2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-28-2001

USA v. Day

Precedential or Non-Precedential:

Docket 01-1684

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Recommended Citation

"USA v. Day" (2001). 2001 Decisions. Paper 277.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/277
Filed November 28, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 01-1684 

UNITED STATES OF AMERICA 

v. 

ROGER LEE DAY, 

 Appellant 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Crim. Nos. 00-cr-00701-1 and 01-cr-00037-1) 

District Judge: Hon. Eduardo C. Robreno 

Submitted Under Third Circuit LAR 34.1(a) 

October 30, 2001 

Before: SLOVITER, NYGAARD, and AMBRO, 

Circuit Judges 

(Filed: November 28, 2001) 

 ROBERT P. FULTON, ESQUIRE 

 150 South Easton Road 

 Glenside, PA 19038 

 Counsel for Appellant 
 MICHAEL L. LEVY 

 United States Attorney 

 ROBERT A. ZAUZMER 

 Assistant United States Attorney, 

 Chief of Appeals 

 BERNADETTE MCKEON 

 Assistant United States Attorney 

 615 Chestnut Street, Suite 1250 

 Philadelphia, PA 19106 

 Counsel for Appellee 

OPINION OF THE COURT 

AMBRO, Circuit Judge: 

Roger Lee Day appeals the enhancement of his sentence 

for bank robbery under the United States Sentencing

Guidelines ("U.S.S.G."). Pursuant to a plea agreement, Day 

pled guilty before the District Court for the Eastern District 

of Pennsylvania to two counts of bank robbery. At 

sentencing, the District Court adopted the recommendation 

in the presentence investigation report that Day's sentence 

be enhanced two levels because he made a "threat of death" 

while committing the robberies. U.S.S.G. S 2B3.1(b)(2)(F).1 

This threat consisted of Day's passing notes to tellers at the 

banks he robbed that read, "Put some money on the 

counter. No dye packs. I have a gun." The District Court 

heard arguments on the appropriateness of this 

enhancement and concluded that the enhancement was 

warranted under this Court's holding in United States v. 

Figueroa, 105 F.3d 874 (3d Cir. 1997). In Figueroa, the 

defendant used a note that read in relevant part,"I have a 

gun. Give me all the money." Id. at 876. 

In this appeal, Day argues that Figueroa does not apply 

to this case because the Sentencing Guidelines in effect at 

that time required an "express threat of death" while the 

_________________________________________________________________ 

1. U.S.S.G. S 2B3.1(b) addresses specific offense characteristics for 

robbery. Subsection 2B3.1(b)(2)(F) states in full:"[I]f a threat of death 

was made, increase by 2 levels." 

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Guideline has since been amended to require only a"threat 

of death." He contends that the removal of the word

"express" somehow narrowed the scope of this provision 

and that the Commentary supports this interpretation. We 

disagree and thus affirm Day's sentence. 

I. Jurisdiction and Standard of Review 

We have jurisdiction over this appeal under 28 U.S.C. 

S 1291 and 18 U.S.C. S 3742(a). Section 3742(a) provides 

that a "defendant may file a notice of appeal in the district 

court for review of an otherwise final sentence if the 

sentence . . . (2) was imposed as a result of an incorrect 

application of the sentencing guidelines . . . ." Our review 

of the District Court's application and interpretation of the 

Sentencing Guidelines is plenary. United States v. Hallman, 

23 F.3d 821, 823 (3d Cir. 1994). 

II. Discussion 

Day concedes that, if not for a 1997 amendment to the 

Sentencing Guidelines, his case appears "strikingly similar" 

to Figueroa.2 The amendment to which he refers took effect 

on November 1, 1997. It deleted the word "express" from 

the phrase "express threat of death," modified the 

accompanying Commentary to acknowledge that either an 

explicit or implicit threat would suffice, and slightly altered 

the Commentary language to explain the provision's intent 

to raise the offense level in cases in which the offender 

instills in a reasonable victim a fear of death. 3 

_________________________________________________________________ 

2. Prior to the amendment, U.S.S.G. S 2B3.1(b)(2)(F) read: "[I]f an 

express 

threat of death was made, increase by 2 levels." 

