United States v. Pike ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30528
Plaintiff-Appellant,
v.  D.C. No.
CR-04-00340-GMK
CHRISTOPHER MICHAEL PIKE,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted
July 27, 2006—Portland, Oregon
Filed January 17, 2007
Before: Stephen Reinhardt, A. Wallace Tashima, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Reinhardt
687
690 UNITED STATES v. PIKE
COUNSEL
Karin J. Immergut, United States Attorney, District of Ore-
gon, Portland, Oregon; and Gary Y. Sussman, Assistant
United States Attorney, Portland, Oregon, for the plaintiff-
appellant.
Nancy Bergeson, Assistant Federal Public Defender, Portland,
Oregon, for the defendant-appellee.
OPINION
REINHARDT, Circuit Judge:
The government appeals the fifty-month sentence imposed
by the district court following Christopher Pike’s plea of
UNITED STATES v. PIKE 691
guilty to bank robbery under 18 U.S.C. § 2113(a). It argues
that the district judge applied an incorrect standard of proof
in considering whether to impose a five-level enhancement
for possession of a firearm and that, under the correct stan-
dard, the enhancement was warranted. It further contends that
the district court, having decided not to impose the five-level
enhancement, clearly erred in declining to impose a two-level
enhancement for making a threat of death. With respect to the
five-level enhancement, we agree that the district court
applied an incorrect standard of proof. We remand so that it
may apply the correct standard and determine, under that stan-
dard, whether Pike possessed a firearm during the robbery.
We note, however, that we remand only because the district
court erred in its method of calculating what the appropriate
advisory Guidelines range would be. We do not intimate that
it should impose a sentence within whatever advisory range
it properly calculates on remand. With respect to the two-level
enhancement, we remand for reconsideration, if necessary, in
light of our decision in United States v. Jennings, 439 F.3d
604 (9th Cir. 2006).
I
On July 15, 2004, Christopher Pike rode his bicycle to the
Wells Fargo Hayden Island Branch in Portland, Oregon, and
robbed it. He gave a bank teller a handwritten note that stated,
“Give me all the money. I have a gun. No bullshit.” Pike then
held open a backpack into which the teller placed cash and,
unbeknownst to Pike, bait bills and an electronic tracking
device. The bank manager, who was standing between five
and ten feet from the teller, testified at Pike’s sentencing hear-
ing that he did not see a gun in Pike’s backpack. After receiv-
ing a total of $4,495, Pike zipped up the backpack, retrieved
the demand note, and left the bank. He fled on the bicycle to
his car, which, according to an investigating officer, “he had
parked . . . a ways away at an apartment complex on the far
east end of Jantzen Beach.” As far as the record reveals, Pike
was not followed while riding his bicycle. He then drove his
692 UNITED STATES v. PIKE
car to the Rivermark Credit Union, where he deposited $1,050
into his landlord’s bank account to pay his rent.
Shortly after Pike fled, the police began to monitor the sig-
nal transmitted by the electronic tracking device in his back-
pack. Approximately thirty minutes after the robbery,
Portland police stopped Pike’s vehicle and placed him under
arrest. By then, he already had made his rent payment. While
Pike was detained in the police car, he made the following
unsolicited statement: “I have a 10-month old at home and we
couldn’t make the rent. This was it.” The police searched
Pike’s vehicle and found the backpack, which contained
$3,435 in cash, the bait bills, the electronic tracking device,
and an unloaded gun. Officers also found in the vehicle a
sweatshirt matching witnesses’ description of the shirt Pike
wore during the robbery, and a torn-up demand note that read,
“Got a Gun Gimme all Moneys No Funny Shit Got Police
Radio.”
