Discharge of a
firearm merits a larger enhancement than
“otherwise using.” Compare U.S.S.G. §
2B3.1(b)(2)(A) (7 levels if firearm is

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In the first of two identically named
but unrelated Johnson cases, we construed
the meaning of “otherwise used” in the
context of U.S.S.G. § 2A2.2(b), the
guideline for aggravated assault. United
States v. Johnson, 931 F.2d 238 (3d Cir.
1991) (“Johnson I”). The defendant had
pointed a gun at the victim’s head from a
distance of one or two feet, ordered her not
to start her car or he would “blow [her]
head off,” and demanded her money. Id.
at 240 (alteration in original). Johnson
argued that his mere threat meant that he
had merely brandished the gun. We
disagreed. Whereas “brandish” in the
context of the guidelines “denot[ed] a
generalized rather than a specific threat,”
we concluded that where a defendant
“actually leveled the gun at the head of the
victim at close range and verbalized a
threat to discharge the weapon, the
conduct is properly classified as ‘otherwise
using’ a firearm.” Id.
In the second Johnson case, the
defendant and his cohorts robbed several
jewelry stores. United States v. Johnson,
199 F.3d 123 (3d Cir. 1999) (“Johnson
II”). In one of the robberies, one of
several defendants wielding baseball bats
threatened to hit an employee with the bat
unless she put a phone down, lest he break
her neck or “knock her damn head off.”
Id. at 124-25, 127. Johnson and others
used sledgehammers to break open jewelry
cases. We concluded that Johnson would
be imputed with the others’ conduct and
that a four-level enhancement was
warranted for “otherwise using.” Id. at
127-28. “Courts of Appeals have
generally distinguished between the
general pointing or waving about of a
weapon, which amounts to ‘brandishing,’
and the pointing of a weapon at a specific
victim or group of victims to force them to
comply with the robber’s demands.” Id. at
126. According to those courts,
“‘brandishing’ constitutes an implicit
threat that force might be used, while a
weapon is ‘otherwise used’ when the
threat becomes more explicit.” Id. (citing
cases).
Thus, “[p]ointing a weapon at a
specific person or group of people, in a
manner that is explicitly threatening, is
sufficient to make out ‘otherwise use’ of
that weapon.” Id. at 127. This was “true
when any dangerous weapon is employed:
It need not be a firearm.” Id. (emphasis in
original). Moreover, we noted that verbal
threats were not required – non-verbal
conduct could also suffice. Id. (citing
United States v. Nguyen, 190 F.3d 656
(5th Cir. 1999)).5 Thus, Johnson had
discharged), with id. § 2B3.1(b)(2)(B) (6
levels if firearm is “otherwise used”). For
dangerous weapons, any conduct beyond
mere “brandishing” constitutes “otherwise
using.” See id. § 2B3.1(b)(2)(D) (4 levels
if dangerous weapon is “otherwise used”).
Thus, it does not matter if a defendant
uses, attempts to use, or engages in some
other conduct relating to a dangerous
weapon, so long as it amounts to more
than mere “brandishing.”
5In Johnson II, we cited with
approval to the First Circuit’s opinion in

