U.S. v. Figueroa

• Decision Date: 10 December 1996
• Docket Number: No. 96-1421,96-1421
• Citation: 105 F.3d 874
• Parties: UNITED STATES of America v. Juan FIGUEROA, Appellant . Submitted under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 874

105 F.3d 874

UNITED STATES of America v. Juan FIGUEROA, Appellant

No. 96-1421.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit

LAR 34.1(a) Dec. 10, 1996.

Decided Jan. 30, 1997.

Michael R. Stiles, United States Attorney, Robert R. Calo, Assistant United States Attorney, Walter S. Batty, Jr., Assistant United States Attorney Chief of Appeals, Philadelphia, PA, for Appellee.

Mark D. Mungello, Blackwood, NJ, for Appellant.

Before: BECKER, MANSMANN, and GREENBERG, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

Appellant Juan Figueroa appeals from the sentence imposed by the district court after he pleaded guilty to bank robbery in violation of 18 U.S.C. § 2113(a). Figueroa argues that the district court erred by enhancing his offense level by two levels for an express threat of death under United States Sentencing Guideline § 2B3.1(b)(2)(F). We will affirm and hold that a written statement Figueroa presented to a bank teller during the robbery informing the teller that he possessed a gun constituted an express threat of death and subjected him to a 2-level enhancement under section 2B3.1(b)(2)(F).

1. Jurisdiction and Standard of Review

Figueroa was indicted for violation of 18 U.S.C. § 2113(a) and 18 U.S.C. § 2, and thus the district court had subject matter jurisdiction over this prosecution. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). A defendant may appeal a sentence imposed by a district court if the sentence "was imposed in violation of law [or] was imposed as a result of an incorrect application of the sentencing guidelines...." 18 U.S.C. § 3742(a)(1) and (2). We exercise plenary review over the district court's interpretation and application of the Sentencing Guidelines. United States v. Hallman, 23 F.3d 821, 823 (3d Cir.), cert. denied, 513 U.S. 881, 115 S.Ct. 216, 130 L.Ed.2d 144 (1994). If, however, the district court's application of the Guidelines was based on factual analysis, we will reverse for clear error only. Id. In this case we regard the issue as involving the interpretation and application of the Guidelines so we exercise plenary review.

2. Background

On April 24, 1995, Figueroa entered the Meridian Bank at 1470 East High Street in Pottstown, Pennsylvania, and approached a bank teller. His co-defendant, Marcellus Hammond, waited in a car outside the bank. Figueroa gave a note written by Hammond on a white napkin to the teller which read "I have a gun. Give me all the money." The note had some other writing to the effect that Figueroa needed a bag for the money. The teller gave Figueroa $2,379.00, and Figueroa left the bank.

On September 14, 1995, a grand jury indicted Figueroa for committing robbery against Meridian Bank in violation of 18 U.S.C. § 2113(a) and 18 U.S.C. § 2. Figueroa entered a plea of guilty to violation of 18 U.S.C. § 2113(a) on October 5, 1995. On May 16, 1996, the district court sentenced Figueroa to 40 months imprisonment, five years supervised release, a $50.00 special assessment, and $2,379.00 in restitution. At the sentencing, Figueroa objected to the section 2B3.1(b)(2)(F) 2-level enhancement for an express threat of death. On May 20, 1996, Figueroa filed this appeal.

3. Discussion

U.S.S.G. § 2B3.1 provides that the base offense level for robbery is 20. Subsection (b) then lists several offense characteristics for which the court should apply specific enhancements. Under section 2B3.1(b)(2)(F), "if an express threat of death was made [during the commission of the offense], increase by 2 levels." The commentary to the Guidelines further explicates, through illustration, the meaning of "express threat of death":

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 the 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.

This commentary is binding on a court unless it violates the Constitution or a federal statute, is inconsistent with the guideline, or clearly misinterprets the guideline. Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). In this case none of these exceptions applies, so the commentary is binding and this appeal turns on our application of it.

