United States v. Wooten

• Decision Date: 20 August 2012
• Docket Number: No. 11–5348.,11–5348.
• Citation: 689 F.3d 570
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. James WOOTEN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

689 F.3d 570

UNITED STATES of America, Plaintiff–Appellee,

v.James WOOTEN, Defendant–Appellant.

No. 11–5348.

United States Court of Appeals, Sixth Circuit.

Argued: March 8, 2012.

Decided and Filed: Aug. 20, 2012.

ARGUED:Michael C. Holley, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Christopher C. Sabis, United States Attorney's Office, Nashville, Tennessee, for Appellee. ON BRIEF:Michael C. Holley, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Braden H. Boucek, United States Attorney's Office, Nashville, Tennessee, for Appellee.

Before: MOORE, SUTTON, and DONALD, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which DONALD, J., joined. SUTTON, J. (pp. 579–84), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

On September 23, 2010, Defendant–Appellant James Wooten robbed the Green Bank in Gordonsville, Tennessee. During the robbery, Wooten casually approached a teller, placed his hands on the counter, and twice quietly stated, “I am going to rob you.” R. 41 (Sentencing Hr'g Tr. at 5). At first, Wooten's demeanor left the teller with doubts as to the sincerity of Wooten's demand. When the teller was slow to respond, Wooten finally said, “I have a gun. Give me your money,” at which point, the teller handed over approximately $4,130 in cash. Id.; Presentence Investigation Report (“PSR”) ¶ 5, at 4.

Wooten pleaded guilty to one count of bank robbery under 18 U.S.C. § 2113(a). Based on Wooten's declaration that he had a gun, the district court imposed a two-level sentencing enhancement pursuant to United States Sentencing Guideline (“Guideline” or “U.S.S.G.”) § 2B3.1(b)(2)(F) for making a threat of death. Wooten challenges the enhancement and maintains that, in spite of his use of the phrase “I have a gun,” his conduct and demeanor were so nonthreatening as to eliminate the possibility that any reasonable teller under the circumstances would have believed his or her life to be in danger. Under the specific circumstances of this case, we agree. Accordingly, we REVERSE the district court's imposition of the sentencing enhancement, VACATE Wooten's sentence, and REMAND the case for resentencing in accordance with this opinion.

I. BACKGROUND

At Wooten's sentencing hearing, bank teller Buddy Mason recalled the circumstances of the September 23 robbery. According to Mason, the robbery began after Wooten walked “casually” into the bank and approached the teller row. R. 41 (Sentencing Hr'g Tr. at 5). Wooten, who was fifty-six years old at the time, wore ordinary clothing and appeared to Mason to be a routine customer. After entering, Wooten strolled over and placed one hand on the counter. According to Mason, Wooten was “not looking around or fidgeting or looking at anything” and his demeanor was “nonchalant.” Id. After motioning for Mason to lean in closer, Wooten “kind of whispered and said, I am going to rob you.” Id. at 5. Mason at first thought Wooten was “joking around.” Id. at 11. Indeed, Mason recalled that he was “not taking [the robbery] very seriously because [Wooten] was just so nonthreatening.” Id. at 9. With prompting from Mason, Wooten repeated the statement “I am going to rob you,” and Mason again questioned the sincerity of Wooten's request. Id. at 5. At that point, Wooten “kind of got a serious look in his face” and said, “I have a gun, I want your money.” Id.¹

Mason testified that the bank had instructed all employees to give money to a bank robber without asking any further questions. Consequently, because at that point he believed Wooten's demand to be real, Mason turned his back to Wooten, obtained a bundle of bills, and handed them over. By that time, Wooten had both hands on the counter, leading Mason to believe that Wooten had no intention of reaching for anything. According to Mason, Wooten “was not acting like he was going to hurt me or anybody in the bank.” In fact, even though Wooten had told Mason that he had a gun, Mason said he “never felt threatened at all.” Id. at 10.

After obtaining the money, Wooten exited the bank and drove slowly away. Police stopped him only a few minutes later. Wooten later told investigators that he actually wanted to be caught and that he committed the robbery because “he was just tired of living in his car and he was running out of money.” PSR ¶ 7, at 5. The record also reflects that Wooten had attempted a similar bank robbery shortly before this one, but left empty handed after the teller at the other bank laughed at him.

