U.S. v. Burns

• Citation: 160 F.3d 82
• Decision Date: 06 October 1998
• Docket Number: No. 98-1271,98-1271
• Parties: UNITED STATES of America, Appellee, v. Thomas J. BURNS, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 82

160 F.3d 82

UNITED STATES of America, Appellee, v. Thomas J. BURNS, Defendant, Appellant.

No. 98-1271.

United States Court of Appeals,

First Circuit.

Heard Oct. 6, 1998.

Decided Nov. 20, 1998.

Miriam Conrad for appellant.

Robert E. Richardson, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellee.

Before LYNCH, Circuit Judge, CYR, Senior Circuit Judge, and LIPEZ, Circuit Judge.

CYR, Senior Circuit Judge.

Defendant Thomas J. Burns challenges the two-point sentencing enhancement imposed upon him by the district court pursuant to USSG § 2B3.1(b)(2)(F) (1995) for having made "express threat[s] of death" during two separate bank robberies. We affirm.

I BACKGROUND

Burns robbed the banks in the spring of 1997, on each occasion handing the teller a note warning: "I have a gun! Don't make me use it." After the government charged Burns with two counts of bank robbery, see 18 U.S.C. § 2113(a), the parties arrived at a plea agreement whereby the government promised to refrain, "at sentencing," from recommending that Burns receive the two-level enhancement under § 2B3.1(b)(2)(F) for making "express threat[s] of death" during the robberies. Although the government abided by its agreement, the district court nevertheless elected to impose the two-level enhancement.

II DISCUSSION

A. The Scope of the Plea Agreement

Before addressing the merits, we turn to Burns' motion to strike the government's brief on appeal. Burns insists that the government cannot be heard to contend on appeal that the district court correctly imposed the very sentencing enhancement which the government, pursuant to the plea agreement, agreed to refrain from recommending "at sentencing," see Plea Agreement p 3.

We acknowledge concerns regarding the government's ambivalence, especially since a commonsense understanding of the language of the plea agreement itself offers little hint that the parties mutually contemplated that the government remained free to advocate a two-level enhancement on appeal. As we repeatedly have made clear, moreover, "[b]ecause plea bargaining requires defendants to waive fundamental constitutional rights, we hold prosecutors engaging in plea bargaining to 'the most meticulous standards of both promise and performance.' " United States v. Velez Carrero, 77 F.3d 11, 11 (1st Cir.1996) (citation omitted). See United States v. Clark, 55 F.3d 9, 12 (1st Cir.1995); Correale v. United States, 479 F.2d 944, 947 (1st Cir.1973). We think the message is clear, therefore, that significant plea-agreement terms should be stated explicitly and unambiguously so as to preclude their subsequent circumvention by either party. See United States v. Canada, 960 F.2d 263, 269 (1st Cir.1992) (noting that the government not only is forbidden from any "explicit repudiation of [its] assurances," but from "end-runs around them"); United States v. Garcia, 698 F.2d 31, 37 (1st Cir.1983) (" 'A plea agreement is not an appropriate context for the Government to resort to a rigidly literal approach in the construction of language.' ") (citation omitted). Thus, defense counsel too must be alert to the need for clear and explicit articulation of all pertinent terms in any plea agreement negotiated with government counsel.

In the instant case, however, it is not necessary to determine whether the government breached its plea agreement, as we would be obliged in all events to consider whether the district court correctly imposed the sentencing enhancement at issue in this case, with or without the benefit of the government's advocacy on appeal. Accordingly, we now turn to the language of § 2B3.1(b)(2)(F), which we construe de novo.

See United States v. Nicholas, 133 F.3d 133, 134 (1st Cir.1998).

B. USSG § 2B3.1(b)(2)(F )

Burns argues that the notes handed to the bank tellers--expressly threatening to use a gun--were not "express threat[s] of death" for purposes of § 2B3.1(b)(2)(F) because they fairly could be interpreted simply to imply an intention to use a gun to fire warning shots or to shoot only to wound, rather than to kill. The applicable guidelines section provided:

(A) If a firearm was discharged, increase [the base offense level] by 7 levels; (B) if a firearm was otherwise used, increase by 6 levels; (C) if a firearm was brandished, displayed, 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, displayed, or possessed, increase by 3 levels; or (F) if an express threat of death was made, increase by 2 levels.

