United States v. Michael Pinney

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1656
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri
Michael William Pinney, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 7, 2000
Filed: November 14, 2000
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Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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PER CURIAM.
Michael William Pinney appeals the sentence imposed by the District Court1 for
the Western District of Missouri upon his guilty plea to robbing a bank, in violation of
18 U.S.C. § 2113(a). The district court sentenced appellant to 51 months imprisonment
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
and 3 years supervised release. For reversal, appellant argues the district court erred
in increasing his base offense level pursuant to U.S.S.G.
§ 2B3.1(b)(2)(F) (“if threat of death was made, increase by 2 levels”). For the reasons
discussed below, we affirm the judgment of the district court.
Appellant admitted to the following offense facts: he handed the teller a note
which read “I have a gun. I don’t want to use it. Just give me your money. Thanks.”;
he kept one hand in his pocket as if he had a gun; and when the teller hesitated, he said,
“I don’t have all day.” We believe that appellant’s conduct sufficiently expressed a
threat of death, thus warranting the increase. See id. § 2B3.1, comment. (n.6)
(enhancement does not require express statement of intent to kill victim, and applies to
“conduct that would instill in a reasonable person, who is a victim of the offense, a fear
of death”; threat may consist of oral or written statement, act, gesture, or combination);
United States v. Gibson, 155 F.3d 844, 845-47 (7th Cir. 1998) (robber’s note stating
“I have a gun” constituted threat of death in context of robbery where unusual
mitigating circumstances were not present); cf. United States v. Bell, 12 F.3d 139,
139-40 (8th Cir. 1993) (per curiam) (robber’s note warning teller not to make sudden
moves or alert anyone or robber would pull pistol and start shooting expressed
sufficient immediate threat of death to warrant § 2B3.1(b)(2)(F) increase).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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