United States v. Jerome Wilson

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3485
_____________
UNITED STATES OF AMERICA
v.
JEROME WILSON,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-15-cr-00049-001)
District Judge: Hon. Anita B. Brody
_______________
Argued
November 7, 2017
Before: JORDAN, HARDIMAN, SCIRICA, Circuit Judges
(Filed: January 17, 2018)
_______________
Eric A. Boden
Robert A. Zauzmer [ARGUED]
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
Christy Martin [ARGUED]
Rossman D. Thompson, Jr.
Federal Community Defender Officer
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge
If it were somehow in doubt before, we take the
opportunity now to hold that bank robbery by intimidation is
categorically a “crime of violence” under the United States
Sentencing Guidelines. In doing so, we join several other
federal courts of appeals that have held the same under the
guidelines or the Armed Career Criminal Act (“ACCA”).
2
Jerome Wilson pled guilty to unarmed bank robbery in
violation of 18 U.S.C. § 2113(a). The District Court imposed
a prison sentence that was in part a result of the guidelines’
career-offender enhancement, U.S.S.G. § 4B1.2, which, in
Wilson’s case, was applicable if bank robbery by intimidation
counts as a crime of violence. The District Court correctly
applied that enhancement, and it was not plain error that the
Court also applied an enhancement for making a death threat.
We will therefore affirm the sentencing order.
I. BACKGROUND
The facts of the case are not in dispute. Wilson pled
guilty to three counts of unarmed bank robbery or attempted
bank robbery in violation of 18 U.S.C. § 2113(a), and the
District Court sentenced him to 151 months’ imprisonment,
three years of supervised released, restitution of $3,122, and a
special assessment of $300. The sentence was based in part
on two enhancements: one for being a career offender,
U.S.S.G. § 4B1.2, and the other for making a death threat,
U.S.S.G. § 2B3.1(b)(2)(F). Of the three crimes, two were
completed bank robberies by demand note and one was an
attempted robbery by demand note. In one of the completed
robberies, the note Wilson passed to the bank teller said, “this
is a hold up, empty your drawers now, or else.” (App. at 37.)
The presentence report (“PSR”) suggested that
§ 2113(a) be treated as a “crime of violence” under the
guidelines, and, because Wilson had two prior convictions
under that same statute, that he be classified as a “career
offender.” If followed, those suggestions increased Wilson’s
total offense level from 27 to 32 and his criminal history
category from IV to VI. The PSR credited Wilson with a 3-
3
level downward adjustment of his offense level for
acceptance of responsibility, making his total suggested
offense level 29. Ultimately, the threat-of-death enhancement
did not increase the total offense level beyond that which was
mandated by the career-offender enhancement; that is, even
without the threat-of-death enhancement, Wilson’s total
offense level and criminal history category would have been
the same.
At sentencing, Wilson did not raise any objections
concerning the 2-level threat-of-death enhancement, but he
did object to being treated as a “career offender” under the
guidelines, arguing that § 2113(a) did not meet the
guidelines’ definition of a “crime of violence.” The District
Court overruled that objection and ultimately sentenced him
to the bottom of the guidelines range calculated in the PSR.
II. Discussion1
On appeal, Wilson challenges the District Court’s
application of the career-offender enhancement and the
threat-of-death enhancement to his sentence. We conclude
that the District Court correctly applied the career-offender
enhancement because bank robbery by intimidation is
categorically a crime of violence under § 4B1.2(a) of the
guidelines. We further conclude that the District Court’s
application of the threat-of-death enhancement was not plain
error.
1
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742.
4
A. Bank Robberyby Intimidation is
Categorically a Crime of Violence Under the
Guidelines.
