United States of America v. Anthony R. Biafore, also known as Anthony Biafore

* Honorable Jan E. DuBois, Senior Judge, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4113
UNITED STATES OF AMERICA
v.
ANTHONY R. BIAFORE,
also known as Anthony Biafore,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. No. 06-cr-00822)
District Judge: Honorable Noel L. Hillman
Submitted Under Third Circuit LAR 34.1(a)
June 25, 2009
Before: BARRY, SMITH, Circuit Judges, and DuBOIS* District Judge
(Opinion Filed: July 14, 2009)
OPINION

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1 Title 18 U.S.C. § 2113(a) provides, in relevant part, “[w]hoever . . . by intimidation,
takes . . . from the person or presence of another . . . any . . . money . . . in the care,
custody, control, management, or possession of, any bank . . . [s]hall be . . . imprisoned
not more than twenty years . . . .” As used in the section, “‘bank’ means any member
bank of the Federal Reserve System . . . and any institution the deposits of which are
insured by the Federal Deposit Insurance Corporation.” Id. at § 2113(f).
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BARRY, Circuit Judge
Defendant Anthony Biafore pled guilty to a one-count information charging him
with bank robbery in violation of 18 U.S.C. §§ 2113(a) and 2.1 He received a within-
Guidelines sentence of fifty-seven months imprisonment, and he appeals. We will affirm.
I. Background
At approximately 9 a.m. on April 22, 2006, Biafore entered the PNC Bank at 3400
Atlantic Avenue in Atlantic City, New Jersey. He thrust his left hand into his pocket as if
he had a weapon and walked directly to the nearest teller window to demand money. The
first teller refused to turn over any money, and Biafore proceeded to a second teller. That
teller complied and turned over approximately $982. Biafore fled on foot. A subsequent
FBI investigation used the bank’s surveillance tape to identify Biafore, who admitted to
the robbery.
On October 10, 2006, Biafore pled guilty pursuant to a written plea agreement.
The agreement set forth the factual basis for the plea, stating, in relevant part, that
“[w]hile in the PNC Bank . . . Biafore approached a teller and demanded money while
thrusting his left hand into his pocket as if he had a weapon.” (Supplemental Appendix at
6.) It further stated that “Biafore acknowledges that at the time he robbed the PNC Bank

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in Atlantic City, the deposits of that bank were insured by the Federal Deposit Insurance
Corporation.” (Id.) Biafore orally verified the contents of the agreement at his plea
colloquy.
Applying the 2007 edition of the Guidelines, the Probation Department initially
calculated Biafore’s total offense level to be twenty. That calculation included a three-
level enhancement for brandishing a dangerous weapon. See U.S.S.G. § 2B3.1(b)(2)(E).
A two-level enhancement was later added because Biafore took “the property of a
financial institution,” id. at § 2B3.1(b)(1). The final Presentence Report (“PSR”) was
issued on October 3, 2007 – fifteen days before sentencing.
At sentencing, defense counsel argued that Biafore’s conduct did not amount to
brandishing as that term is used in U.S.S.G. § 2B3.1(b)(2)(E), because he merely placed
his hand in his pocket and did not represent that he was carrying a firearm. The District
Court was unpersuaded, stating:
[I]t’s clear to me that Mr. Biafore placed his left hand aggressively and
actively in his pocket in a way to create the impression that he had an
instrument of inflicting death . . . and he did so intentionally in order to
induce the teller to turn over money from the bank . . . . His demand for
money, coupled with thrusting his hand into his pocket and keeping it there,
acting in his own mind with the intention of creating the impression of a
weapon, and in fact having created that impression with the teller, are
coupled together sufficient in my mind to . . . apply those additional three
points.
(Appendix at 108.) Defense counsel also argued that the Probation Department’s failure
to comply with Federal Rule of Criminal Procedure 32 – which requires the PSR to be
submitted to the defendant “at least 35 days before sentencing” – amounted to a violation

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of procedural due process. The Court was also not impressed with that contention, noting
that while it was “sensitive to the right of the defendant to raise all possible factual and
legal issues at sentencing in his defense . . . there is no reasonable issue or question as to
the nature of the institutional victim in this case [and] additional time would not result in
the possibility” of a different outcome. (Id. at 97.) The Court continued: “[N]o
reasonable argument can be made that the [§ 2B3.1(b)(1)] specific offense character[istic]
does not apply, the defendant having admitted all the operative facts.” (Id. at 98.)
With a total offense level of twenty-two and a criminal history category of III, the
resultant Guideline range was fifty-one to sixty-three months. The District Court
imposed a sentence of fifty-seven months.
II. Discussion
“We review the District Court’s interpretation of the Sentencing Guidelines de
novo, and scrutinize any findings of fact for clear error.” United States v. Aquino, 555
F.3d 124, 127 (3d Cir. 2009) (citation omitted).
A. Brandishing a Dangerous Weapon
Guideline § 2B3.1(b)(2)(E) provides for a three-level enhancement if the
defendant brandished a dangerous weapon during the commission of the offense. As the
application notes explain, “an object shall be considered to be a dangerous weapon” if
“the defendant used the object in a manner that created the impression that the object was
an instrument capable of inflicting death or serious bodily injury (e.g., a defendant
wrapped a hand in a towel during a bank robbery to create the appearance of a gun).” See

