next case is united states versus m court to distinguish between a threat of harm which is an element of robbery by intimidation from a threat of death which if it's made during a bank robbery requires a two level enhancement to the base of ensemble misters ability pled guilty to bank robbery by intimidation and this court's model jury instructions to find intimidation as actions or words to use for the purpose of making someone else fear bodily harm if he or she resists this court and thomas cautioned sentencing courts to take care that they don't equate threats of violence with threats of death because treating all threats of harm or all threats that occur in the course of a bank robbery would defeat the distinction that the two level enhanced meant seeks to capture so the test is objective while the defendant's conduct and still a reasonable person who's the victim of a bank robbery the fear that she will be killed that the robber is threatening to kill her and the answer here  and so we look at what the district court actually found the district court said that a reasonable person in the teller's position would have viewed mistress a bielski his words and actions as a threat to kill where mr the bills he's i need this money now and you have two minutes to give it to me and he's standing pretty close to the teller counter and he has a bulge in his pocket now a demand for money essentially with this is a demand for money within a limited time period and that is quintessential intimidations are you then yes i would say that it's defeating the distinction it was subsumed off rights and so what's a distinction between this and and thomas you have first let me say that thomas the court was very clear that dictionary for some help with this but colloquially i'm coming back for your ass means i'm going to kill you so that was a very different scenario here he said nothing he said what he said give me the money now you have two minutes there's no threat there's no gesture there's no simulated an appearance of a what of a weapon there's no simulated throat slashing that we've seen in some of the other cases offense and it's a taking from a bank without force and violence or intimidation and the base offense level for bank larceny is actually sex so there's the sports team level increase in the guidelines already and it's done with the recognition that bank robbery by force and violence or by intimidation is serious it creates this threat of harm and it's a scary situation and it's that threat of harm which is an element of the robbery by intimidation serious sentencing consequences and the guidelines account for that with this fourteen level increase but it's the threat of death that we're talking about and that's an extra serious it carries actually extra serious consequences this additional two level enhancement and if you are firm on these facts what we're going to do is defeat the distinction again that the guideline unhandsome and seeks to apply that that's my question i'd like to talk big picture here because i find that this is a lenient sentence under the circumstances which is fine under pago but it's remarkable to me that the find it is appealing so it really made sense and i don't blame you if i were in your shoes i do the same thing because our jurisprudence says that where there's procedural error you get a do over was actually sit by my notes indicate that that with the enhanced when he was looking at thirty seven to forty six months yes and he gets a downward variance sentenced to twenty four months yes and without the enhancement my notes indicate thirty to  i had twenty four to thirty months twenty four to thirty nine all right well let's listen let's accept that i could i could be incorrect on that so let's see it's twenty four to thirty  the bottom of the guideline sentence on the range that you say was the appropriate range right and isn't this a perfect case for this court to say maybe judge fisher got it right maybe she got it wrong it's a close call how many angels can dance on the head of a pin we don't know but post booker it's all about the the big picture it's all about what what the man did what he's like what are his priors and she went through all that in excruciating detail with which is good i don't mean to say that pejoratively she she went into great detail it's a clean surface it's not it's a fair sentence it's it's linear unfair it's clean and what are we doing shouldn't prevents this panel from doing that yes i mean if you look at the post argument briefing in that case it was all about if there is the guidelines calculation at step one but the subs the range that's actually imposed either over encompasses the correct range can the error be harmless and the court was very clear in saying no it cannot be harmless our court always has to start from the correct guideline and then from there determine what's the appropriate sentence based on you know departures and variances because you can't reach that decision unless you're starting from the correct starting point so that question has been answered finot of it cannot be a harmless error standard so as you point out that from your perspective the much more concisely thank you but your retort i presume is well judge that maybe so but big picture this court hasn't come out with a broad it will be applied to almost any bank well i do agree with that statement if you look at the case law from the third circuit they have that this court has never affirm had gestured to the pocket and suggested a way that's what the case of say a suggestive juster to the weight coupled with the statement do you want to make it home tonight or you don't want to know how serious i am things like that the