district court's application of this guideline enhanced by a two point enhancement for an expressed threat of death in the france case the defendant passed a note to a bank teller which indicated give me all the one hundred and fifty s in your drawer i have dynamite the guideline section subsequently changed slightly in two thousand and remove the requirement that it be an express threat of death you know and simply required that it be a threat of down in this case the defendant said with all your money on top of the counter i have a gun i would suspect ordinarily i think there's always room for an exception although i don't see one in this case that was not in dispute what was said was not in dispute there was no challenge to the to the accuracy of the pre sentence repor guilty by the time we got around the sentencing he was not challenging whether or not those words were page seven indicates that no reasonable person in the place of the victim would have experienced the fear of yeah under the totality of the circumstances necessary necessary just to get the teller to turn over the money we see of a wide variety of bank robbery cases many of which just involve notes where people enter the banks and just demand money without any further threatening conduct any threat of using any kind of a weapon the united states sentencing commission apparently felt that it's more egregious for someone before i don't really think that there's any reason to be enhancing anything if the judge recognizes that that saying i have a gun can titles an individual to the  very very well maybe but the person in the higher guideline category as a starting point now i'd agree the judge could fashion a reasonable sentence and sense a person deciding this particular issue we need a starting point for the court to look at and then the court can make whatever adjustments are necessary from that starting point but it seems to me that we need to correct your understanding  down then they would move from that guideline range to the in the france case this court indicated that using an objective rather than a subjective inquiry into how a victim perceives the threat we agree with the probation department and departments when a robber announces by word or by action that he possesses a gun he is also communicating to the reasonable victim his intention to use that weapon after all what is the purpose bank and they say they have a gun the clear implication seems to me to be that he intends to use a gun to shoot somebody and not not just one of them the question becomes are you know a rational observer that we all hopefully are rational beings and it seems to me to make little difference if i'm a bank teller and that's that's the context in which we have to really to view these statements as in the in the context of a reasonable bank teller i don't know that a reasonable bank threat of death not a threat of serious bodily injury but what we have to focus on here is did the district court they could clearly erroneous decision and the government cites france the once in one thousand five months or a case numerous times and reefer li heavily on it but it's important to look at what did france whole and evil of the last page of france in that case the district court judge did imposing hands then they said that the judges factual findings were not clearly erroneous that the judge's determination that this was a threat of death as a crime by the guidelines was not clearly erroneous and that's what this court needs to look at here and if you look at the district court's decision which is lumping to thirty five to thirty seven what the court said was that he sees a lot of these cases and it  appears that him it's a very specific factual context that every case is different in every case the facts vary in that light he's looking at is the entire circumstance on page thirty six he talks about not just the words but the context the gestures the circumstances in which the threat was making and that what the court ultimately finds that when viewing the situation under the tell you the circumstances on page thirty seven of the record he says that this statement in the context that it was made and the the head manager came over and then my client some of politely said please sir have her hand over the money her and he looked at that entire circumstance and this is an objective in court we don't look at whether the teller was in fact afraid when he did this case  what we can look at is the subjective actions of the teller are circumstantial evidence of the context and circumstances in which the threat was made and what we don't have is the tenor and demeanor of the declarant here we don't a person say i have a gun and their demeanor and their of the livery and all the various nonverbal cues and circumstances are going to communicate a very different message to listeners and that is one of the most specific factual in that judge can make and certainly the promise of the sentencing judge to make that determination and we're talking about here we know we need a threat for a bank fraud if you go in there and plainly ask for money you are not guilty because you did not make a threat there has district court the place to the bar did it rise to the threat of death or is it within that realm of threats necessary conviction but not necessary not sufficient for the enhanced and who is going to be best suited to make that court judge that's the kind of the termination that we asked the courts make every day that's the kind of determination they should make this is a district court that sat there and looked at mr jennings you know that mr jennings looks like and that's part of the evaluated when he made the determination of whether or not mr jennings up so i'd be disingenuous i believe for me to get here and say that that was not what the district court looked at when he made his the terminations one thing i'd like to point out your honor is that under the sentencing guidelines in the commentary they li numerous examples of what would qualify as the threat of death not one of those example says that i have a gun alone is sufficient now i'm not going to stand before the court and say that the district what is going to be wrong when it imposes that enhancement in a case where an individual said i have a gun context was it that supports this finding of the district why the judge was looking at evidence of the demeanor and nonverbal cues giving up on mr jennings we made the statement he's looking at the circumstantial evidence of the fact that the teller was not indeed frightened as you took the time to get a manager he's looking at the subsequent statement made by mr jennings when the manager comes over or uses the polite moniker sir good dress the bank manager he's looking at all the circumstances the only role for this court is determined whether or not that decision was clearly wrong and clearly erroneous is the government often time three times tells me is a very difficult standard for them to meet oh we're not looking at a statement which has factual determination here should stand now on the issue of the booker of likely remain and i have to stand up for the government here a bit even though i think that this is all a futile effort if we go back and every man the district court the most i think was the same sentencing and when the district court judge of here in front of for many years nonetheless the district court judge did ask the government to appeal this decision because of some confusion and because the government argues that forcefully for the district court felt that some further clarification on the court would be helpful in further sensing manner so there is nothing wrong with the government appealing this if the government wins for ash it should go back and every man i threw out all the the term it all  pocket that's sufficient to constitute a threat of death i don't think we need to put bank tellers in a position where they have to analyze when somebody says they have a gun whether or not it's a real gun a plastic gun a b b gun whether or not it's loaded they have as judge gives an advocate raises the conversation to a whole new level when somebody comes in and says they have a gun can to now if they have tractors that they can point to there would overcome them that they have to point and he has one of the under the guidelines i think there's a there's a possibility for that but i think whenever reasonable and to make a determination as to whether there really is a whether that person wants to gamble on the idea that it is or is not or will or will not be that's exactly what i wanted to make was that i don't think we want to put bank tellers in the position of having to make those kind of determinations to somebody comes in and says they have a gun or they have dynamite or they have some other dangerous weapon th and the judge didn't look elsewhere instructed in the france case to look at the objective impact of making that statement to a reasonable bank teller and thank you very much for the case i th