United States v. Linda Horton , 671 F. App'x 330 ( 2016 )

Case: 16-10031 Document: 00513798452 Page: 1 Date Filed: 12/15/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10031
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 15, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
LINDA GAIL HORTON,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:14-CR-220-1
Before BARKSDALE, GRAVES, and COSTA, Circuit Judges
PER CURIAM: *
Linda Gail Horton pleaded guilty without a plea agreement to one count
of bank robbery, in violation of 18 U.S.C. § 2113(a). Horton challenges a two-
point enhancement to her base-offense level under Guideline § 2B3.1(b)(2)(F)
for making a threat of death during the commission of the robbery. Along that
line, Horton asserts the enhancement applies only if “(1) a reasonable person
in the position of the immediate victim would very likely believe the defendant
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 16-10031
made a threat and the threat was to kill, and (2) the victim likely thought his
life was in peril”. U.S.S.G app. C, amend. 552. Because the presentence
investigation report did not mention whether the victim experienced a fear of
death, Horton claims the court erred in imposing the enhancement.
Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (2009). In that respect, for issues preserved in
district court, its application of the Guidelines is reviewed de novo; its factual
findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008).
Horton did not object in district court to the application of the threat-of-
death enhancement. The absence of a “threat of death” was urged only in
seeking a downward departure. Therefore, review is only for plain error. E.g.,
United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that
standard, Horton must show a forfeited plain (clear or obvious) error that
affected her substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If she does so, we have the discretion to correct the reversible plain
error, but should do so only if it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings”. Id.The commentary for Guideline § 2B3.1(b)(2)(F) explains a threat of death
“may be in the form of an oral or written statement, act, gesture, or
combination thereof”. U.S.S.G. § 2B3.1, cmt. n.6. The defendant need not
expressly threaten to kill the victim. Id. Instead, under the applicable
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No. 16-10031
objective standard, the enhancement applies when a reasonable person would
reasonably fear his life was in danger. United States v. Soto-Martinez, 317
F.3d 477, 479 (5th Cir. 2003). Horton’s note to the bank teller demanded
money and stated Horton had a bomb. It is not clear or obvious error to decide
such a statement would instill a fear of death in a reasonable person, especially
in a tense and stressful situation like a bank robbery. See id.Therefore, Horton fails to show the court plainly erred in applying the
“threat of death” enhancement. See Puckett, 556 U.S. at 135; Soto-Martinez,
317 F.3d at 479.
AFFIRMED.
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