United States v. Soto-Martinez ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
Revised July 1, 2003
January 6, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-20384
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY O. SOTO-MARTINEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This appeal presents the issue whether a defendant’s statement
that “I have a gun” during the commission of a bank robbery
constitutes a “threat of death,” thus warranting a two-level
increase in the offense level pursuant to U.S. Sentencing Guideline
§ 2B3.1(b)(2)(F). We have not addressed this issue since the
amendment of the guideline in November 1997 removed a requirement
that the threat of death be “express.” We now conclude that such
a statement may qualify as a “threat of death” and affirm the
sentence imposed by the district court.
Jimmy O. Soto-Martinez (“Soto”) approached a bank teller with
a note that read: “I have a gun. I just want money. Start with
the $100.00. Stay Quiet!!!” When the teller replied that she did
not have any $100 bills, Soto told her to pass the note to the
other tellers. After a second teller read the note, Soto stated,
“I want all your money.” The second teller provided money, and
Soto then told a third teller to “hurry up” with her money. When
Soto left the bank, he also left behind the demand note that
eventually led to his arrest. Soto was charged by information with
bank robbery.1 He waived indictment and pleaded guilty without a
plea agreement.
The presentence report (“PSR”) recommended a two-level
increase in Soto’s offense level pursuant to guideline §
2B3.1(b)(2)(F) because the demand note stated that Soto had a gun,
which the PSR explained “would instill a fear of death in a
reasonable person.” The district court overruled Soto’s objection
to the increase, finding that his actions, coupled with the
teller’s decision to “compl[y] with him after he told her that he
had a gun,” indicated that “there was a threat of death being made
by this defendant during the time of this robbery.” The district
court adopted the PSR and sentenced Soto to fifty-one months’
imprisonment.
1
18 U.S.C. § 2113(a).
2
This court reviews an application of the Sentencing Guidelines
de novo and reviews factual findings for clear error.2 Because the
facts of the robbery are undisputed, we review the application of
the two-level increase under § 2B3.1(b)(2)(F) de novo.3 Section
2B3.1(b)(2)(F) provides that “if a threat of death was made” during
the course of a robbery, the offense level is increased by two
levels.4 A “threat of death” may be “an oral or written statement,
act, gesture, or combination thereof.”5 The commentary gives
various examples of threats of death, including “Give me the money
or I will kill you,” “Give me the money or I will shoot you,” and
“Give me your money or else (where the defendant draws his hand
across his throat in a slashing motion).”6 The commentary also
states that the intent of § 2B3.1(b)(2)(F) 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, a fear of death.”7
2
United States v. Guerrero, 169 F.3d 933, 946 (5th Cir.
1999).
3
United States v. Gonzales, 40 F.3d 735, 740 n.14 (5th Cir.
1994) (applying de novo review to the district court’s application
of the guidelines to the undisputed fact that the defendant pointed
a gun).
4
U.S. SENTENCING GUIDELINES MANUAL § 2B3.1(b)(2)(F) (2001).
5
Id. cmt. n.6.
6
Id.
7
Id.
3
Soto’s note simply stated that he had a gun; he did not make
an express threat of death, and there is no indication that his
actions otherwise implied the actual presence of a gun. However,
when considered together, Soto’s statements in the note that “I
have a gun” and “I just want money” are similar to the example in
the guideline commentary, “Give me the money or I will shoot you.”
The only difference is that Soto’s note required a slight
inferential step: that if he were not provided with the money, he
would use the gun he claimed to have.8 Such an inference is
entirely reasonable, particularly amid the stress and tension of a
bank robbery. We conclude that a reasonable person, when presented
with a note demanding money and stating that the robber has a gun,
normally and reasonably would fear that his or her life was in
danger, and therefore the enhancement was not erroneous.9
8
See United States v. Jennette, 295 F.3d 290, 292 (2d Cir.
2002) (“Jennette’s statements to the teller – to give him the money
and that he had a gun – are equivalent to the Guideline’s model
statement “Give me the money or I will shoot you.” The only
difference between the two statements is that Jennette's statements
required the teller to draw a single inference – that is, that
Jennette was willing to use the gun that he claimed to have, if the
teller did not comply with Jennette's demand. This is a very small
inferential step for a teller to make, particularly during the
confusion and understandable anxiety of a robbery.”).
9
This conclusion is consistent with the decisions of a
majority of the other circuits that have considered this question.
See, e.g., United States v. Murphy, 306 F.3d 1087, 1088-90 (11th
Cir. 2002) (“We conclude that, under the amended guideline, the
written note given to the bank teller that the defendant had a gun
constituted a "threat of death" even though no express threat to
use the gun was made.”); United States v. Winbush, 296 F.3d 442,
443 (6th Cir. 2002) (holding that “a robber's note saying ‘I have
a gun’ constitutes a threat of death under § 2B3.1(b)(2)(F)”
4
AFFIRMED.
because “[s]uch language would instill in any reasonable bank
teller a belief that a failure to comply with the robber’s
instructions would result in being fatally shot”); Jennette, 295
F.3d at 290-92 (“[W]e conclude that a reasonable teller, when faced
with a bank robber who demands money and states that he has a gun,
normally and reasonably would fear that his or her life is in
danger.”); United States v. Day, 272 F.3d 216, 218 (3d Cir. 2001)
(“Even when § 2B3.1(b)(2)(F) required an ‘express’ threat of death,
we held ... that the exact words ‘I have a gun’ would suffice to
trigger a two-point sentence enhancement. Day argues, however,
that under the amended Guideline, in which the word ‘express’ has
been removed, the same words somehow no longer qualify as a threat
of death. This argument does not make sense. The deletion of the
word ‘express’ plainly broadened the Guideline rather than narrowed
it. Even if, contrary to [our prior holding], the words ‘I have a
gun’ did not constitute an express threat of death, under the
current Guideline language they would still qualify for the
enhancement because they are an implicit threat of death.”); United
States v. Gibson, 155 F.3d 844, 846-47 (7th Cir. 1998) (reasoning
that although every situation in which a defendant announces that
he has a gun may not constitute a threat of death, “[w]e think ‘a
reasonable teller would ordinarily experience a fear of being shot
when the robber confronting her announces he has a gun’”).
5