United States v. Neal Powell , 523 F. App'x 967 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4799
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NEAL ALVIN POWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:11-cr-00139-RJC-1)
Submitted: April 24, 2013 Decided: April 30, 2013
Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henderson Hill, Executive Director, Joshua B. Carpenter, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, William M. Miller, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Neal Alvin Powell pled guilty to three counts of bank
robbery, in violation of 18 U.S.C. § 2113(a) (2006), and was
sentenced to sixty-two months’ imprisonment. Powell appeals his
sentence, challenging the district court’s application of a two-
level increase in his offense level for making a threat of
death. U.S. Sentencing Guidelines Manual § 2B3.1(b)(2)(F)
(2011). We affirm.
In each of the three robberies, Powell used a demand
note. In the first robbery, the note said, “All of the money in
your cash Drawer Before I shoot Hurry.” In the second robbery,
the note said, ”Give me all the money or I’ll shoot hurry the
drawer $ ssh!!” In the last robbery, the note said, ”Give me
your money in the cash drawer before I shoot.” At the
sentencing hearing, Powell argued that the threat of death
enhancement should not be applied because his threat was not an
explicit threat to kill and he did not make any gestures or take
any action that would have heightened the threat. Therefore, in
his view, his notes were unlikely to cause a fear of death. The
district court disagreed and decided that Powell’s notes would
cause a reasonable teller to fear death. On appeal, Powell
contends that the district court erred by failing to consider
the totality of the circumstances before deciding that the
enhancement applied.
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We review a sentence for procedural and substantive
reasonableness under an abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). Miscalculation of the
Guidelines range is a significant procedural error. Id. at 51.
A threat to shoot a teller is a threat of death. United States
v. Franks, 183 F.3d 335, 337-38 (4th Cir. 1999). Generally, the
test is an objective one—whether the defendant’s statement would
“instill a fear of death in a reasonable victim—not the reaction
of the particular teller[.]” United States v. Jennings, 439
F.3d 604, 613 (9th Cir. 2006); Franks, 183 F.3d at 338; United
States v. Gibson, 155 F.3d 844, 846 (7th Cir. 1998). However,
if mitigating circumstances are present, “the court must . . .
evaluate the overall circumstances of the robbery to determine
whether a reasonable teller in that particular scenario would
have perceived a threat of death.” United States v. Wooten, 689
F.3d 570 (6th Cir. 2012); see also Jennings, 439 F.3d at 611;
Gibson, 155 F.3d at 847.
Powell maintains that the district court should have
conducted an analysis of the totality of the circumstances in
his case and that, had it done so, it would have found the
enhancement inapplicable. He contends that the government
failed to bear its burden of proving facts to support the
enhancement because it failed to prove that mitigating
circumstances were not present. However, at sentencing, Powell
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himself argued to the court that, in the particular
circumstances of his case, the enhancement did not apply because
the bank teller could see that he was not going to harm anyone,
did not have a weapon, and made no threatening gestures. In
this appeal, Powell does not identify any mitigating
circumstances other than those already presented in the district
court. Powell argues that the burden of proving the
enhancement’s applicability cannot be shifted to the defendant.
However, a similar argument that Application Note 3 to USSG
§ 2D1.1 improperly shifts the burden of proof to the defendant
to show that the possessed weapon was not connected to the
offense has been rejected by this court and by other circuits.
See, e.g., United States v. Holmes, 81 F. App’x 467, 469-70 (4th
Cir. 2003) (No. 03-4306); United States v. Fudge, 325 F.3d 910,
922 (7th Cir. 2003) (rejecting claim of improper burden shifting
in USSG § 2D1.1(b)(1)); United States v. Restrepo, 884 F.2d
1294, 1296 (9th Cir. 1989) (“The Due Process Clause does not
require that the government prove the absence of every possible
exception or mitigating circumstance”); United States v. McGhee,
882 F.2d 1095, 1097-99 (6th Cir. 1989) (same).
Powell also argues that the threat of death
enhancement requires more than intimidation, to which he admits,
because otherwise it would always be applicable where the crime
is robbery by intimidation under 18 U.S.C. § 2113(a). This
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argument fails because a robbery by force or intimidation can be
committed without threats of death. Jennings, 439 F.3d at 612-
13. The same is true in this case.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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