United States v. Douglas Campbell II ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4130
DOUGLAS CAMPBELL II,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., District Judge.
(CR-98-176, CR-98-216, CR-98-217,
CR-98-218, CR-98-219, CR-98-220,
CR-98-221, CR-98-222, CR-98-223)
Submitted: June 30, 1999
Decided: September 24, 1999
Before NIEMEYER, MICHAEL, and MOTZ,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Louis C. Allen, III, Federal Public Defender, Greensboro, North Car-
olina, for Appellant. Walter C. Holton, Jr., United States Attorney,
Paul A. Weinman, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Douglas Campbell II appeals the 120-month sentence imposed
upon him following his pleas of guilty to eight counts of bank robbery
and one count of attempted bank robbery, all in violation of 18 U.S.C.
§ 2113(a) (1994). Campbell contends that the district court erred in
enhancing his offense level for making a "threat of death." We affirm.
I.
Over a span of six months beginning on November 21, 1997, and
ending May 21, 1998, Campbell attempted to rob nine banks, all of
them located in Greensboro, North Carolina. He succeeded in obtain-
ing money on eight of those occasions.
The robberies followed a similar pattern. Campbell approached a
teller and passed a note demanding money. The mildest note was the
one he presented on February 27, 1998. It read,"this is not a joke,
give me all of your large bills." In the other eight notes, Campbell
advised the teller that he had a gun. Three times he underlined the
word gun, and in two of those cases he wrote the word in all capital
letters as well. For example, his February 6, 1998, note stated, "This
is Not a Joke. I have A GUN. Give me All your large Bills." On no
occasion did Campbell actually brandish a firearm.
When Campbell was indicted for one of the robberies, he confessed
to the others, waived indictment on them, and, after being charged by
information, pled guilty to all nine. The presentence report recom-
mended that, on the eight counts involving notes that mentioned a
gun, Campbell's base offense level should be increased by two levels
pursuant to U.S. Sentencing Guidelines Manual § 2B3.1(b)(2)(F)
(Nov. 1998). Campbell objected to this enhancement. The district
court held a hearing on the issue. One of the victim tellers testified
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about the fear the robbery instilled in her. The court asked her why
she had been so frightened, to which the witness responded, "The
thought that he might have a gun. He didn't actually show it, but the
thought that he might have it and what he would do with it." The dis-
trict court ruled that the notes would have caused a reasonable person
to be in fear of death and that the enhancement was therefore appro-
priate. After adjustments for multiple counts and a reduction of three
levels for Campbell's acceptance of responsibility, the final offense
level was 26. Campbell had an extensive criminal history, placing him
in Category VI. The resulting guidelines range was 120-150 months,
and, as the government had recommended, the district court imposed
a sentence at the very bottom of the range. Campbell appeals.
II.
Under the former version of § 2B3.1(b)(2)(F), the two-level
enhancement applied to an "express threat of death" during a robbery.
See U.S.S.G. § 2B3.1(b)(2)(F) (May 1997). In an application note, the
Commission stated that the enhancement was to apply to "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." U.S.S.G.§ 2B3.1 comment. (n.6)
(May 1997). A circuit split developed over just what was an "express
threat." We took the majority view in United States v. Murray, 65
F.3d 1161, 1167 (4th Cir. 1995), where we held that an "express
threat of death" is "any combination of statements, gestures, or
actions that would put an ordinary victim in reasonable fear for his
life[.]" See United States v. Burns, 160 F.3d 82, 84 (1st Cir. 1998)
(collecting cases). The Sixth and Eleventh Circuits held that "express"
should be taken literally, and that the application note was not con-
trolling to the extent it suggested that an implied or inferred threat
could be an "express" one. See United States v. Alexander, 88 F.3d
427, 429-430 (6th Cir. 1996); United States v. Moore, 6 F.3d 715,
721-722 (11th Cir. 1993).
The Sentencing Commission took note of this conflict, and, effec-
tive November 1, 1997, it amended § 2B3.1(b)(2)(F) and Application
Note 6 to conform to the majority's interpretation. First, the word "ex-
press" was deleted from the guideline. Second, the Note clarified the
sort of "reasonable fear" the threat had to generate in order to support
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the enhancement. Instead of the vague "greater fear than that neces-
sary to constitute an element of the offense of robbery," the Commis-
sion substituted the specific "fear of death." U.S.S.G. App. C,
Amendment 552 (Nov. 1997).
The question, then, is whether Campbell's notes would cause a rea-
sonable person in the victim's position to fear for her life. We agree
with the district court that of course they would. Robbers use guns to
coerce compliance with their demands. This coercion can only be
accomplished if the victim fears that the robber will use the gun. This
fear is more than just reasonable; it is intended. Moreover, we agree
with the First Circuit's observations in Burns that, in the tense atmo-
sphere of a bank robbery, a reasonable teller takes no note of "quib-
bles" about whether the robber might shoot to kill, merely to wound,
or in the air. See Burns, 160 F.3d at 86. She fears for her life, and with
good cause. The judgment of the district court is affirmed.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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