Following his arrest, Pike waived his right to an attorney
and was interviewed by a Portland Police Detective. Pike took
responsibility for the robbery and claimed that his actions
stemmed from his inability to obtain a job or pay rent. He
stated that he had a young child at home for whom he was
caring because his wife had a severe case of postpartum
depression and was unable to do so. He also told the detective
that he did not intend to hurt anybody. When asked about the
torn demand note found in the car, Pike claimed that he wrote
the note a week earlier, but decided against committing the
robbery at that time and ripped it up. Pike said that he had dis-
carded the demand note that he actually used during the rob-
bery. In addition, he told the officer that he left the gun in the
car when he rode his bicycle to the bank to commit the rob-
bery.
On May 9, 2005, Pike pled guilty, without the benefit of a
plea agreement, to one count of bank robbery under 18 U.S.C.
UNITED STATES v. PIKE 693
§ 2113(a).1 The Probation Office issued a pre-sentence report
recommending a base level offense of twenty, a two-level
enhancement under U.S.S.G. § 2B3.1(b)(1) for taking the
property of a financial institution, and a five-level enhance-
ment under § 2B3.1(b)(2)(C) for possessing a firearm during
the bank robbery. The report also recommended a three-level
reduction for acceptance of responsibility, resulting in a total
offense level of twenty-four. Pike’s criminal history points
placed him in Category V. The resulting Sentencing Guide-
lines range was 92 to 115 months.
At the September 20, 2005, sentencing hearing, Pike chal-
lenged the five-level increase for firearm possession, arguing
that there was insufficient evidence that he had the gun while
in the bank. The government contended that, even if Pike did
not posses the firearm while in the bank, as it believed he did,
the evidence that the gun was in the car before and after the
robbery was sufficient to trigger the five-level enhancement.
The district judge identified two issues relevant to the five-
level increase: (1) whether Pike had a gun in his backpack
during the robbery, and (2) “whether or not finding the gun
in the backpack at the time of his arrest is sufficient under the
possession enhancement.” With respect to the first issue and
the appropriate standard of proof, the judge found in pertinent
part as follows:
On the five-level enhancement, the burden is at least
clear and convincing on the part of the Government,
1
Section 2113(a) states in relevant part as follows:
Whoever, by force and violence, or by intimidation, takes, or
attempts to take, from the person or presence of another, or
obtains or attempts to obtain by extortion any property or money
or any other thing of value belonging to, or in the care, custody,
control, management, or possession of, any bank, credit union, or
any savings and loan association . . . . Shall be fined under this
title or imprisoned not more than twenty years, or both.
18 U.S.C. § 2113(a).
694 UNITED STATES v. PIKE
since it is a five-level enhancement, and I find that
the Government has not proved by clear and con-
vincing evidence that the defendant had the gun
while he was in the bank. His testimony was that he
left it in the car. This occurred at a time when he’s
— immediately after his arrest. Such statements are
sometimes more credible than others. But also the
fact that the backpack was opened to put the money
in, and there was no indication that the teller saw a
gun or that anyone saw a gun. Given the clear and
convincing requirement and the fact that it’s a five-
level enhancement, I find that there is not clear and
convincing evidence that he had the gun while he
was in the bank.
The judge also rejected the government’s argument that the
discovery of the gun in Pike’s car approximately thirty min-
utes after the robbery was sufficient to warrant the enhance-
ment.
The government sought, in the alternative to the five-level
enhancement, a two-level enhancement under U.S.S.G.
§ 2B3.1(b)(2)(F) based upon Pike’s purported “threat of
death” in the demand note. Although the government
acknowledged that at the time of sentencing there was no
Ninth Circuit authority holding that a written “I have a gun”
statement or a verbal statement to the same effect was suffi-
cient standing alone to warrant the two-level enhancement, it
noted that several other circuits had so held. The district judge
declined to impose the two-level enhancement:
And the question is, as a matter of law, whether the
“I have a gun” is sufficient to apply the two-level
enhancement. . . . What do we do? [District Judge]
Aiken has said it doesn’t apply, and that two-level
enhancement wasn’t applied to that defendant. In
discussing this with other judges at our sentencing
conference, I think the judges go both ways on this.