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id. at § 2B3.1 cmt. n. 2. “The Third Circuit was the first to consider whether a hand could
be an object for the purposes of the definition of the term ‘dangerous weapon,’” United
States v. Farrow, 277 F.3d 1260, 1266 (10th Cir. 2002) (citing United States v. Dixon,
982 F.2d 116 (3d Cir. 1992)). We held that where a defendant “did not possess an actual
weapon” but nonetheless “created a reasonable belief that she had a gun,” the
enhancement applied. Dixon, 982 F.2d at 124; see United States v. Stitman, 472 F.3d
983, 986 (7th Cir. 2007) (“courts are to apply an objective standard in determining
whether a particular object appeared to be a dangerous weapon”) (quotation marks and
citations omitted).
Here, Biafore admitted to demanding money from a bank teller “while thrusting
his left hand into his pocket as if he had a weapon,” (Appendix at 54) and one frightened
teller complied. The facts are nearly indistinguishable from those in Dixon, where the
defendant “pointed menacingly” at the bank tellers, with a “towel-draped hand.” 982
F.2d at 119; see U.S.S.G., Appendix C, Amendment 601 (revising Guideline section to
“clarify under what circumstances an object that is not an actual dangerous weapon
should be treated as one” and citing Dixon as a model). The District Court appropriately
applied the enhancement. See Farrow, 277 F.3d at 1261-62, 1268 (applying enhancement
where defendant admitted “he did not have a gun, but did have his hand in his pocket as if
he had one” and told teller not to make him “do something reckless”) (quotation marks
omitted).
B. Due Process

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2 Guideline § 2B3.1 does not define “financial institution,” but the application notes to
§ 2B1.1 state in relevant part, that “‘financial institution’ includes any institution
described in 18 U.S.C. § 20.” Id. at §2B1.1, cmt. n.1; see 18 U.S.C. § 20 (“[a]s used in
this title, the term ‘financial institution’ means . . . an insured depository institution”); see
also United States v. Washington, 462 F.3d 1124, 1142 n.11 (9th Cir. 2006) (noting that
defendant convicted of bank robbery in violation of 18 U.S.C. § 2113(a) necessarily
qualifies for the two-point “financial institution” enhancement because “[b]y any
definition of a ‘financial institution,’ a [federally insured bank] is considered a financial
institution”).
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Biafore contends that the government’s failure to follow Federal Rule of Criminal
Procedure 32(e)(2) by belatedly issuing a final PSR only fifteen days before sentencing
ran afoul of his right to procedural due process. The final PSR included a previously-
absent two-point enhancement for taking the “property of a financial institution.”
U.S.S.G. § 2B3.1(b)(1). 2 We have stated that “due process requires reasonable notice
and a meaningful opportunity to be heard in regard to both the factual predicate of a
sentence and the potential punishments which may be imposed at sentencing.” United
States v. Ausburn, 502 F.3d 313, 326 (3d Cir. 2007). Although we have noted that the
central purpose of Rule 32 is to protect due process considerations, we have not embraced
Biafore’s argument that precise compliance with the rule is a constitutional requirement.
See id. We will not do so now.
A failure to provide the notice required by Rule 32 “may be considered harmless
unless the defendant can prove that he would have done things differently had notice been
given.” United States v. Himler, 355 F.3d 735, 742 (3d Cir. 2004); cf. Irizarry v. United
States, — U.S. —, 128 S.Ct. 2198, 2203 (2008) (noting that because the parties were

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already aware of the District Court’s consideration of 18 U.S.C. § 3553(a) factors, notice
of a “contemplated [] variance” would not “have changed the parties’ presentations in any
material way”). Biafore admitted in his plea agreement and later at his plea colloquy that
he robbed the PNC Bank in Atlantic City, the “deposits [of which] were insured by the
Federal Deposit Insurance Corporation.” (Supplemental Appendix at 6.) He was bound
by that admission at sentencing; indeed, he acknowledged as much when he expressly
declined to seek an “adjournment to provide [time] to conduct additional investigation or
to otherwise respond” to the proposed enhancement. (Appendix at 93.) Any Rule 32
error was, therefore, harmless (and were we to consider the thirty-five day requirement to
be mandated by due process, it was harmless beyond a reasonable doubt).
IV. Conclusion
We will, therefore, affirm the judgment of sentence.

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