Figueroa argues that he should not be subjected to the 2-level enhancement of section 2B3.1(b)(2)(F) because his written note merely stated that he possessed a gun, but did not contain any threat to use the gun. He contends that "the comments and the caselaw construing this Section all require something more than a single statement or communication that the actor is in possession of a weapon; [Figueroa's] position is that there must be, at a minimum, some words or physical gestures from which it could be reasonably inferred by the victim that the Defendant intends to actually use his weapon in the event that the victim fails to comply with the actor's directive." Br. at 4.

In response, the Government argues that the statement "I have a gun" is an express threat of death because the reasonable inference to be drawn from that statement is that the person will use the gun if his demands are not satisfied. The Government argues further that by informing the teller he had a gun, Figueroa "instilled significantly greater fear [in the teller] than would have occurred had he merely made a demand for money, which is the only act necessary to satisfy the element of a taking by force, violence, and intimidation." Br. at 7-8. For these reasons, the Government contends that Figueroa's conduct qualifies as an express threat of death, subject to a 2-level enhancement.

The application of section 2B3.1(b)(2)(F) presents a question of first impression in this court. However, we are guided by the opinions of other courts of appeals. As in the examples presented in the commentary, in none of these cases are the facts exactly like those in this case, but the principles they enunciate persuade us that Figueroa's statement that he had a gun was an "express threat of death" within the meaning of section 2B3.1(b)(2)(F).

The majority of the courts of appeals which have interpreted and applied section 2B3.1(b)(2)(F) have held that the defendant can make an express threat of death without explicitly threatening to kill the victim. Their reasoning has turned on a reading of the word "express" combined with adherence to the commentary's instruction to consider the reasonable perceptions of the recipient of the threat. For example, one court has explained that "express" need not be read as meaning distinct or explicit, but rather also can be interpreted reasonably as "clear." United States v. Robinson, 86 F.3d 1197, 1200 (D.C.Cir.1996) (citations omitted). Defining "express" to mean "clear" has enabled the courts to focus on the reasonable implications of, and inferences from, the defendant's words or actions. Id. at 1203. ¹ The courts thus have concluded that an "express threat need not be specific in order to instill the requisite level of fear in a reasonable person." United States v. France, 57 F.3d 865, 868 (9th Cir.1995) (citation omitted).

The Court of Appeals for the Fourth Circuit has emphasized that the "crucial determination ... is whether a reasonable victim would fear for his or her life because of the robber's actions." United States v. Murray, 65 F.3d 1161, 1166 n. 3 (4th Cir.1995). Similarly, the Court of Appeals for the Ninth Circuit has explained that what "is determinative is whether a reasonable person, given the conduct of the defendant and the context in which it occurred, would experience significantly greater fear than the level of intimidation necessary to constitute an element of the offense of robbery." France, 57 F.3d at 866-67 (citing United States v. Strandberg, 952 F.2d 1149, 1151 (9th Cir.1991)) (footnote omitted). These courts therefore have found that statements that defendants possessed weapons or would shoot, as well as gestures simulating the appearance of a gun, are express threats of death within the meaning of section 2B3.1(b)(2)(F). See Robinson, 86 F.3d at 1202 (defendant's statements that he would shoot someone if not given the money constituted express threats of death because they reasonably could be interpreted as threats to kill); France, 57 F.3d at 867-68 (defendant's statement that he had dynamite qualified as express threat of death); Murray, 65 F.3d at 1167 (defendant's statement "I have a gun pointed at you" constituted express threat of death); United States v. Hunn, 24 F.3d 994, 997 (7th Cir.1994) ("a bank robber's pointing his hand through his coat pocket, while claiming to have a gun, can be a sentence enhancing, death threat expression"); United States v. Lambert, 995 F.2d 1006, 1008 (10th Cir.) (instruction to teller to put money in the bag or " 'the person behind me will shoot someone' " is an express threat of death), cert. denied, 510 U.S. 926, 114 S.Ct. 333, 126 L.Ed.2d 278 (1993); United States v. Smith, 973 F.2d 1374, 1377-78 (8th Cir.1992) (defendant's statement that teller would not want to find out if defendant's demand for money was a joke, combined with defendant's holding his hand under his coat as if holding a gun, qualified for section 2B3.1(b)(2)(F) enhanceme...