UNITED STATES v. PIKE 695
I am reluctant to apply the two-level enhancement
for threat of death because I do not want to enunciate
a rule of law that I’m not certain should apply. And
given the uncertain state of law on this and Judge
Aiken’s opinion, I’m not going to apply that as well.
Absent both contested enhancements,2 Pike’s offense level
was nineteen, resulting in a Guidelines range of fifty-seven to
seventy-one months. The district judge sentenced Pike to fifty
months, finding that to be a “just and reasonable sentence,”
and a three-year term of supervised release. The judge sen-
tenced Pike to less than the applicable Guidelines range as a
result of Pike’s “attempts at employment, at taking care of
[his] family,” and his “potential for turnaround.” The govern-
ment appealed.
II
A. Five-Level Enhancement
We must address two principal issues with respect to the
five-level enhancement for possessing a firearm during the
bank robbery: first, whether the district judge applied the cor-
rect standard of proof, and second whether, under the correct
standard of proof, there was sufficient evidence to warrant the
enhancement. The second issue requires a determination of,
inter alia, the point at which Pike’s robbery of the Wells
Fargo branch office ended, and whether he possessed the gun
for purposes of the enhancement prior to that time.
Standard of Proof
[1] The ordinary standard of proof for factual findings
underlying sentencing enhancements is preponderance of the
evidence. See United States v. Riley, 335 F.3d 919, 925 (9th
2
Pike did not contest the two-level enhancement for taking the property
of a financial institution.
696 UNITED STATES v. PIKE
Cir. 2003). We have held, however, that there are certain cir-
cumstances in which a clear and convincing standard is
appropriate, such as where the enhancement would have “ ‘an
extremely disproportionate effect’ ” on the sentence. United
States v. Hopper, 177 F.3d 824, 832-33 (9th Cir. 1999) (quot-
ing United States v. Restrepo, 946 F.2d 654, 659 (9th Cir.
1991) (en banc)); see also Riley, 335 F.3d at 925; United
States v. Jordan, 256 F.3d 922, 927 (9th Cir. 2001). There is
no “bright-line” rule in the Ninth Circuit governing the appli-
cation of the extremely disproportionate effect test; rather,
courts look to the totality of the circumstances in determining
whether the test is met. See Jordan, 256 F.3d at 928. We have
identified six factors that should be considered: (1) whether
the enhanced sentence falls within the maximum sentence for
the crime alleged in the indictment; (2) whether the enhanced
sentence negates the presumption of innocence or the burden
of proof for the alleged crime; (3) whether the facts offered
in support of the enhancement create new offenses requiring
separate punishment; (4) whether the increase in sentence is
based upon the extent of conspiracy; (5) whether the increase
in number of offense levels is less than or equal to four; and
(6) whether the length of the enhanced sentence more than
doubles the length of the sentence authorized by the initial
Guidelines range “in a case where the defendant would other-
wise have received a relatively short sentence.” Id. (internal
quotation marks and citation omitted).
[2] Here, the district court failed to consider the totality of
the circumstances in holding the government to a clear and
convincing standard of proof. Rather, it concluded that a
heightened burden was warranted merely because possession
of a gun requires a five-level enhancement under § 2B3.1(b)
(2)(C): “On the five-level enhancement, the burden is at least
clear and convincing on the part of the Government, since it
is a five-level enhancement . . . .” In deeming the fact of a
five-level enhancement, standing alone, to be controlling, and
in failing to consider the totality of the circumstances, the dis-
trict court erred. See id. (holding that, in determining whether
UNITED STATES v. PIKE 697
to apply a heightened standard at sentencing, “we have looked
at the ‘totality of the circumstances,’ without considering any
one factor as dispositive”).
The next question is whether the district court’s error was
harmless. In other words, under the totality of the circum-
stances, did the five-level enhancement have an extremely
disproportionate effect on Pike’s sentence? We conclude that
it did not.