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“otherwise used” dangerous weapons in
two ways: through a co-defendant’s use of
the baseball bat, and through his own
conduct in using the sledgehammer to
coerce and threaten others by smashing
open jewelry cases while a co-defendant
threatened an employee with the baseball
bat. Id. at 127-28.
We confronted whether conduct
without an explicit verbal threat could be
“otherwise using” in United States v. Orr,
312 F.3d 141 (3d Cir. 2002), where the
defendant robbed a credit union carrying
what appeared to be a handgun but was in
fact a pellet gun. Orr held the gun to the
assistant manager’s head and directed her
to empty a cash box into a garbage bag.
We noted that in Johnson I and Johnson II,
the defendants had “otherwise used”
dangerous weapons by (1) pointing or
raising a weapon at a vic tim;
(2) threatening to harm or kill; and (3)
making demands for money or other
actions. Id. at 144-45 (citing Johnson II,
199 F.3d 123; Johnson I, 931 F.2d at 240).
In Orr, a demand for money was made, but
the threat to shoot was made only through
the defendant’s conduct. We concluded
that “[n]either the guidelines nor the
caselaw requires infliction of the violent
physical contact Orr suggests or a
verbalized threat to harm the victim in
order to constitute ‘otherwise used.’” Id.
at 145.
There is little case law on when a
bomb or incendiary device, fake or real,
has been “otherwise used.” However, this
issue arose in the Eleventh Circuit in
United States v. Miller, 206 F.3d 1051
(11th Cir. 2000), where the defendant
approached a bank teller, displayed what
looked like a bomb, lit the fuse, and asked
United States v. LaFortune, 192 F.3d 157
(1st Cir. 1999). See Johnson II, 199 F.3d
at 127. In LaFortune, the defendant had
pointed a cocked gun at the head of one
teller, holding the gun in his hand while
shoving a customer to the floor and
ordering her to get down and not to talk,
and aimed the weapon directly at another
bank employee while giving orders. 192
F.3d at 161. The Court concluded that
LaFortune had “otherwise used” the
weapon:
a person may “brandish” a weapon
to “advise” those concerned that he
possesses the general ability to do
violence, and that violence is
imm inently and immediately
available. A general, or even
pompous, showing of weapons,
involving what one would consider
an arrogant demonstration of their
p r e s e n c e , c o n s t i t u t e s t h e
generalized warning that these
weapons may be, in the future,
used and not merely brandished.
Altering this general display of
weaponry by specifically leveling
a cocked firearm at the head or
body of a bank teller or customer,
ordering them to move or be quiet
according to one’s direction, is a
cessation of “brandishing” and the
commencement of “otherw ise
used.”
Id. at 161-62 (emphasis in original).

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her if she knew what “it” was. He
demanded money without dye packs. The
Court concluded that Miller did not just
display or brandish the fake bomb – he
actually lit the fuse while explicitly
threatening the teller. Id. at 1054. The
Court held that “lighting the fuse is like
the cocking of a handgun,” making the
dangerous weapon “otherwise used.” Id.;
cf. United States v. Waskom, 179 F.3d
303, 314-15 (5th Cir. 1999) (construction
and detonation of test bombs in connection
with conspiracy to commit robbery, with
plans to detonate additional bombs as
diversion for upcoming robbery, showed
bombs were “otherwise used”).6
Turning to the facts at hand, we
conclude that Wilson “otherwise used” the
fake bomb. He made explicit verbal and
written threats that he would detonate the
bomb if the teller did not comply with his
demands. He said “This is not a joke, give
me your money,” and demanded, both
verbally and in writing, that the teller give
him money. He also said that he had “a
bomb that can be detonated by a cell
phone, you have 40 seconds.” His demand
note said his bomb was hooked up to a
phone, gave the teller 40 seconds to hand
over untraceable money without red dye,
and indicated that if anybody tried to stop
him, he would push redial and blow up the
bank, which would necessarily include
blowing up the teller. Wilson’s actions
were also explicitly threatening. He
placed the bomb in close proximity to the
teller, 18 inches away.7 Indeed, the teller
believed that the backpack contained a real
bomb. Wilson also displayed what
appeared to be a gun stuffed in the
waistband of his trousers.8 Accordingly,
Wilson “otherwise used” the fake bomb.
6Other cases have involved fake
bombs employed in bank robberies in
connection with explicit threats. See, e.g.,
United States v. Rodriguez, 301 F.3d 666,
667 (6th Cir. 2002); United States v. Hart,
226 F.3d 602, 603-04 (7th Cir. 2000).
Neither of these cases addressed whether
the fake bombs were “otherwise used,”
instead discussing whether they were
dangerous weapons in the first place.
7We do not suggest that a bomb
must be close to a victim for it to be
“otherwise used.” Nor do we opine on
how or whether a bomb’s distance might
affect the calculus. Limiting ourselves to
the facts of this case – the proximity of the
fake bomb to the teller, Wilson’s explicit
verbal and written statements, and his
other actions – compels the conclusion that
the fake bomb was “otherwise used.” Cf.
United States v. Yelverton, 197 F.3d 531,
533-34 (D.C. Cir. 1999) (construing
U.S.S.G. § 2A4.1(b)(3) (1995) and
concluding that kidnapper “otherwise
used” gun when, to induce payment of
ransom, he showed mother a picture of her
child with a gun pointed to his head).
8Although the conduct with the gun
was not directly tied to the fake bomb, we
agree with the district court that the gun
made Wilson’s threats regarding the fake
bomb more credible.

