United States v. Evans

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4797
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL ELLIS EVANS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-03-38)
Submitted: July 29, 2005 Decided: August 16, 2005
Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Hervery B. O. Young, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, E. Jean Howard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Ellis Evans pled guilty to bank robbery, 18
U.S.C. § 2113(a) (2000), and was sentenced to a term of forty-six
months imprisonment. Evans appeals his sentence, contending first
that the district court erred in making a sentence enhancement for
a threat of death, U.S. Sentencing Guidelines Manual
§ 2B3.1(b)(2)(F) (2003), and, second, that his sentence violated
the Sixth Amendment under Blakely v. Washington, 542 U.S. 296(2004). For the reasons explained below, we affirm the sentence.
Evans robbed a Bank of America in Greenville, South
Carolina, by giving the teller a note that read, “I have a gun.
Don’t make a sound, no die pack. Put the money on the counter.
$100, $50, $20 packs. No alarm.” Following Evans’ guilty plea,
the probation officer calculated a base offense level of 20, USSG
§ 2B3.1(a), adding a two-level enhancement for taking the property
of a financial institution, USSG § 2B3.1(b)(1), and a two-level
enhancement for a “threat of death.” USSG § 2B3.1(b)(2)(F). With
a three-level reduction for acceptance of responsibility, USSG
§ 3E1.1, Evans’ final offense level was 21. He was in criminal
history category II, which gave him a guideline range of 41-51
months. At sentencing, the district court overruled Evans’
objection to the enhancement for a threat of death, and imposed a
sentence of forty-six months imprisonment.
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On appeal, we find first that the enhancement for a
threat of death was not error. Because the facts are not in
dispute, we review de novo the district court’s legal determination
that Evans’ statement to the teller constituted a threat of death.
United States v. Franks, 183 F.3d 335, 337 (4th Cir. 1999)
(district court’s legal interpretation of guideline terminology and
application of guidelines to known set of facts are reviewed de
novo).
A threat of death may be implied; the enhancement is
intended “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.” USSG § 2B3.1, comment. (n.6). Franks
held that statements that indicated that the robber had a gun and
was prepared to use it constituted a threat to shoot the teller if
she did not follow his instructions, which in turn amounted to a
threat of death. 183 F.3d at 338 (noting that the statement, “I
have a gun. Give me all the money,” was held to convey a threat of
death in United States v. Figueroa, 105 F.3d 874, 880 (3d Cir.
1997)). In this case, Evans’ statement, “I have a gun. Don’t make
a sound, no die packs. Put the money on the counter. $100, $50,
$20 packs. No alarm,” conveyed a similar threat to use the gun,
i.e., shoot the teller if she did not comply with his demands. We
conclude that the district court did not err in deciding that Evans
made a threat of death within the meaning of § 2B3.1(b)(2)(F).
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Evans also contends that the district court’s finding
that he made a threat of death violated the Sixth Amendment.
Because Evans has raised the constitutional issue for the first
time on appeal, our review is for plain error. United States v.
Olano, 507 U.S. 725, 731-32 (1993); United States v. White, 405
F.3d 208, 215 (4th Cir. 2005). To establish that his sentence was
imposed in violation of the Sixth Amendment, Evans must show that
his sentence exceeded the maximum permitted based solely on the
facts he admitted. United States v. Booker, 125 S. Ct. 738, 756
(2005); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.
2005).
Evans admitted taking the property of a financial
institution, a fact that was established by his guilty plea to the
charge that he robbed a bank. Although he did not admit that his
demand note constituted a threat of death, his sentence did not
exceed the maximum the court could have imposed based only on facts
he admitted, and may thus be affirmed. United States v. Evans, ___
F.3d ___, 2005 WL 1705531, at *1 (4th Cir. July 22, 2005). Evans
held that whether Sixth Amendment error occurred is determined by
considering what guideline range applies “based on the facts [the
defendant] admitted before adjusting that range for acceptance of
responsibility.” Id. at *1 & n.4. In this case, without the two-
level threat of death enhancement and before any reduction for
acceptance of responsibility, Evans’ offense level would have been
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22 instead of 21, and his guideline range would have been 46-57
months instead of 41-51 months. Evans’ 46-month sentence is within
the guideline range that would have applied without the
enhancement. Therefore, we conclude that no Sixth Amendment
violation occurred.
Accordingly, we affirm the sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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