[3] The parties agree that only two of the Valensia factors
may be relevant: (1) whether the increase in offense level is
less than or equal to four, and (2) whether the length of the
enhanced sentence is more than double the length of the sen-
tence recommended by the initial Guidelines range. With
respect to the first issue, it is clear that a five-level increase
is greater than a four-level increase. The question is whether
the second factor applies. Absent the five-level enhancement,
Pike’s sentencing range is fifty-seven to seventy-one months.
A five-level enhancement would result, however, in a sen-
tencing range of 92 to 115 months. Pike argues that the sec-
ond Valensia factor is met because the high point of the
enhanced range is more than double the low point of the non-
enhanced range. Although that may be true, the comparison
urged by Pike is incomplete. Critically, in cases in which we
have considered whether a sentence would be doubled due to
a contested enhancement, we have compared both the respec-
tive high and low points of the relevant Guidelines ranges.
See, e.g., Riley, 335 F.3d at 927 (holding that a range of forty-
one to fifty-one months was not more than double a range of
twenty-four to thirty months); Jordan, 256 F.3d at 929;
United States v. Mezas de Jesus, 217 F.3d 638, 643 (9th Cir.
2000). Here, a comparison of the low and high points of the
two Guidelines ranges — fifty-seven to seventy-one months,
and 92 to 115 months — reveals that the enhanced range is
not more than double the non-enhanced range.
[4] Accordingly, the only Valensia factor that favors Pike
is the one considered by the district court — the enhancement
698 UNITED STATES v. PIKE
resulted in an increase of more than four in his offense level.
As the government argues, we have never in any opinion
required a heightened standard of proof solely upon the basis
of an enhancement of more than four levels. See, e.g., United
States v. Munoz, 233 F.3d 1117, 1126-27 (9th Cir. 2000) (rul-
ing that a nine-level enhancement that more than doubled the
applicable Guidelines range warranted a heightened standard);
Hopper, 177 F.3d at 833 (holding that a seven-level enhance-
ment that resulted in more than doubling the Guidelines range
had an extremely disproportionate effect); but see Riley, 335
F.3d at 927 (four-level enhancement did not trigger clear and
convincing standard where Guidelines range did not double).
Nor, after considering the length of the Guidelines ranges,
both independently and comparatively, as well as the other
relevant circumstances, do we believe that this is an appropri-
ate case in which to do so. Rather, we conclude that, under the
totality of the circumstances, the five-level enhancement
under § 2B3.1(b)(2)(C) did not warrant a heightened standard
of proof at sentencing in this case. The enhancement would
not have an extremely disproportionate effect on Pike’s sen-
tence and, thus, the district court erred in holding the govern-
ment to a clear and convincing burden.
Possession of a Firearm
[5] Because we hold that the district court applied an incor-
rect standard of proof with respect to the five-level enhance-
ment, we remand for reconsideration the question whether the
government met its burden on that issue. On remand, the dis-
trict court shall first determine whether the government
showed, by a preponderance of the evidence, that Pike pos-
sessed the firearm while he was in the bank committing the
robbery. If the district court concludes that he did, the five-
level enhancement is warranted. If the court finds that he did
not, but that he left the firearm in the car parked “a ways
away” from the bank, it may not impose the five-level
enhancement because, in that case, Pike did not possess the
UNITED STATES v. PIKE 699
gun during the robbery, including any attendant “escape,” as
we are compelled to construe that term.
[6] Our decision in United States v. Dinkane, 17 F.3d 1192,
1199 (9th Cir. 1994), is relevant. In Dinkane, we held that
Section 2113(a) punishes the taking of property
belonging to certain financial institutions. The taking
continues beyond the immediate scene of the rob-
bery, encompassing the escape. . . . [T]he crime of
unarmed bank robbery continues throughout the
period of hot pursuit.