Whether bank robbery by intimidation is a crime of
violence is a strange but not new question. It is strange
because to ask the question would seem to answer it – of
course the threat of violence is inherent in bank robbery, and
§ 4B1.2(a)(1) of the guidelines specifically includes within
the definition of a “crime of violence” “any offense under
federal or state law ... that ... has as an element the ...
threatened use of physical force against the person of another
... .” It is not a new question, though, because seven of our
sister circuits have had to address this question and have
concluded that bank robbery by intimidation does indeed
qualify as a “crime of violence” under § 4B1.2(a)(1) or the
nearly identically worded “elements” clause of the ACCA, 18
U.S.C. § 924(c)(3)(A).2 See United States v. Hopkins, 577
2
Like § 4B1.2(a), the ACCA is divided into an
“elements” clause, which defines “crime of violence” broadly
to include federal or state law offenses that involve the use or
threatened use of force, and an “enumerated offenses” clause,
which lists certain specific offenses that are to be considered
crimes of violence. Robbery is among the enumerated
offenses, but we have chosen to address the crime at issue
here – 18 U.S.C. § 2113(a) – under the elements clause of
§ 4B1.2(a). Many courts of appeals have concluded that bank
robbery under § 2113(a) is categorically a crime of violence.
See United States v. Harper, 869 F.3d 624, 626-27 (8th Cir.
2017) (holding “bank robbery by intimidation under
§ 2113(a) is a crime of violence under ... [the guidelines],
5
F.3d 507, 511 (3d Cir. 2009) (“[Because] the definition of a
‘violent felony’ under the ACCA is sufficiently similar to the
definition of a ‘crime of violence’ under the Sentencing
Guidelines[,] ... authority interpreting one is generally applied
to the other[.]” (footnote omitted)). Wilson argues that,
because a defendant can be convicted of violating § 2113(a)
without specifically intending to intimidate anyone, bank
robbery cannot categorically be called a crime of violence.
For the reasons that follow, that argument fails.
1. The Categorical Approach Applies to
Determine Whether Bank Robbery by
Intimidation is a “Crime of Violence”
Under the Guidelines.
We exercise plenary review over a district court’s
decision that a conviction is one for a crime of violence, as
defined by the guidelines, United States v. Brown, 765 F.3d
because it involves a threatened use of force”); United States
v. Ellison, 866 F.3d 32, 39-40 (1st Cir. 2017) (same); United
States v. Campbell, 865 F.3d 853, 854 (7th Cir. 2017) (same);
United States v. Brewer, 848 F.3d 711, 716 (5th Cir. 2017)
(same); In re Sams, 830 F.3d 1234, 1239 (11th Cir. 2016)
(holding “bank robbery conviction under § 2113(a) by force
and violence or by intimidation qualifies as a crime of
violence under the [ACCA] use-of-force clause”); United
States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016)
(concluding “[a] taking by intimidation under § 2113(a) ...
involves the threat to use physical force” under the
guidelines); United States v. McNeal, 818 F.3d 141, 157 (4th
Cir. 2016) (holding “bank robbery under ... § 2113(a) is a
‘crime of violence’ within the meaning of ... [the ACCA]”).
6
185, 188 (3d Cir. 2014), and we use the categorical approach
to determine whether a conviction so qualifies, United States
v. Chapman, 866 F.3d 129, 133 (3d Cir. 2017). That
approach requires us to compare the elements of the statute
under which the defendant was convicted to the guidelines’
definition of “crime of violence.” Id. at 133-34. A
conviction under § 2113(a) can be a crime of violence only if
“‘the least of th[e] acts’ criminalized” is sufficient to meet the
guidelines’ definition of a crime of violence. Moncrieffe v.
Holder, 569 U.S. 184, 191 (2013) (alteration in original)
(quoting Johnson v. United States, 559 U.S. 133, 137 (2010));
see also United States v. Dahl, 833 F.3d 345, 350 (3d Cir.
2016) (determining “the least culpable conduct hypothetically
necessary to sustain a conviction under the statute” (citation
omitted)).
Here, Wilson was convicted under the first paragraph
of § 2113(a),3 which states:
3
The District Court determined that § 2113(a) was a
divisible statute because it contained two paragraphs, each
containing a separate version of the crime. See Descamps v.
