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United States v. Beener

United States District Court, N.D. Iowa, Cedar Rapids Division

June 17, 2019



          C.J. Williams United States District Judge

         This matter is before the Court on defendants' sentencing for the crimes of Attempted Robbery (Count 1) and the Use, Possession, and Brandishing of a Firearm in Furtherance of a Crime of Violence (Count 2). The government objects to the failure of the probation office to: (1) assess each defendant with a four-level enhancement under USSG §2B3.1(b)(2)(D) for possession of a dangerous weapon, and (2) find that each defendant is responsible to pay restitution to the family of a man killed during the attempted robbery. On June 17, 2019, the Court held a sentencing hearing and heard argument on these issues. For the reasons that follow, the Court finds that defendants should not be assessed with a four-level increase for possession of a dangerous weapon under USSG §2B3.1(b)(2)(D), and that the deceased does not qualify as a victim of the crimes of conviction. The government's objections are therefore overruled.

         I. BACKGROUND

         Chase Zerba, Tyler Clemens, and Cameron Klouda conspired to distribute marijuana to Dillon Beener. On February 1, 2017, Zerba arranged to meet defendant Dillon Beener to distribute marijuana to him. Zerba correctly suspected that defendant Beener may attempt to rob him. Clemens and Klouda were present at Zerba's home when they left to meet up with defendant Beener. Clemens saw a shotgun on a table in Zerba's home and asked if he should bring it along. Zerba agreed he should do so. Clemens loaded the shotgun and brought it with him when he got into Klouda's van.

         Meanwhile, defendant Beener had conspired with Dylan Plotz to rob Zerba of marijuana. Plotz was armed with a handgun. Defendant Beener and Plotz, along with defendant Kordell Jones and a minor then drove to meet with and rob Zerba. When they arrived at the meeting with Zerba, defendant Beener got out of his vehicle and, armed with Plotz's handgun, climbed into Klouda's van. A discussion about the drug deal took place, defendant Beener then claimed to have left some of the buy money in the other car, and left the van, rejoining Plotz and the others. Although defendant Beener and the others attempted to talk Plotz out of going through with the attempted robbery, Plotz insisted on going forward. Plotz took possession of the handgun. Plotz, together with defendants Beener and Jones, then approached the van. Jones was armed with a knife. Plotz raised the handgun and demanded the marijuana from defendant. Jones displayed his knife at the same time. Zerba refused and while shouting and demands on both sides took place, Zerba said something like “bring it, bring it” or “get the gun up.” Clemens took possession of the shotgun and pulled the trigger, striking Plotz in the head and killing him.

         II. GUIDELINE SECTION 2B3.1(b)(2)(D)

         Guideline section 2B3.1 establishes the offense level for the crime of attempted robbery, in violation of Title 18, United States Code, Section 1951, and provides for a base offense level of 20. USSG §2B3.1(a). Section 2B3.1(b)(2)(D) provides that “if a dangerous weapon was brandished or possessed, increase by 4 levels.” Here, the government urges that defendant Jones' possession of a knife is a dangerous weapon and the enhancement should apply. Defendants Beener and Jones were also convicted in Count 2 of possession of a firearm in furtherance of the attempted robbery. The offense level for that crime is addressed in Guideline section 2K2.4. Comment 4, addresses this issue, stating:

If a sentence under this guideline is imposed in conjunction with a sentence for any underlying offense, do not apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the underlying offense. A sentence under this guideline accounts for any explosive or weapon enhancement for the underlying offense of conviction, including any such enhancement that would apply based on conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct).

USSG §2K2.4, comment. (n.4).

         The government urges that this commentary only applies to other firearms or explosives and not to knives, focusing on the first sentence of the commentary that refers to “explosive or firearm.” The government cites to United States v. White, 222 F.3d 363, 373 (7th Cir. 2000), United States v. Willett, 90 F.3d 404, 408 (9th Cir. 1996), and United States v. Kimmons, 965 F.2d 1001, 1011 (11th Cir. 1992), in support of its position, although it acknowledges that this Court has ruled otherwise last year. See United States v. Centeno, 16-CR-2057 (N.D. Iowa). The government also cites United States v. Triplett, 104 F.3d 1074, 1081-82 (8th Cir. 1997), for dicta where, in remanding the case for resentencing, the Court of Appeals suggested the district court could enhance the defendant's sentence under a similar provision of §2B3.1(b)(2)).

         Defendants argue that the commentary applies to any form of weapon, focusing on the second sentence that uses the words “explosive or weapon.” Defendants point out that the United States Sentencing Commission amended the commentary to Section 2K2.4, effective November 1, 2000 (after the date of each of the cases cited by the government), to add the above-quoted language from Comment 4. Defendants argue that other courts have found that the purpose of the amendment was to change the outcome of cases like Willett, which the Commission identified as an example of the misinterpretation of the guidelines, citing United States v. Foster, 902 F.3d 654, 657-58 (7th Cir. 2018), and United States v. Knobloch, 131 F.3d 366, 372 (3d Cir. 1997). Defendants also note that in United States v. Aquino, 242 F.3d 859, 864 (9th Cir. 2001), the Ninth Circuit Court of Appeals concluded that Willett is no longer good law in light of the amendment.

         The Court agrees with defendants that the commentary to Section 2K2.4 reflects an intent that if a defendant is sentenced for a 924(c) offense, then that sentence is intended and sufficient to account for the use, possession, brandishing or discharge of weapons in connection with the underlying offense. This is so regardless of whether the additional weapons involved were firearms, explosives or some other type of weapon. It would be an illogical result for the Court to find that the four-level enhancement does not apply had Jones been armed with a firearm, but does apply when he is armed with a knife. This ruling is consistent with this Court's previous ruling in Centeno.

         Accordingly, the Court overrules the government's objection to paragraph 21 in defendant Beener's Presentence Report and to paragraph 22 in defendant Jones' Presentence Report.


         The government seeks restitution for funeral expenses relating to the death of Dylan Plotz. Federal courts have no inherent power to order restitution. See United States v. Balentine, 569 F.3d 801, 802 (8th Cir.2009) (citation omitted). Rather, federal courts can only order restitution when authorized by statute or when agreed to by the parties as part of a plea agreement. Generally, two statutes address restitution to crime victims.[1]

         A. The Law of Restitution

         In 1982, Congress enacted the Victim and Witness Protection Act of 1982, 18 U.S.C. § 3663 (VWPA), which authorizes district courts to, in their discretion, order restitution for victims of criminal conduct. See 18 U.S.C. § 3663(a)(1)(A) (stating that a district court “may order” that a defendant make restitution to any victim of an offense ...

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