Id. (emphasis in original). In doing so, we considered whether
the getaway car driver, who did not participate directly in the
robbery of a bank, was guilty under § 2113(a). The facts
established that
Dinkane, directed by [his cousin], quickly drove
from the bank. The getaway car was followed by a
man who had been watching the car while it was
parked in front of the bank.
Id. at 1195. In Dinkane, we construed the terms “escape” and
“hot pursuit” as being coterminous — we used them inter-
changeably, and concluded that the jury could have reason-
ably found Dinkane guilty of robbery at the point he fled the
bank’s parking lot followed by a bystander’s car. Id. Several
other circuits agree that “escape,” as synonymous with “hot
pursuit,” is part and parcel of a bank robbery under § 2113(a).
See, e.g., United States v. Williams, 344 F.3d 365, 372 (3d
Cir. 2003) (holding that assaults occurring in hot pursuit fell
“within the scope of the federal Bank Robbery Act”); United
States v. Mills, 1 F.3d 414, 419-20 (6th Cir. 1993) (“Courts
applying the bank robbery statute have concluded that the ref-
erence in 18 U.S.C. § 2113(d) to assaults in committing the
offense of bank robbery includes injuries caused during hot
pursuit from a bank robbery.”); United States v. Pietras, 501
700 UNITED STATES v. PIKE
F.2d 182, 187 (8th Cir. 1974) (holding that, under § 2113(a),
robbery extends “to a hot pursuit that follows the physical
departure from the bank building”).
Dinkane remains our last word on the question. Our defini-
tion of the term “escape” is consistent not only with the prece-
dent cited above, but also with the Supreme Court’s holding
in Carter v. United States, 530 U.S. 255 (2000). In Carter, the
Court considered whether the offense described in 18 U.S.C.
§ 2113(b) — “Whoever takes and carries away, with intent to
steal or purloin, any property or money or any other thing of
value exceeding $1,000” from a financial institution — is a
lesser included offense of ordinary bank robbery under
§ 2113(a). Id. at 260. The Court concluded that it was not, in
part because § 2113(b) requires a taking and carrying away
of something of value, whereas § 2113(a) requires only a tak-
ing. Id. (emphasis added); see also Williams, 344 F.3d at 373
(holding that, under Carter, “the strict elements of a federal
bank robbery offense under 18 U.S.C. § 2113(a) do not
include ‘taking away’ ”). Thus, we are not persuaded by the
Eleventh Circuit’s opinion in United States v. Martin, 749
F.2d 1514, 1518 (11th Cir. 1985), decided before Carter,
which held that escape does not necessarily conclude when
hot pursuit ends because “asportation is an element” of the
offense under § 2113(a). After Carter, that justification for
extending the scope of escape is no longer valid.
In addition, our definition of “escape” as coextensive with
“hot pursuit” comports with our case law generally addressing
U.S.S.G. § 2B3.1(b)(2)(C). For example, in United States v.
Taylor, 960 F.2d 115, 116-17 (9th Cir. 1992), we held that an
enhancement under § 2B3.1(b)(2)(C) was warranted where
the defendant showed an outline of a gun underneath a t-shirt,
although the record did not reveal whether he actually pos-
sessed a gun. We concluded that the fact that the defendant
intentionally created the appearance he had a gun was suffi-
cient, because it (1) created greater apprehension in his vic-
tims, and (2) increased the likelihood that the police or
UNITED STATES v. PIKE 701
bystanders would react using deadly force. Taylor, 960 F.2d
at 116-17; see also United States v. Boyd, 924 F.2d 945, 947
(9th Cir. 1991) (holding that the same two justifications war-
ranted a § 2B3.1(b)(2)(C) enhancement). Similarly, in the
context of hot pursuit, the two rationales for the enhancement
would apply because a firearm could create greater apprehen-
sion in the pursuers, who also would be more likely to use
deadly force than if the would-be escapee did not possess a
dangerous weapon. Neither reason, however, would support
applying the enhancement during flight, more broadly
defined, where there was neither pursuit nor pursuers. In such
a case, there would be nobody in whom to instill apprehen-
sion, or from whom to increase the likelihood of a violent
response.