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Wilson attempts to distinguish
Miller on its facts because Miller had gone
further, lighting the fuse of his fake bomb.
In contrast, says Wilson, he never took the
bomb out of the backpack, waved or
pointed the backpack at the teller, moved
the backpack, or reached for the detonator.
Wilson’s argument misses the mark. Such
additional steps are no doubt sufficient to
show “otherwise use.” They are not,
however, necessary. Although Miller
noted that “lighting the fuse is like the
cocking of a handgun,” the gun need not
be “cocked” – the mere pointing of a
weapon, in connection with explicit
threats, is sufficient.
Here, the fake bomb was essentially
“pointed” at the victim by its placement
within 18 inches of her body. Wilson
made explicit verbal and written threats in
connection with the fake bomb. The
conduct was undertaken to heighten the
teller’s fear in order to facilitate the
robbery. Yelverton, 197 F.3d at 534 (“the
key consideration is whether a gun (or
other weapon) was pointed at a specific
person in an effort to create fear so as to
facilitate compliance with a demand, and
ultimately to facilitate the commission of
the crime”). Wilson’s conduct is
analogous to pointing a gun at the teller’s
head and threatening to shoot lest the teller
fail to comply. Accordingly, Wilson’s use
of the fake bomb was like the pointing of
a handgun, making it “otherwise used.”9
9Wilson would have us conclude
that the evidence of record – which clearly
e v i d e n c e s f a r m o r e th a n m e re
“brandishing” – can not constitute
“otherwise using.” Such a conclusion runs
counter to the bulk of authority and our
prior cases. As stated by the D.C. Circuit:
Virtually all of the circuits to
address the question have held that
where a dangerous weapon is
pointed at a person and some
further verbal threat or order
accompanies the pointing of the
weapon to facilitate commission of
t h e u n d e r l y i n g c r i m e , a n
enhancement for the use of the
weapon is justified.
Yelverton, 197 F.3d at 534 (citing cases).
Cases to the contrary ignore the fact
t h a t a n y c o n d u ct b eyond mere
“brandishing” is “otherwise using.” In
United States v. Matthews, 20 F.3d 538
(2d Cir. 1994), the defendants ordered
bank robbery victims to lie on the floor,
pointed their weapons at them, and
threatened to kill anyone who disobeyed.
The Second Circuit concluded that the
addition of an explicit verbal threat did not
constitute additional use of the weapon,
and therefore was mere “brandishing.” Id.
at 554; see also United States v. Moerman,
233 F.3d 379, 381 (6th Cir. 2000)
(pointing of gun combined with verbal
demand not “otherwise using”); United
States v. Gonzales, 40 F.3d 735, 740 (5th
Cir. 1994) (same).
We rejected Matthews in Johnson
II, where we cited to Matthews with a “But
see.” See Johnson II, 199 F.3d at 126-27
(following other circuits and citing
Matthews as contrary authority). Indeed,