3. The Commentary, as amended, provides as follows:

 "A threat of death," as used in subsection (b)(2)(F), may be in the 

 form of an oral or written statement, act, gesture, or combination 

 thereof. Accordingly, the defendant does not have to state 

expressly 

 his intent to kill the victim in order for the enhancement to 

apply. 

 For example, an oral or written demand using words such as "Give 

 me the money or I will kill you", "Give me the money or I will pull 

 the pin on the grenade I have in my pocket","Give me the money or 

 I will shoot you", "Give me your money or else (where the defendant 

 3 
The only question we must answer is whether this 

amendment to U.S.S.G. S 2B3.1(b)(2)(F) subsequent to 

Figueroa could have invalidated that case. We conclude, to 

the contrary, that by removing the word "express" from the 

enhancement criteria, the Sentencing Commission did no 

more than clarify its approval of the result reached in 

Figueroa and similar cases decided by our sister courts of 

appeals. 

Even when S 2B3.1(b)(2)(F) required an "express" threat of 

death, we held in Figueroa that the exact words "I have a 

gun" would suffice to trigger a two-point sentence 

enhancement. Day argues, however, that under the 

amended Guideline, in which the word "express" has been 

removed, the same words somehow no longer qualify as a 

threat of death. This argument does not make sense. The 

deletion of the word "express" plainly broadened the 

Guideline rather than narrowed it. Even if, contrary to 

Figueroa, the words "I have a gun" did not constitute an 

express threat of death, under the current Guideline 

language they would still qualify for the enhancement 

because they are an implicit threat of death. We thus agree 

with the Seventh Circuit's decision in United States v. 

Gibson, 155 F.3d 844 (7th Cir. 1998), which held that the 

words "I have a gun" can constitute a threat of death under 

the amended Guideline provision. Id. at 847. 

Notably, we already anticipated this case in the Figueroa 

opinion. At that time, we reached the obvious conclusion 

that our result would be the same -- in fact, it would be 

even more clearly correct -- under the amended Guideline. 

We wrote that 

 [w]hile we do not doubt that our result is correct under 

 section 2B3.1(b)(2)(F) and the commentary as it is now 

_________________________________________________________________ 

 draws his hand across his throat in a slashing motion)", or "Give 

me 

 the money or you are dead" would constitute a threat of death. The 

 court should consider that the intent of this provision is to 

provide 

 an increased offense level 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. 

U.S.S.G. S 2B3.1(b)(2)(F), cmt. n.6 (2001). 

 4 
 written, we take note of the circumstance that the 

 United States Sentencing Commission has proposed an 

 amendment to the commentary to make clear that the 

 Commission's intent has been in accord with the 

 majority position we now are joining. 

Figueroa, 105 F.3d at 880. Likewise, the dissent in Figueroa 

argued that the word "express" in the Guideline indicated 

that it could not apply to an implicit threat such as "I have 

a gun," but that after the proposed amendment took effect, 

that difficulty would disappear. Id. at 881-82. That 

amendment passed exactly as we anticipated, and we see 

no reason now to reach a different result than the one we 

predicted. 

The primary argument that Day offers for his 

interpretation is that the explanatory comment 

accompanying the amendment demonstrated the 

Sentencing Commission's intent to depart from Figueroa. 