record is very clear there is absolutely no gesture to the pocket and you look at the circumstances of the totality here we have a man who walks and the teller believes that he's a customer he's familiar to her she says she believes she's seen him before in the small neighborhood he gives her a note there's a confused conversation she's not sure that this is a robbery initially and then he says give me the money you have two minutes the court describes him as calmly and patiently waiting for her to somehow threatening you look at the other circumstances that might litigate we would have us back to our life no there was not she said that she feared harm that's what she feared and the existence of the bulge the test is would a reasonable person feel fear they're about to be killed and so to say you see a bulge in someone's pocket and you think you're going to be killed that's an incredible leap and none of the cases have hel that they have held a gesture a suggestive gesture coupled with threatening words that can be a threat of death and that could be the inference but not the bulge standing alone and i i would recommend that the court watch the exhibit of the robbery because you will see it's a very tightly fitted jacket and you i mean you can draw your own conclusions from not it please the court laura when from the u s attorney's office on behalf of the government the issue of whether or not the district court properly applied this enhanced man is one that this court should not have the least bit of concern about for a number of reasons we need to start with five things in mind one is this is a reasonable victim standard it's an objective what would a reasonable victim respond to and how would they respond in this circumstance second it's by preponderance  of things that a court looks out like and here the intelligence has to find that she she did not she did not make that statement at her testimony but that's part of one of the important things of this courtroom member is that this is nowhere his the wonder what will happen eleven leaving the teller to wonder what will happen to me later in this case the defendant said give it to me now and so keeping that in mind with all the other facts we have i believe there's a lot more on the record to think that's the case for a number of reasons one is because the court has made clear the test is the totality second this particular district court recognised that there's a risk of having a per se rule and that's why the other facts here are so important not of which one of my main points would be none of these facts or challenges clearly around us so we have a situation where let's take it step by step this individual comes in and it is undisputed that when he first approached she was not afraid she was confused i don't i  recognised him he's handed me this note it's a ten thousand dollars i asked him do you want this from your checking account your savings account and there was confusion there was a dialogue back and forth the deep difference between the parties on this point is that this encounter is not static it is a dynamic dynamic process she went from confusion as she testified once i realized it was a bank robbery that the situation changed and what did she see and feel and hear from his actions his words she saw his blood novels he was bigger than her as the district court found he was leaning close to her he said i want it now you don't understand i want this money now you have two minutes to give it to me she testified that she noticed this balls she thought it might be a weapon that was her testimony that's not challenges being clearly around yes she testified i was so scared i was and afraid to give him the bait money for fear that he would do something to me she testified i was afraid he was going to come back because i didn't where the court has never held that there has to be testimony either from the teller or from the perpetrator that the death is going to be the result in fact the opposite conclusion has been drawn in many cases which is if there is a back then people use weapons and when people get you you know w weapon is used upon you death is a is a possibility and i think that's sufficient so on these facts will be our position you take the totality that again no findings of fact are being challenge is clearly erroneous and also keeping in mind the challenge  and they're saying as a matter of law the district court erred so they're saying the facts are all true the district court just made a problem applying them and when that is the review this court exercises very deferential review of the district courts application of facts to law and we would argue that that in excited returning to judge hartman's argument again i would take issue with the position taken by my opponent that this word has been very clear that there will never ever be a harmless error analysis when there is a guideline application error i don't case where there would be harmless error and i think if you look at the subsequent decision sense then in fact the most recent one was just several weeks ago and i believe judge master was on the panel a case by the name of  again the court said that it's a rare rare circumstance we don't find it here and i will fully acknowledge we did not argue harmless error in this case however the court may affirm on any basis that shown on there with their complete record and we believe that the court doesn't need to get to this point that this would be a case and here is why because this judge hartmann pointed out this individual received a twenty four month sentence and i don't know i'm not sure where when i got her the range but i agree with judge hart and i read computer that it came to thirty