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Defendant also cites to United
States v. Kushmaul, 147 F.3d 498 (6th Cir.
1998), where the defendant used one hand
to force a victim to the floor during a bank
robbery. In Kushmaul’s other hand was a
baseball bat, which Kushmaul never
raised. He told the victim, among other
things, “Be quiet and I won’t hurt you.”
Id. at 499. The Court concluded that “the
a s s a u l t w a s c o m m i t t e d e nt i re ly
independently of the bat.” Id. at 501.
Although the defendant verba lly
threatened the woman, he did so “without
reference” to the bat. Id. Accordingly, the
assault and threat were not relevant to an
assessment of how the defendant used the
weapon. Id.
N o t o n l y i s K u s h m a u l
distinguishable on its facts, but its result
supports our conclusion. We read
Kushmaul to stand for the proposition that
there must be a nexus between the
dangerous weapon and the conduct alleged
to constitute “otherwise use” of that
weapon. In Kushmaul, that nexus was
lacking. The weapon was not – through
words or actions – specifically used in
connection with a demand or threat. In
contrast, Wilson, through his words and
actions, made specific use of and reference
to the fake bomb in connection with his
demand and threat.10
Finally, Wilson argues that the
district court clearly erred in concluding
that the teller saw the contents of the
backpack containing the fake bomb. This
argument is in theory enhanced by the
government’s concession on appeal that
the photograph of the open backpack cited
by the district court turned out to show a
backpack that had been cut open after the
robbery. But whether or not the teller saw
the backpack’s contents is irrelevant.
the holding of Matthews is irreconcilable
with Johnson II, where we held that
“[p]ointing a weapon at a specific person
or group of people, in a manner that is
explicitly threatening, is sufficient to make
out ‘otherwise use’ of that weapon.” Id. at
127. Other Courts of Appeals have held
similarly. See United States v. Cover, 199
F.3d 1270, 1279 (11th Cir. 2000) (treating
M a tt he w s as contrary au thor ity);
LaFortune, 192 F.3d at 161 (rejecting
Matthews); Yelverton, 197 F.3d at 534 n.2
(treating Matthews and Gonzales as
contrary authority); United States v.
Wooden, 169 F.3d 674, 677 n.5 (11th Cir.
1 9 9 9 ) ( r e je c t in g G o n z a l e s a n d
distinguishing Matthews).
10Wilson also quotes Kushmaul for
the proposition that “‘[o]ther use in the
non-firearm context . . . necessarily
includes the most extreme thing one can
do with a weapon, that is, using it to
actually injure, or attempt to injure, a
victim.’” Wilson Br. at 13 (quoting
Kushmaul, 147 F.3d at 502). This
proposition does not help Wilson.
Although “the most extreme thing” can
constitute “otherwise using,” lesser
conduct may satisfy “otherwise using” as
well. See n. 4, supra. In other words,
Wilson did not have to try to blow up the
teller in order to “otherwise use” his fake
bomb.

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11
Wilson concedes that the fake bomb was a
dangerous weapon and it is undisputed that
the teller believed the bomb to be real.
Indeed, the fake bomb was used in a
manner to suggest that it was real, making
it a dangerous weapon for guidelines
purposes. See U.S.S.G. § 1B1.1 applic. n.
1(d) (object used “in a manner that created
the impression that the object was such an
instrument” is dangerous weapon). One
need not see a fake bomb in order for it to
constitute a dangerous weapon. See
Rodriguez, 301 F.3d at 669 (styrofoam
sandwich box put forth as bomb properly
found to be “dangerous weapon”); Hart,
226 F.3d at 609 (lunch box and shoe box
put forth as bomb properly found to be
“dangerous weapons”). As undisputed
evidence of record compels the conclusion
that Wilson “otherwise used” the fake
bomb, it does not matter whether or not the
teller saw the contents of the backpack.11
III.
By placing a fake bomb close to a
bank teller who believed it to be real, and
by making explicit verbal and written
threats to imminently detonate the bomb if
the teller did not comply with his demands,
Wilson went beyond mere “brandishing.”
His conduct is analogous to pointing a gun
at a teller’s head, making demands, and
threatening to shoot unless the teller
complies. We therefore conclude that
Wilson “otherwise used” the fake bomb
for sentencing purposes and that the four-
level enhancement was correct.
Accordingly, the judgment of the
district court will be AFFIRMED.
11The government notes that other
photographs entered into evidence before
the district court show an unzippered
backpack that could have been viewed
from the teller’s perspective, thus arguing
that the district court did not clearly err in
concluding that the teller saw the
backpack’s contents. We need not decide
whether the district court clearly erred
because the undisputed evidence of record
compels the conclusion that the fake bomb
was “otherwise used.” Even if the district
court erred, it is well-settled that we may
affirm its judgment on different grounds.
See United States v. Miller, 224 F.3d 247,
248 n.1 (3d Cir. 2000) (“We may affirm a
District Court’s judgment on grounds other
than those considered by the District Court
itself.” (emphasis in original)); see also
United States v. Garnett, 243 F.3d 824,
830 (4th Cir. 2001) (“we can affirm [a]
sentence on the basis of any conduct [in
the record] that independently and properly
should result in an increase in the offense
level” (second alteration in original,
quotation marks removed)).

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