He points out in particular that the explanatory comment 

does not explicitly approve Figueroa but does refer to other 

cases, namely United States v. Robinson, 86 F.3d 1197 

(D.C. Cir. 1996) (finding an express threat of death where 

appellant had only used a note stating, "Give me a pack of 

20s or I will shoot somebody in here now."), and United 

States v. Murray, 65 F.3d 1161 (4th Cir. 1995) (finding an 

express threat of death where the defendant stated,"Give 

me three stacks of $20s. Don't give me a dye pack. I have 

a gun pointed at you . . . . You think I'm playing?"). In 

addition, he notes that the explanatory comment refers to 

the "combination of the defendant's actions and words" as 

the basis for an enhancement. Our examination of the 

explanatory comment, however, shows Day's argument to 

be unconvincing.4 

_________________________________________________________________ 

4. The text of the explanatory comment reads: 

 This amendment addresses a circuit court conflict regarding the 

 application of the "express threat of death" enhancement in S 2B3.1 

 (Robbery). The amendment adopts the majority appellate view which 

 holds that the enhancement applies when the combination of the 

 defendant's actions and words would instill in a reasonable person 

 in the position of the immediate victim (e.g., a bank teller) a 

greater 

 amount of fear than necessary to commit the robbery. See, e.g., 

 5 
In the first place, even if the Commission's explanatory 

comment had made it into the Commentary itself (which it 

did not), we would not be required to follow it to the extent 

it conflicts with or misinterprets the Guideline. Stinson v. 

United States, 508 U.S. 36, 38 (1993). In this case, a 

reading of the amendment that barred implicit threats of 

death (which "I have gun" surely is to the extent that it is 

not explicit) would flatly contradict the language of 

S 2B3.1(b)(2)(F) itself. 

Second, and more importantly, nothing in the 

explanatory comment suggests a rejection of Figueroa. On 

the contrary, the comment states that the amendment

adopts the "majority appellate view," which is also the view 

we adopted in Figueroa. See Figueroa, 105 F.3d at 878-79 

("[I]n light of the commentary's direction to consider the 

effect of the threat upon the reasonable victim, we find the 

reasoning of the Courts of Appeals for the Fourth, Seventh, 

Eighth, Ninth, Tenth, and District of Columbia Circuits 

more persuasive."). The majority appellate position provides 

that whether a threat of death is express depends in part 

on the perception of the reasonable recipient of the threat 

rather than solely on whether the perpetrator made an 

explicit threat to kill the victim. Id. at 877. We agree that 

the explanatory comment did not mention Figueroa , but 

that hardly means that it rejected it. Likewise, the 

references to Robinson and Murray as examples of adequate 

threats of death do not undermine the validity of Figueroa. 

The threat in Figueroa may have been less explicit, but 

nowhere does the Commentary provide that Robinson and 

Murray represent the only examples of language that would 

qualify for the enhancement. On the contrary, we cited 

_________________________________________________________________ 

 United States v. Robinson, 86 F.3d 1197, 1202 (D.C. Cir. 1996) 

 (enhancement applies if (1) a reasonable person in the position of 

 the immediate victim would very likely believe the defendant made 

 a threat and the threat was to kill, and (2) the victim likely 

thought 

 his life was in peril); United States v. Murray , 65 F.3d 1161, 

1167 

 (4th Cir. 1995) ("any combination of statements, gestures, or 

actions 

 that would put an ordinary victim in reasonable fear for his or her 

 life is an express threat of death"). 

U.S.S.G. app. C, Amendment 552 (1997). 

 6 
approvingly to both Robinson and Murray in the Figueroa 

opinion. Figueroa, 105 F.3d at 877. 

Third, and finally, Day incorrectly emphasizes the 

language referring to "words and actions" in the 

explanatory comment. The Commission's examples plainly 

demonstrate that the robber need not use both words and 

actions to communicate a threat of death. See, e.g., 

Robinson, 86 F.3d at 1198 (finding an express threat of 

death where appellant used only a note); Murray , 65 F.3d 

at 1166 (finding an express threat of death where the 

defendant only orally threatened to use his gun). Moreover, 

the Commentary itself sanctions words alone as enough by 

providing that " `[a] threat of death,' as used in subsection 

(b)(2)(F), may be in the form of an oral or written statement, 

act, gesture, or combination thereof." U.S.S.G. 

S 2B3.1(b)(2)(F), cmt. n.6. There is thus no merit to Day's 

argument that a threat of death requires both words and 

actions together. 

III. Conclusion 

The 1997 amendment to the Sentencing Guidelines on 

which Day relies did not alter our holding in Figueroa. If 

anything, the amendment only reaffirmed the outcome in 

that case. In this context, Figueroa applies almost exactly to 

the facts before us, and thus the judgment of the District 

Court is affirmed. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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