U.S. v. Robinson

• Decision Date: 21 June 1996
• Docket Number: No. 95-3174,95-3174
• Parties: UNITED STATES of America, Appellee, v. Robert ROBINSON, Appellant. District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1197

86 F.3d 1197

318 U.S.App.D.C. 203

UNITED STATES of America, Appellee, v. Robert ROBINSON, Appellant.

No. 95-3174.

United States Court of Appeals,District of Columbia Circuit.

Argued May 10, 1996.

Decided June 21, 1996.

Appeal from the United States District Court for the District of Columbia (No. 95cr00083-01).

Teresa Alva, Assistant Federal Public Defender, Washington, DC, argued the cause for appellant. A.J. Kramer, Federal Public Defender, and Frances H. Pratt, were on the briefs.

Chun T. Wright, Assistant United States Attorney, Washington, DC, argued the cause for appellee, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher, Thomas C. Black and Michael F. Tubach, Assistant United States Attorneys, were on the brief.

Before: EDWARDS, Chief Judge, SILBERMAN and TATEL, Circuit Judges.

Opinion for the Court by Circuit Judge TATEL.

TATEL, Circuit Judge:

"Give me one pack of 20s or I will shoot somebody in here now," read the note with which appellant robbed a Washington, D.C. bank. The question before us is whether those words amount to an "express threat of death" within the meaning of section 2B3.1(b)(2)(F) of the Sentencing Guidelines. Holding that they do, we affirm the district court's two-level enhancement of appellant's sentence.

I.

Section 2B3.1 of the Sentencing Guidelines governs sentences for robbery. Subsection (a) establishes the base offense level; subsection (b) provides several grounds for raising the offense level. Subsection (b)(2)(F) states that "if an express threat of death was made, increase [the offense level] by two levels." USSG § 2B3.1(b)(2)(F). The commentary to the guideline states in full:

An "express threat of death," as used in subsection (b)(2)(F), may be in the form of an oral or written statement, act, gesture, or combination thereof. For example, an oral or written demand using words such as "Give me the money or I will kill you", "Give me the money or I will pull the pin on the grenade I have in my pocket", "Give me the money or I will shoot you", "Give me your money or else (where the defendant draws his hand across his throat in a slashing motion)", or "Give me the money or you are dead" would constitute an express threat of death. The court should consider that the intent of the underlying provision is to provide an increased offense level for cases in which the offender(s) engaged in conduct that would instill in a reasonable person, who is a victim of the offense, significantly greater fear than that necessary to constitute an element of the offense of robbery.

USSG § 2B3.1(b)(2)(F), comment. (n.6).

Appellant, Robert Robinson, pled guilty to robbing five banks in violation of 18 U.S.C. § 2113(a), which makes it a crime to take money from any bank "by force and violence, or by intimidation." Robinson used a different note in each robbery. He used the note we mention above--"Give me one pack of 20s or I will shoot somebody in here now"--during a March 15th robbery. In two other robberies, he used virtually identical notes: "I have a gun. Give me a pack of 20s or I will shoot somebody out here now"; and "I have a gun. Give me one pack of 20's or I will shoot somebody out here now." During the fourth robbery, he used a note demanding two packs of twenty dollar bills; during the final robbery, his note read simply, "I have a gun." Robinson never actually had a gun during the robberies, but no one else was aware of that at the time.

Finding that Robinson had made an "express threat of death" in all five robberies, the probation office recommended enhancing Robinson's offense level by two points under section 2B3.1(b)(2)(F). Robinson's counsel objected, arguing that the commentary's final sentence and all of its examples indicated that, in order to make an express threat of death, a robber had to "instill fear of death in the victim teller." His counsel argued that because Robinson's notes at most threatened only "somebody out here" or "somebody in here," his statements did not meet this requirement. Apparently concluding that at least one of Robinson's notes constituted an express threat of death, the district court applied the two-level enhancement and sentenced Robinson to 57 months imprisonment.

II.

Robinson urges us to disregard the commentary as inconsistent with the guideline and, applying the plain language of the guideline to the statements he made during the robberies, to conclude that none of them was an "express threat of death." He claims that the guideline's use of the phrase "express threat of death" requires that the robber "directly, plainly, and unmistakably indicate that the victim was going to die." Appellant's Br. at 8. According to Robinson, a threat of death is not "express" if the victim must draw inferences in order to conclude that the robber is threatening death. He thus argues that the guideline conflicts with two portions of the commentary: the commentary's final sentence, because that sentence suggests that courts should examine the inferences that a reasonable victim would make; and the example, "Give me the money or I will shoot you," because the threat to "shoot" explicitly threatens only injury, requiring a victim to infer that the robber was threatening death.