to thirty seven months but in any event we have a very thorough record in this case and there is nothing to indicate that this district court used anything related to the guidelines to come up with a twenty four month sentence instead of just the opposite is true she looked at every factor there really is logically and as organized as possible and came to the conclusion that this was a case in which a twenty four month sentence was reasonable but there's a lot of ilog here though world if it's a jump ball or close call reasonable minds could differ why seek the enhancement thirty five fifty three a drives the pos post parker and all the senses all you're doing is creating new work if you this enhanced event there's no appeal there's no case if the case is over week every every criminal lawyer in this room knows that this twenty four months sense is a clean sentence on both sides of the aisle everybody knows that why are these just write me and if i'm expressing some frustration i it's because i'm frustrated these are academic exercises that did are more appropriate in a watch school rather than in the courts so why are you why are your lawyers steadfastly pursuing these things instead of just arguing the totality under thirty five fifty three at i hear what you're saying and the message will be delivered but it is always in the fact in this case that the parties had agreed  about whether or not that would apply i did not ask that question of the trial is this in this case i will could very included could be assistant u s attorney at that time have said your honor we're not going to seek this to level in hansen and the judge still saying that i think it's i think it's appropriate  and go ahead and impose it so we're very left with respect to defending the sentence certainly i think we could that could have happened and i would encourage me the next level of illogic why would any trial judge grant the government what's going on in the sensing arena with the trial courts and these enhanced ones because we've we've exalted we've exalted these departure issues in these guidelines adjustment issues  to a level that is completely in a mccool to what booker was trying to do would you agree with that or disagree i would certainly agree with you that it has taken on a life of its sound both regard to this particular case i think and this is just an assumption on my part that there was some concern that the divan it was going to be asking for a sense of probation so the trial assistant was trying to ensure that a full picture was given to the district court whether that was right or wrong certainly we can we can reevaluate whether or not guidelines and handsome should be sought but i think the bigger picture is the supreme court has said the guidelines remain relevant they still provide information it's a tool for everyone to know where everyone else is telling it's a quantified system it provides position would be you're still relevant but i guess what i'm suggesting to you is which really relevant in the post corker era is what happened not with bochy fit into two points here three points here which other cases in which the court has refused to find a harmless error like oh that's because lo think and tomorrow because this is a case in which you have such a drastic downward variance those other cases you know in tomorrow the same guideline range was going to be used with or without the mistake in the guideline calculation and this court felt there was no way to determine whether or not the same sentence would have tain i pod i mean that our position would be that in this case given the magnitude of the variance given that there is no connection to it and its magnitude to the guideline calculation and given the throws statement by the district court as to why this is a proper sentence we believe that if the court should reach the issue that there would be deemed argument briefing on the issue if you think that it would be helpful to you i would appreciate a briefing on on the horrible center issue let me just a bit go ahead i apologize but just briefly from my memory wh a harmless error is if the court is extremely clear that no matter what i'm giving twenty four months and i don't care if this is this is the guideline or that's the guideline or this is your argument or that's your argument i'm always going to get twenty four months in those cases a counterargument it's solid but also so i'm curious to see whether that's foreclosed so we're not rather than that some post argument briefing on that matter if you would yes and i just want to point out just a few factual inconsistency is the teller said she thought there was a gun or a knife or something she didn't say she thought the bolts contained a gun definitely and she the government is referring to tellers after the fact for the lingering fear the after effects of the robbery and that in fact is what the government argued below that in determining whether to impose this enhanced that the court should consider the lingering effects of the robbery that she transfer that she didn't want to park in that parking spot anymore and that's why this issue was refused to know about the court did it is a guidelines interpretation question the court did consider the subject of fear of the teller and there are subjective heights and ages and she also consider the alleged intent of the defendant when she says he's going to he says that he squinted to look angry we know from the teller that she never believed that he looked angry she thought  suggested motion to the bulge and without any threat of even harm this is quintessential intimidation it's saying it's something that's covered and paralyzed by the fourteen level between bank