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. e du/thir dc ir c uit_2001/277Filed 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 AppellantMICHAEL 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 senten ce for bank robbery under the United States Sentencing Guidelines ("U.S.S.G."). Pursuant to a plea agreeme nt, Day pled guilty before the District Court for the Easte rn District of Pennsylvania to two counts of bank robbery. At sentencing, the District Court adopted the recommen dation 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 tel lers 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 Stat es 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 a pply to this case because the Sentencing Guidelines in e ffect at that time required an "express threat of death" whi le the

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1. U.S.S.G. S 2B3.1(b) addresses specific offense c haracteristics for robbery. Subsection 2B3.1(b)(2)(F) states in full:" [I]f a threat of death was made, increase by 2 levels."

2Guideline 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 provis ion and that the Commentary supports this interpretatio n. 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) pro vides that a "defendant may file a notice of appeal in th e district
court for review of an otherwise final sentence if the sentence . . . (2) was imposed as a result of an in correct application of the sentencing guidelines . . . ." O ur review of the District Court's application and interpretat ion 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 t he 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 slig htly altered the Commentary language to explain the provision's intent
to raise the offense level in cases in which the of fender
instills in a reasonable victim a fear of death. 3

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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, g esture, or combination thereof. Accordingly, the defendant does not have to state expressly
his intent to kill the victim in order for t he 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 t he 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 el se (where the defendant

3The only question we must answer is whether this

amendment to U.S.S.G. S 2B3.1(b)(2)(F) subsequent t o Figueroa could have invalidated that case. We concl ude, to the contrary, that by removing the word "express" f rom the enhancement criteria, the Sentencing Commission did no more than clarify its approval of the result reache d in Figueroa and similar cases decided by our sister co urts of appeals.

Even when S 2B3.1(b)(2)(F) required an "express" th reat 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 a s a threat of death. This argument does not make sense. The deletion of the word "express" plainly broadened th e Guideline rather than narrowed it. Even if, contrar y to Figueroa, the words "I have a gun" did not constitu te an express threat of death, under the current Guidelin e language they would still qualify for the enhanceme nt because they are an implicit threat of death. We th us agree with the Seventh Circuit's decision in United State s v. Gibson, 155 F.3d 844 (7th Cir. 1998), which held th at the words "I have a gun" can constitute a threat of dea th under the amended Guideline provision. Id. at 847.

Notably, we already anticipated this case in the Fi gueroa opinion. At that time, we reached the obvious concl usion that our result would be the same -- in fact, it wo uld be even more clearly correct -- under the amended Guid eline.

We wrote that

[w]hile we do not doubt that our result is c orrect under section 2B3.1(b)(2)(F) and the commentary as it is now

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

me the money or you are dead" would constitute a threat of death. The
court should consider that the intent of thi s provision is to provide
an increased offense level for cases in whic h the offender(s) engaged
in conduct that would instill in a reasonabl e 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).

4written, we take note of the circumstance th at the

United States Sentencing Commission has prop osed an amendment to the commentary to make clear th at 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 ind icated 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. Tha t 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 Figue roa. He points out in particular that the explanatory co mment does not explicitly approve Figueroa but does refer to other cases, namely United States v. Robinson, 86 F.3d 11 97 (D.C. Cir. 1996) (finding an express threat of deat h where appellant had only used a note stating, "Give me a pack of 20s or I will shoot somebody in here now."), and Un ited States v. Murray, 65 F.3d 1161 (4th Cir. 1995) (fin ding 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 ref ers to
the "combination of the defendant's actions and wor ds" as
the basis for an enhancement. Our examination of th e explanatory comment, however, shows Day's argument to be unconvincing.4

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4. The text of the explanatory comment reads:

This amendment addresses a circuit court con flict 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.,

5In the first place, even if the Commission's explan atory

comment had made it into the Commentary itself (whi ch it did not), we would not be required to follow it to the extent it conflicts with or misinterprets the Guideline. S tinson v. United States, 508 U.S. 36, 38 (1993). In this case , a reading of the amendment that barred implicit threa ts of death (which "I have gun" surely is to the extent t hat 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 Figuero a. 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 8 78-79 ("[I]n light of the commentary's direction to consi der 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 Circ uits more persuasive."). The majority appellate position provides that whether a threat of death is express depends i n part on the perception of the reasonable recipient of th e 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, th e references to Robinson and Murray as examples of ad equate threats of death do not undermine the validity of F igueroa. The threat in Figueroa may have been less explicit, but nowhere does the Commentary provide that Robinson a nd Murray represent the only examples of language that would qualify for the enhancement. On the contrary, we ci ted

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United States v. Robinson, 86 F.3d 1197, 120 2 (D.C. Cir. 1996) (enhancement applies if (1) a reasonable per son in the position of the immediate victim would very likely belie ve 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. Mur ray , 65 F.3d 1161,
1167 (4th Cir. 1995) ("any combination of stateme nts, gestures, or
actions that would put an ordinary victim in reasona ble fear for his or her life is an express threat of death").

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

6approvingly to both Robinson and Murray in the Fig ueroa

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 plai nly
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 threa t of death where appellant used only a note); Murray , 6 5 F.3d at 1166 (finding an express threat of death where t he defendant only orally threatened to use his gun). M oreover, the Commentary itself sanctions words alone as enou gh 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 Figue roa. 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 D istrict
Court is affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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