Because Robinson did not make this argument before the district court--indeed, counsel never even hinted at any inconsistency between the guideline and the commentary--we review his argument under a plain error analysis. See United States v. Saro, 24 F.3d 283, 286-88 (D.C.Cir.1994); United States v. Dawson, 990 F.2d 1314, 1316-17 (D.C.Cir.1993). In interpreting a guideline and its commentary, we are bound by a set of familiar principles. Courts must consider commentary "that interprets or explains a guideline [to be] authoritative unless [the commentary] violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993); see also id. at 44-45, 113 S.Ct. at 1918-19. If commentary is inconsistent with a guideline, courts should disregard the conflicting portions of the commentary and rely upon the guideline itself. Id. at 43, 113 S.Ct. at 1918. Commentary is not "inconsistent" with a guideline simply because it adopts what we might regard as one of the less likely interpretations of a guideline. See United States v. Smaw, 22 F.3d 330, 333 (D.C.Cir.1994). Rather, since we must treat commentary interpreting a guideline as we would an agency's interpretation of its own regulations, Stinson, 508 U.S. at 44-45, 113 S.Ct. at 1918-19, commentary is inconsistent only if "an 'alternative reading is compelled by the [guideline]'s plain language or by other indications of the [Sentencing Commission's] intent at the time of the [guideline]'s promulgation.' " Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, ---- - ----, 114 S.Ct. 2381, 2386-87, 129 L.Ed.2d 405 (1994) (quoting Gardebring v. Jenkins, 485 U.S. 415, 430, 108 S.Ct. 1306, 1314, 99 L.Ed.2d 515 (1988)) (emphasis added); see also Stinson, 508 U.S. at 43, 113 S.Ct. at 1918 (requiring "flat inconsistency").

Applying these principles, we find no error, let alone plain error, in the district court's failure to detect the alleged inconsistencies. Indeed, we perceive no inconsistency at all between the robbery guideline and its commentary. While "express" may usually mean "[m]ade known distinctly and explicitly, and not left to inference," it may also simply mean "clear." BLACK'S LAW DICTIONARY 580 (6th ed.1990); see also WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 803 (1993). The Sentencing Commission could thus reasonably interpret "express" to mean "clear"; having done so, it could determine that a robber "clearly" threatens another person with death even if a person on the receiving end of the threat had to draw some inferences in order to conclude that the robber was threatening to kill. Thus, to the extent the final sentence in the commentary suggests that the court should evaluate a robber's statement from the perspective of "a reasonable ... victim" to determine if it clearly threatens death, no irreconcilable conflict exists. Nor is there a conflict with the example, "Give me the money or I will shoot you." Admittedly, "I will shoot you" does not threaten death as unambiguously as "I will kill you." Yet the Sentencing Commission could reasonably determine that when a bank robber hands a note to a teller stating, "Give me the money or I will shoot you," the teller would clearly understand these words to be a threat to kill.

To support his argument that the guideline and commentary are inconsistent, Robinson cites two Ninth Circuit cases. In United States v. Martinez-Cano, 6 F.3d 1400, 1401-03 (9th Cir.1993), the court found a guideline requiring higher sentences for offenders trafficking in six or more " 'sets' " of documents inconsistent with its commentary, instructing courts to " 'treat [a] set [of documents] as one document.' " Id. at 1402 (quoting USSG § 2L2.1(b)(2), comment. (n.2)). The Ninth Circuit reasoned that if a court were to follow the commentary, it could never achieve the six "sets" required to enhance a sentence under the guideline, because "as soon as one thought one had a set it would metamorphose into a single document only." Id. at 1403. The court thus concluded that the commentary and guideline were "in inexorable conflict." Id. As we indicate above, no such conflict exists here.

United States v. O'Brien, 50 F.3d 751 (9th Cir.1995), the other case cited by Robinson, does not support his position either. The O'Brien court found no inherent conflict between the guideline and the commentary, but merely between the guideline and another circuit's interpretation of the commentary. See id. at 754-56. O'Brien therefore stands for the rather uncontroversial principle that courts should not construe the commentary as to create...