United States, 133 S. Ct. 2276, 2284 (2013) (explaining that a
statute is “divisible” when it “comprises multiple, alternative
versions of the crime”). Having determined that § 2113(a)
was divisible, the District Court applied the modified
categorical approach to determine that Wilson was convicted
under § 2113(a)’s first paragraph. See id. at 2283-84
(instructing courts to apply the “modified categorical
approach” to divisible statutes). The parties do not dispute
those rulings. Accordingly, we proceed straight to the
categorical approach, which applies once a court has focused
on the relevant statutory provision. Id. at 2285; Brown, 765
7
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 ...
or imprisoned not more than twenty years, or
both.
18 U.S.C. § 2113(a). The least culpable conduct covered by
that statute is unarmed bank robbery by intimidation. See
United States v. Brewer, 848 F.3d 711, 715 (5th Cir. 2017)
(concluding that the least culpable conduct under § 2113(a) is
“robbery by intimidation”). Thus, we must compare the
elements of bank robbery by intimidation to the guidelines’
definition of “crime of violence.” Chapman, 866 F.3d at 133-
34.
As noted earlier, supra n.2, guidelines § 4B1.2 defines
“crime of violence” for purposes of the career-offender
enhancement as:
(a) ... any offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that—
F.3d at 188-90. All references to “§ 2113(a)” throughout this
opinion refer only to the first paragraph of § 2113(a).
8
(1) has as an element the use, attempted
use, or threatened use of physical force
against the person of another, or
(2) is murder, voluntary manslaughter,
kidnapping, aggravated assault, a
forcible sex offense, robbery, arson,
extortion, or the use or unlawful
possession of a firearm described in 26
U.S.C. § 5845(a) or explosive material as
defined in 18 U.S.C. § 841(c).
U.S.S.G. § 4B1.2(a). We refer to § 4B1.2(a)(1) as the
“elements,” or “force,” clause and to § 4B1.2(a)(2) as the
“enumerated offenses” clause. To determine whether
Wilson’s conviction categorically qualifies as a “crime of
violence” under the “elements” clause, we ask whether bank
robbery by intimidation has as an element of the offense “the
use, attempted use, or threatened use of physical force against
the person of another[.]” U.S.S.G. § 4B1.2(a)(1).
2. Section 2113(a) Has as an Element of
the Offense “The Use, Attempted Use,
or Threatened Use of Physical Force.”
Unarmed bank robbery by intimidation clearly does
involve the “threatened use of physical force against the
person of another[.]” U.S.S.G. § 4B1.2(a)(1). If a common
sense understanding of the word “intimidation” were not
enough to prove that,4 our precedent establishes that
4
The word “intimidate” is defined in the dictionary as
“to make ... fearful” or “to compel or deter by or as if by
9
§ 2113(a)’s prohibition on taking the “property or money or
any other thing of value” either “by force and violence, or by
intimidation” has as an element the “threat of force.” United
States v. Askari, 140 F.3d 536, 541 (3d Cir. 1998) (en banc)
(quotation marks and citation omitted), vacated on other
grounds, 159 F.3d 774 (3d Cir. 1998); see also id. (“As used
in § 2113(a), the term ‘intimidation’ means ‘to make fearful
or put into fear.’” (citation omitted)). Whether the theft of
money from a bank involved intimidation is determined under
an objective standard and from the victim’s perspective, “i.e.,
whether an ordinary person in the [bank] teller’s position
reasonably could infer a threat of bodily harm from the
defendant’s acts.” Id. (quotation marks and citation omitted).
Each of our sister circuits to have addressed the issue
has, not surprisingly, concluded that robbing a bank by
intimidation does involve the “the use, attempted use, or
threatened use of physical force against the person of
another[.]” U.S.S.G. § 4B1.2(a)(1). Those courts also define
§ 2113(a)’s “intimidation” requirement in terms of a “threat
of physical force,” when interpreting the “elements” clause in
the guidelines or the similarly worded “elements” clause of
the ACCA.5 Our conclusion is the same.6
threats,” Intimidate, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/intimidate (last
visited Dec. 4, 2017).
