UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4799

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NEAL ALVIN POWELL,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad,

Jr., Chief District Judge. (3:11-cr-00139-RJC-1)

Submitted: April 24, 2013 Decided: April 30, 2013

Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Henderson Hill, Executive Director, Joshua B. Carpenter, FEDERAL 

DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North 

Carolina, for Appellant. Anne M. Tompkins, United States

Attorney, William M. Miller, Assistant United States Attorney, 

Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Neal Alvin Powell pled guilty to three counts of bank 

robbery, in violation of 18 U.S.C. § 2113(a) (2006), and was 

sentenced to sixty-two months’ imprisonment. Powell appeals his 

sentence, challenging the district court’s application of a twolevel increase in his offense level for making a threat of 

death. U.S. Sentencing Guidelines Manual § 2B3.1(b)(2)(F) 

(2011). We affirm.

In each of the three robberies, Powell used a demand 

note. In the first robbery, the note said, “All of the money in 

your cash Drawer Before I shoot Hurry.” In the second robbery, 

the note said, ”Give me all the money or I’ll shoot hurry the 

drawer $ ssh!!” In the last robbery, the note said, ”Give me 

your money in the cash drawer before I shoot.” At the 

sentencing hearing, Powell argued that the threat of death 

enhancement should not be applied because his threat was not an 

explicit threat to kill and he did not make any gestures or take 

any action that would have heightened the threat. Therefore, in 

his view, his notes were unlikely to cause a fear of death. The 

district court disagreed and decided that Powell’s notes would 

cause a reasonable teller to fear death. On appeal, Powell 

contends that the district court erred by failing to consider 

the totality of the circumstances before deciding that the 

enhancement applied. 
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We review a sentence for procedural and substantive 

reasonableness under an abuse of discretion standard. Gall v. 

United States, 552 U.S. 38, 51 (2007). Miscalculation of the 

Guidelines range is a significant procedural error. Id. at 51. 

A threat to shoot a teller is a threat of death. United States 

v. Franks, 183 F.3d 335, 337-38 (4th Cir. 1999). Generally, the 

test is an objective one—whether the defendant’s statement would 

“instill a fear of death in a reasonable victim—not the reaction 

of the particular teller[.]” United States v. Jennings, 439 

F.3d 604, 613 (9th Cir. 2006); Franks, 183 F.3d at 338; United 

States v. Gibson, 155 F.3d 844, 846 (7th Cir. 1998). However, 

if mitigating circumstances are present, “the court must . . . 

evaluate the overall circumstances of the robbery to determine 

whether a reasonable teller in that particular scenario would 

have perceived a threat of death.” United States v. Wooten, 689 

F.3d 570 (6th Cir. 2012); see also Jennings, 439 F.3d at 611; 

Gibson, 155 F.3d at 847. 

Powell maintains that the district court should have 

conducted an analysis of the totality of the circumstances in 

his case and that, had it done so, it would have found the 

enhancement inapplicable. He contends that the government 

failed to bear its burden of proving facts to support the 

enhancement because it failed to prove that mitigating 

circumstances were not present. However, at sentencing, Powell 
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himself argued to the court that, in the particular 

circumstances of his case, the enhancement did not apply because 

the bank teller could see that he was not going to harm anyone, 

did not have a weapon, and made no threatening gestures. In 

this appeal, Powell does not identify any mitigating 

circumstances other than those already presented in the district 

court. Powell argues that the burden of proving the 

enhancement’s applicability cannot be shifted to the defendant. 

However, a similar argument that Application Note 3 to USSG 

§ 2D1.1 improperly shifts the burden of proof to the defendant 

to show that the possessed weapon was not connected to the 

offense has been rejected by this court and by other circuits. 

See, e.g., United States v. Holmes, 81 F. App’x 467, 469-70 (4th 

Cir. 2003) (No. 03-4306); United States v. Fudge, 325 F.3d 910, 

922 (7th Cir. 2003) (rejecting claim of improper burden shifting 

in USSG § 2D1.1(b)(1)); United States v. Restrepo, 884 F.2d 

1294, 1296 (9th Cir. 1989) (“The Due Process Clause does not 

require that the government prove the absence of every possible 

exception or mitigating circumstance”); United States v. McGhee, 

882 F.2d 1095, 1097-99 (6th Cir. 1989) (same). 

Powell also argues that the threat of death 

enhancement requires more than intimidation, to which he admits, 

because otherwise it would always be applicable where the crime 

is robbery by intimidation under 18 U.S.C. § 2113(a). This 
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argument fails because a robbery by force or intimidation can be 

committed without threats of death. Jennings, 439 F.3d at 612-

13. The same is true in this case.

We therefore affirm the district court’s judgment. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

AFFIRMED