[7] For the foregoing reasons, we reaffirm our holding in
Dinkane that the period of escape under § 2113(a) encom-
passes only hot pursuit. Here, there is no evidence in the
record of hot pursuit; indeed, it is evident from the record that
Pike was not followed by anyone while he was riding the
bicycle to his vehicle. The facts show that either Pike had the
gun with him in the backpack that he carried into the bank or
the gun remained in the car during the actual robbery. In the
latter case, an enhancement would be improper because the
flight from the bank clearly ended when the defendant com-
pleted his bicycle trip from the crime scene to the car, which
he then drove to the credit union in order to make a deposit
to his landlord’s account. Driving the car to the credit union
could not, under the circumstances, constitute a part of the
flight. Accordingly, if on remand the district court finds that
the government has not met its burden of showing, by a pre-
ponderance of the evidence, that Pike possessed a gun while
in the bank, it may not impose the five-level enhancement
under § 2B3.1(b)(2)(C).
702 UNITED STATES v. PIKE
B. Two-Level Enhancement
The government further contends that the district court
committed clear error in declining to apply, under
§ 2B3.1(b)(2)(F), a two-level enhancement for making a
“threat of death.”3 With respect to this issue, the district judge
considered the following question: “[A]s a matter of law,
whether the ‘I have a gun’ is sufficient to apply the two-level
enhancement.” The judge concluded that, based on the status
of the law in our circuit at the time, it was not.
[8] A threat of death includes an “oral or written statement,
act, gesture, or combination thereof,” where a defendant
engages in conduct that would instill the fear of death in a rea-
sonable person who is a victim of the offense. U.S.S.G.
§ 2B3.1, cmt. n6. In United States v. Jennings, 439 F.3d 604,
611 (9th Cir. 2006), issued after Pike’s sentencing, we ruled
that “in most, but not all, circumstances, statements such as
‘I have a gun’ are sufficient to instill a fear of death in a rea-
sonable victim and warrant the § 2B3.1(b)(2)(F) enhance-
ment.” (Emphasis added.) We declined to adopt a per se rule,
however: Such statements “will not always amount to a threat
of death” because it is possible that, under the totality of cir-
cumstances, “mitigating circumstances accompanying [the]
statement could deprive the words of their ordinary and
expected meaning.” Id. (emphasis in original).
[9] In view of Jennings, the district court’s finding that a
note such as Pike handed the bank teller is not, as a matter of
law, sufficient to warrant the two-level enhancement was
erroneous. Thus, we remand the issue to the district court so
that it may consider whether, under the totality of circum-
stances, Pike’s actions in this case deprived the words in the
3
We note that the government sought the two-level enhancement as an
alternative to the five-level enhancement. Accordingly, if the district court
determines on remand that the five-level enhancement is warranted, it
need not reach the issue of the two-level enhancement.
UNITED STATES v. PIKE 703
note of their ordinary meaning. If they did not, the two-level
enhancement for making a threat of death would be applica-
ble.
III
We conclude that, under the totality of the circumstances,
the district court erred in requiring the government to meet a
clear and convincing standard with respect to the five-level
enhancement for possessing a firearm during the bank rob-
bery. We remand for reconsideration whether, under a pre-
ponderance of the evidence standard, the government showed
that Pike possessed a firearm during the robbery. Because,
under Dinkane, robbery under 18 U.S.C. § 2113(a) continues
only through the period of “hot pursuit,” the five-level
enhancement is appropriate only if the government shows that
Pike had the gun while actually in the bank. If the district
court finds that the five-level enhancement is not warranted,
it shall reconsider, in light of Jennings, whether to impose the
two-level enhancement for making a threat of death.
REMANDED.