5
See, e.g., Harper, 869 F.3d at 626 (“Intimidation
means the threat of force.”); Ellison, 866 F.3d at 37
(“[P]roving ‘intimidation’ under § 2113(a) requires proving
that a threat of bodily harm was made.”); Campbell, 865 F.3d
at 856 (“[I]ntimidation in § 2113(a) means the threat of
force.”); Brewer, 848 F.3d at 715 (“The kind of ‘intimidation’
10
that suffices to put a victim in fear of bodily injury during the
course of a bank robbery, and which would in turn allow a
defendant to complete such a robbery, is the very sort of
threat of immediate, destructive, and violent force required to
satisfy the ‘crime of violence’ definition.”); In re Sams, 830
F.3d at 1239 (quoting and adopting reasoning from United
States v. McNeal, 818 F.3d 141, that “[b]ank robbery under
§ 2113(a), ‘by intimidation,’ requires the threatened use of
physical force”); McBride, 826 F.3d at 296 (defining
intimidation as “conduct and words ... calculated to create the
impression that any resistance or defiance ... would be met by
force”); McNeal, 818 F.3d at 153 (“Bank robbery under
§ 2113(a), ‘by intimidation,’ requires the threatened use of
physical force.”).
6
In his opening brief, Wilson argues that § 2113(a)
encompasses conduct that does not meet the Supreme Court’s
definition of “physical force,” i.e., “violent force—that is,
force capable of causing physical pain or injury to another
person[,]” Johnson, 559 U.S. at 140, because one can be
convicted under § 2113(a) for threatening to expose another
to a hazardous substance. At oral argument, however, Wilson
conceded that that position is untenable in light of our recent
opinion in United States v. Chapman, 866 F.3d 129, which
was published after Wilson filed his opening brief. Because
Chapman forecloses that argument, we do not further address
it here. See id. at 133 (“[T]he ‘use’ of ‘physical force,’ as
used in § 4B1.2(a)(1), involves the intentional employment of
something capable of causing physical pain or injury to
another person, regardless of whether the perpetrator struck
the victim’s body.”).
11
3. Section 2113(a) Requires Knowing
Conduct.
Wilson argues that § 2113(a) is not categorically a
crime of violence because one can be convicted under that
statute without intending to intimidate anyone. More
particularly, his argument proceeds as follows. First, he says
correctly that the “intimidation” element of § 2113(a) is
measured by an objective standard from the victim’s
perspective, “i.e., whether an ordinary person in the [bank]
teller’s position reasonably could infer a threat of bodily harm
from the defendant’s acts.” Askari, 140 F.3d at 541 (quotation
marks and citation omitted). Next, he contends that applying
that standard criminalizes negligent behavior because a
defendant may act in a way that causes an ordinary teller to
reasonably infer a threat of harm, even though the defendant
has no intent to cause such concern.7 He says, “A defendant
may be convicted, for example, even if he acts on the sincere
belief that a teller will comply with a demand for money
7
The proposition that a defendant can be convicted
under § 2113(a) without intending to intimidate is not without
support in the case law. See United States v. Kelley, 412 F.3d
1240, 1244 (11th Cir. 2005) (explaining that a conviction
pursuant to § 2113(a) does not require the defendant “intend
for an act to be intimidating”); United States v. Yockel, 320
F.3d 818, 824 (8th Cir. 2003) (holding the intimidation
element of § 2113(a) satisfied “if an ordinary person in [the
teller’s] position reasonably could infer a threat of bodily
harm ... whether or not [the defendant] actually intended the
intimidation” (first alteration and emphasis in original)
(quotation marks and citation omitted)).
12
purely in reliance on bank policy, rather than out of fear.”
(Opening Br. at 12.)
To bolster his argument, he turns to Elonis v. United
States, 135 S. Ct. 2001 (2015). In that case, the Supreme
Court reversed a defendant’s conviction for transmitting
through interstate commerce threats to injure another person,
in violation of 18 U.S.C. § 875(c). 135 S. Ct. at 2012. That
statute contained no mens rea requirement. See id. at 2008(“An individual who ‘transmits in interstate or foreign
commerce any communication containing any threat ... to
injure the person of another’ is guilty of a felony[.]” (quoting
18 U.S.C. § 875(c))). The defendant appealed and argued
that the district court erred by refusing to instruct the jury
that, to be guilty, he had to have “intended” his
communication to be a threat. Id. at 2007. The district court
had instead instructed the jury to convict if it found that the
defendant “intentionally ma[de] a statement in a context or
under such circumstances wherein a reasonable person would
foresee that the statement would be interpreted by” the
intended recipient as a serious threat. Id. The Supreme Court
highlighted the “reasonable person” language in the jury
instruction and concluded that using it had permitted a
“negligence standard” to be imported into that criminal
statute. Id. at 2011.