USSG § 2B3.1(b)(2) (emphasis added). ¹

The courts of appeals which have considered the issue to date ascribe two conflicting interpretations to the pivotal guideline phrase "express threat of death." Seven circuits presently hold that the defendant need not have expressed in words or actions an intention "to kill," provided the words or actions employed were such as to place the victim in objectively reasonable fear for his or her life. See United States v. Figueroa, 105 F.3d 874 (3d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 1860, 137 L.Ed.2d 1061 (1997); United States v. Murray, 65 F.3d 1161 (4th Cir.1995); United States v. Carbaugh, 141 F.3d 791 (7th Cir.1998); United States v. Tolen, 143 F.3d 1121 (8th Cir.1998); United States v. France, 57 F.3d 865 (9th Cir.1995); United States v. Lambert, 995 F.2d 1006 (10th Cir.1993); United States v. Robinson, 86 F.3d 1197 (D.C.Cir.1996).

These decisions rely on guideline commentary squarely in point here:

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 defendant draws his hand across his throat in a slashing motion)", "Give me your 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, comment. (n.6) (1995) (emphasis added). Importantly, these courts accord the quoted commentary deference as a reasonable interpretation of § 2B3.1(b)(2)(F) by the United States Sentencing Commission. "The Commission, after all, drafts the guidelines as well as the commentary interpreting them, so we can presume that the interpretations of the guidelines contained in the commentary represent the most accurate indications of how the Commission deems that the guidelines should be applied to be consistent with the Guidelines Manual as a whole as well as the authorizing statute." Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).

Two other courts of appeals have held that the term "express" contemplates nothing less than that the defendant have unambiguously declared, either through words or unambiguous conduct, that he intends to kill the victim. See United States v. Alexander, 88 F.3d 427 (6th Cir.1996); United States v. Moore, 6 F.3d 715 (11th Cir.1993). Citing one common definition of the adjective "express"--"[d]irectly and distinctly stated or expressed rather than implied or left to inference," Before sentencing guideline language and its related commentary may be deemed mutually inconsistent, the court must determine that "following one will result in violating the dictates of the other." Stinson, 508 U.S. at 43, 113 S.Ct. 1913. Although the adjective "express" commonly connotes "[d]irectly and distinctly stated or expressed rather than implied or left to inference," in the alternative it may simply mean something which is perceived as "clear" and "unambiguous." See Figueroa, 105 F.3d at 877 (citing Robinson, 86 F.3d at 1200). Thus construed, § 2B3.1(b)(2)(F) focuses not upon the criminal defendant's subjective intent as expressed through the literal language of the threat, but upon the likely inferences which the victim reasonably might draw in the circumstances. Moreover, nothing in the term "express" itself remotely compels the conclusion that Congress intended the most restrictive interpretation of § 2B3.1(b)(2)(F). Consequently, even if we were inclined to interpret the term "express" differently than the Commission, we would defer to the guideline commentary because the term "express" reasonably is construed in context as synonymous with "perceived as clear and unambiguous."

" Alexander, 88 F.3d at 430 (emphasis added)--these courts hold that Application Note 6 cannot control the interpretation of § 2B3.1(b)(2)(F) because Note 6 focuses on the victim's reasonable perceptions, thus is inconsistent with the guideline language itself, which focuses exclusively on the literal wording of the threat. See Stinson, 508 U.S. at 38, 113 S.Ct. 1913 ("[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.") (emphasis added); United States v. Damon, 127 F.3d 139, 145 n. 7 (1st Cir.1997) (same). Thus, declarations such as "I have a gun," or even "I will use my gun," are not to be considered "express threats of death" because the victim necessarily must supply the ultimate inference that the defendant means to shoot to kill, not merely to wound. We opt for the majority view.

The Sentencing Commission gloss on § 2B3.1(b)(2)(F) goes well beyond the merely plausible, however; it is an eminently sensible assessment of the likely legislative...