Based on these facts, the district court applied the threat-of-death enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(F). Initially, the district court emphasized that the relevant standard is an objective one, “[s]o whether or not Mr. Mason was actually in fear is not outcome determinative because that would be a subjective standard.” R. 41 (Sentencing Hr'g Tr. at 25). The district court indicated, however, that “whether Mr. Mason was in fear or not certainly is a set of facts that the Court should consider in determining what a reasonable person would believe.” Id. The district court therefore concluded that “Mason's fear or lack of fear is an importantfact to consider in determining what is reasonable, but it is not controlling.” Id.

Nonetheless, after recounting Mason's testimony that Wooten's demeanor was “nonchalant” and that he “never felt threatened [and] thought [Wooten] was joking,” the district court determined that the statement “I have a gun” was enough to constitute a threat of death. Id. at 26. Although the district court did not believe that the same would have been true for the statement “I have a weapon,” it reasoned that “to say I have a gun implies I will use it and implies I will shoot you and implies that if you are shot, you may die and that that is a threat of death.” Id. Accordingly, the district court concluded, “the statement of someone robbing a bank that I have a gun in the overall context of the facts in this case would cause a reasonable person who is a victim of the offense to fear death.” Id.

The two-level enhancement resulted in a Guidelines range of 37 to 46 months of imprisonment. In considering the 18 U.S.C. § 3553(a) factors, the district court found Wooten's history and characteristics to be “largely mitigating,” noting Wooten's military history, mental-health issues, difficult living circumstances, and nonexistent criminal record. Id. at 33. Although reiterating the seriousness of a bank robbery offense, the district court noted that “this is Mr. Wooten's first offense, and he seems remorseful.” Id. The district court therefore imposed a thirty-seven month prison sentence—the bottom of the Guidelines range—and two years of supervised release. On appeal, Wooten challenges only the district court's application of the threat-of-death enhancement pursuant to § 2B3.1(b)(2)(F).

II. ANALYSIS

We review de novo the district court's application of the Sentencing Guidelines to a particular set of facts, including whether the facts as found warrant the sentencing enhancement under U.S.S.G. § 2B3.1(b)(2)(F). United States v. Winbush, 296 F.3d 442, 443 (6th Cir.2002); see also United States v. McCarty, 628 F.3d 284, 289 (6th Cir.2010).

Section 2B3.1(b)(2)(F) instructs that “if a threat of death was made, increase [the offense level] by 2 levels.” To convey a threat of death, an offender must “engage[ ] in conduct that would instill in a reasonable person, who is a victim of the offense, a fear of death.” Id. cmt. n. 6. By way of example, the Guidelines provide the following nonexhaustive list of potential death threats:

oral or written demand[s] 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.”

Id. As these statements make clear, the threat of death need not be explicit. Id. Nevertheless, the robber's communication must be sufficient to permit a reasonable bank teller to fear that death is at least a reasonably likely result of his or her noncooperation.

Although the statement “I have a gun” lacks the type of “or else” condition present in the examples set out above, our cases have determined that the phrase can be sufficient on its own to warrant the threat-of-death enhancement. Winbush, 296 F.3d 442, 443 (6th Cir.2002). In United States v. Winbush, for example, we upheld a district court's application of the enhancement after a bank robber presented a demand note that read “THIS IS A HOLD–UP I HAVE A GUN 100's 50's and 20's,” but did not make any oral statements or show the gun during the robbery. Id. at 442. We made a similar determination in United States v. Clark, 294 F.3d 791, 795 (6th Cir.2002), which involved a demand note that read “I have a gun. Do what you are told and you wont [sic] get hurt.” There, we found that “[r]eading the two phrases of the note together, the clear implication of the message is that failure to cooperate would result in being shot then and there by a gun. This would instill in any reasonable person, such as the teller in this case, a fear of death.” Id. Finally, relying on Winbush, we recently stated in United States v. Moore, 447 Fed.Appx. 721, 723 (6th Cir.2012) (unpublished opinion), that “advising a bank employee that one is armed suffices to support the enhancement.” Thus, we have clearly established that the statement “I have a gun” can constitute a threat of death for purposes of the § 2B3.1(b)(2)(F) enhancement. Other circuits are in accordance with this general proposition. See, e.g., United States v. Martinez, 602 F.3d 1156, 1159 (10th Cir.2010); United States v. Jennings, 439 F.3d 604, 611 (9th Cir.2006); United States v. Murphy, 306 F.3d 1087, 1090 (11th Cir.2002); United States v....