Wilson’s attempt to extend Elonis’s reasoning to
§ 2113(a) is misguided. That case clarifies that courts should
read a scienter requirement into statutes only to the extent
necessary to prevent criminalizing otherwise innocent
conduct. Id. The Supreme Court determined that § 875(c)
required the government to prove a defendant intended his
communication to be threatening because the only thing
13
separating innocent conduct from wrongful conduct under
that statute was “the threatening nature of the
communication.” Id. In other words, the Court emphasized
that “a defendant generally must know the facts that make his
conduct fit the definition of the offense[.]” Id. at 2009
(quotation marks and citation omitted). Convicting a
defendant solely on how a reasonable person perceived the
relevant communication impermissibly risked creating
criminal culpability for nothing more than a foolishly worded
message. Id. at 2011. But, the Elonis Court’s reasoning is
inapposite here because, as recognized in Elonis itself, a
statute criminalizing acts knowingly undertaken to deprive
someone of property has, by virtue of that “knowing”
element, a sufficient mens rea to avoid the risk of making
lawful conduct unlawful. Id. at 2010 (citing Carter v. United
States, 530 U.S. 255, 269 (2000)).
In Carter v. United States, the Supreme Court
specifically held that “the presumption in favor of scienter
demands only that we read subsection (a) [of § 2113] as
requiring proof of general intent—that is, that the defendant
possessed knowledge with respect to the actus reus of the
crime (here, the taking of property of another by force and
violence or intimidation).” 530 U.S. at 268. There was no
reason to read a specific intent requirement into § 2113(a)
because reading a general intent requirement into the statute
was sufficient to “separate wrongful from otherwise innocent
conduct.” Id. at 269. Carter thus stands for the proposition
that, because § 2113(a) is a statute requiring only general
intent, it is enough for the government to prove that the
defendant took knowing action to rob a bank.
14
Other courts of appeals have rejected the argument that
§ 2113(a) criminalizes negligent or reckless behavior. They
have harmonized Carter with the “reasonable teller” standard
inherent in § 2113(a)’s intimidation requirement by requiring
the government to prove a defendant “knew that his actions
were objectively intimidating.” McNeal, 818 F.3d at 155.8 In
short, Carter and Elonis are not at odds. By reading a general
intent requirement into § 2113(a), Carter requires the
government to prove that the defendant acted with the
knowledge that those actions would result in the taking of
property by the use of force and violence or by intimidation.
Carter, 530 U.S. at 268. Using an objective standard to apply
§ 2113(a)’s intimidation requirement does not trigger the
concerns raised by Elonis, because, to be guilty, the defendant
must have knowingly robbed or attempted to rob a bank – in
other words, the defendant had to know he was taking money
from a financial institution that was not simply giving it
away. This fact exposes the nonsense in Wilson’s claim that
a teller might “comply with a [robber’s] demand for money
8
See also Harper, 869 F.3d at 626 (rejecting
contention that Elonis created a new global definition of
“threat” requiring the government prove the same mens rea in
criminal statutes other than § 875(c)); Ellison, 866 F.3d at 39
(adopting the McNeal standard); Campbell, 865 F.3d at 856
(“Intimidation as an element of a bank robbery does not occur
by negligent or accidental conduct. It is caused by an
intentional threat of force.”); McBride, 826 F.3d at 296 (“The
defendant must at least know that his actions would create the
impression in an ordinary person that resistance would be met
by force. A taking by intimidation under § 2113(a) therefore
involves the threat to use physical force.”).
