United States v. Gaylon Richard Cox ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1610
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Arkansas.
*
Gaylon Richard Cox, *
*
Appellant. *
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Submitted: September 14, 2000
Filed: September 19, 2000
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Before LOKEN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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FAGG, Circuit Judge.
Gaylon Richard Cox sent his sixteen-year old girlfriend into an Arkansas bank
with a toy pistol tucked in her waistband and a note, which read:
This is a police scanner attached to my ear. It will notify me if the silent
alarm is activated. When that happens I will shoot you. Start with the
reserve drawer. Begin with hundreds and work on down. No change!
Take care to not set off your alarm, the consequences will be fatal.
Remove all bills from the top drawer. Break the bands on all money as
it is placed on the counter. Dye bombs and tracking devices will not be
tolerated!
You have precisely 1 minute.
Cox's girlfriend handed the demand note to a teller who saw the handle of the toy gun
and believed it was a real weapon. After the teller complied with the note's
instructions, Cox's girlfriend left the bank and rendezvoused with Cox, who had parked
the getaway car about a block from the bank. Cox was eventually arrested and pleaded
guilty to aiding and abetting a bank robbery. The district court sentenced Cox to life
imprisonment under the "three strikes" statute, which requires mandatory life
imprisonment when "a person who is convicted . . . of a serious violent felony . . . has
been convicted . . . on separate prior occasions . . . [of] 2 or more serious violent
felonies." 18 U.S.C. § 3559(c)(1)(A)(i) (1994).
On appeal, Cox concedes he has two earlier serious violent felony convictions
but argues his conviction for aiding and abetting robbery in this case is a nonqualifying
felony under § 3559(c)(3)(A) and thus cannot count as his third strike. We disagree.
Section 3559(c)(3)(A) provides:
Robbery . . . shall not serve as a basis for sentencing under [the three
strikes statute] if the defendant establishes by clear and convincing
evidence that –
(i) no firearm or other dangerous weapon was used in the offense and no
threat of use of a firearm or other dangerous weapon was involved in the
offense; and
(ii) the offense did not result in death or serious bodily injury . . . to any
person.
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The Government concedes no one was injured or killed during the Arkansas bank
robbery, and thus to succeed in his appeal Cox need only show that no firearm or other
dangerous weapon was used and that no threat of the use of such a weapon was
involved in the robbery. See United States v. Washington, 109 F.3d 335, 337 (7th Cir.
1997) (defendant must satisfy both subsections (i) and (ii) of § 3559(c)(3)(A) to escape
mandatory life imprisonment). This Cox cannot do. As the district court concluded,
Cox's claim fails because "the fact that there existed 'the threat of use' of a firearm is
not [subject to legitimate dispute]." (Dist. Ct. Mem. Op. at 4.)
The threat of use of a firearm occurs when, as here, there is "a 'communicated
expression to a victim that the defendant would use a firearm.'" United States v. Jones,
No. 99-4071, 2000 WL 675989, at *9 (10th Cir. May 24, 2000) (quoting United States
v. Gottlieb, 140 F.3d 865, 872 (10th Cir. 1998)). The demand note handed to the teller
during the robbery plainly stated the teller would be shot if the silent alarm was
activated. We agree with the district court that "[t]he note, particularly when combined
with what appeared to the teller to be a gun stuffed in [the] waistband [of Cox's
girlfriend], clearly constitutes the 'threat of use' of a firearm." (Dist. Ct. Mem. Op. at
4); see Jones, 2000 WL 675989, at *8-9 (defendant threatened use of firearm during
bank robbery by announcing he had a gun and making gestures consistent with having
gun); Washington, 109 F.3d at 337 (demand note that stated "I have a gun" implied
threat of use of firearm). Contrary to Cox's view, "[t]he fact that no gun was actually
present does not prevent [the note] from being a 'threat.'" Jones, 2000 WL 675989, at
*9.
Because the threat of the use of a firearm was involved in the Arkansas bank
robbery, Cox cannot satisfy § 3559(c)(3)(A)(i) and the district court properly sentenced
Cox under the three strikes statute. We affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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