15
purely in reliance on bank policy[.]” (Opening Br. at 12.) By
definition, § 2113(a) requires proof that a defendant
knowingly engaged in an act that would cause an ordinary
bank teller to be intimidated and turn over money that the
defendant knew he had no right to have.9 Because a
conviction under § 2113(a) requires the government to prove
a defendant knowingly committed a bank robbery by force
and violence or intimidation, it is quite obviously a crime of
violence under guidelines § 4B1.2(a)(1).
9
Wilson maintains that every circuit court has misread
Carter. As explained above, we do not agree with Wilson on
that point. Nevertheless, we briefly note three hypotheticals
that Wilson poses for his contention that § 2113(a) can be
violated by negligent or reckless behavior: (1) a defendant
could rob a bank with no intent to intimidate based on a
sincere belief that the bank teller would simply hand over
money on demand based on a bank’s policy to comply with
all demands for money, regardless of the perceived
seriousness of the threat; (2) a drug addict might submit a
demand note to a teller without caring whether or not his note
resulted in a teller handing over money; and (3) a bank robber
with a physically imposing presence could instill fear in a
bank teller without intending to intimidate. In each of those
examples, an individual is taking intentional action, i.e.,
attempting to rob a bank. Imposing an objective standard
with relation to the intimidation element does not change that
and does not turn § 2113(a) into a statute that criminalizes
negligent behavior. Accordingly, the least culpable way of
violating § 2113(a)’s first paragraph will always constitute a
“crime of violence.”
16
We thus join our sister circuits in holding that bank
robbery by intimidation, as set forth in § 2113(a),
categorically qualifies as a crime of violence under
§ 4B1.2(a)’s “elements” clause.10 Since bank robbery by
intimidation is indeed a crime of violence, the District Court
was correct to apply the career-offender enhancement.
10
Because we conclude that bank robbery by
intimidation is categorically a “crime of violence” under the
“elements” clause, we do not analyze whether it also is a
“crime of violence” under the “enumerated offenses” clause.
U.S.S.G. § 4B1.2(a).
17
B. Applying the Threat-of-Death Enhancement
Was Not Plain Error.
Wilson has also complained on appeal that the District
Court wrongly subjected him to a sentencing enhancement for
making a death threat. He did not, however, register that
objection before the District Court. “We review an
unpreserved objection for plain error.” Dahl, 833 F.3d at
349. A plain error has occurred when there is “(1) [an] error,
(2) that is plain or obvious, and (3) that affects a defendant’s
substantial rights.” United States v. Goodson, 544 F.3d 529,
539 (3d Cir. 2008). “If all three conditions are met, [we] may
then exercise [our] discretion to notice a forfeited error, but
only if ... the error seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” Id. (citation
omitted). In the context of sentencing, a defendant
establishes that an error affected his substantial rights by
showing that the sentence imposed “was affected, in the sense
that it likely would have been different but for the error.”
United States v. Knight, 266 F.3d 203, 207 (3d Cir. 2001).
Here, Wilson cannot establish that the District Court
committed plain error by applying the threat-of-death
enhancement because that enhancement did not affect his
sentence. Assuming that Wilson could establish that
application of the enhancement constituted an obvious error,
he still cannot show that the error affected his substantial
rights because the District Court correctly applied the career-
offender enhancement, and the threat-of-death enhancement
did not increase his sentence beyond the sentence mandated
18
by the career-offender enhancement.11 Thus, Wilson has not
shown plain error.
III. CONCLUSION
For the foregoing reasons, we will affirm the sentence
imposed by the District Court.
11
Once the career-offender enhancement is triggered,
the offense level determined by that guideline applies if it “is
greater than the offense level otherwise applicable[.]”
U.S.S.G. § 4B1.1(b). The offense level mandated by the
career-offender enhancement of § 4B1.1(b)(3) is 32, which is
greater than 27, the “offense level otherwise applicable” with
the threat-of-death enhancement. Accordingly, the threat-of-
death enhancement would only increase Wilson’s sentence if
we were to hold the career-offender enhancement
inapplicable. Because we hold that the career-offender
enhancement applies, any error (if there were any) in
applying the threat-of-death enhancement did not affect the
sentence Wilson received.
19