*

 The Honorable Arthur L. Alarcón, Senior Circuit Judge, United States

Court of Appeals for the Ninth Circuit, sitting by designation.

FILED

United States Court of Appeals

Tenth Circuit

April 12, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 09-1140

MICHAEL JASON MARTINEZ,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. NO. 08-CR-76-REB)

J. Michael Dowling, Law Office of J. Michael Dowling, Denver, Colorado for

Appellant.

James C. Murphy, Assistant United States Attorney (David M. Gaouette, United

States Attorney, with him on the brief) Office of the United States Attorney,

Denver, Colorado for Appellee.

Before TYMKOVICH, ALARCÓN*

, and EBEL, Circuit Judges.

TYMKOVICH, Circuit Judge.
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Michael Jason Martinez pleaded guilty to four bank robberies, and the

district court sentenced him to 120 months imprisonment for each crime, with the

sentences to run concurrently. Martinez appeals his sentence, arguing 1) the

district court erred in holding he could not collaterally attack the jurisdictional

basis of a prior state court conviction used to classify him as a career offender

under United States Sentencing Guidelines (USSG) § 4B1.1; 2) the district court

clearly erred in finding Martinez made a threat of death during the bank

robberies; and 3) his sentence is substantively unreasonable.

After Martinez filed this appeal, the state court vacated his prior

conviction, mooting the career offender claim. The parties agree that Martinez is

entitled to resentencing because of this development. As to the threat of death

enhancement, we conclude the district court did not err in finding Martinez made

a threat of death during the bank robberies. 

Accordingly, we AFFIRM the district court’s decision to enhance

Martinez’s sentence because of the threat of death but REMAND for resentencing

in light of the state court vacating Martinez’s prior conviction. Because the

district court will resentence Martinez, we do not address the substantive

reasonableness of his sentence. 

I. Background

Martinez pleaded guilty to four counts of bank robbery in violation of 18

U.S.C. §§ 2, 2113(a). The initial presentence report suggested an offense level of
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28 and included a 2-level enhancement for making a threat of death during the

bank robberies. Martinez had eight criminal history points, which would have

placed him in criminal category IV, but because the district court determined he

was a career offender, based on the prior state court conviction, it placed him in

category VI. Pursuant to the career offender enhancement, Martinez’s adjusted

offense level was 32. The district court then subtracted 3 levels for acceptance of

responsibility, giving Martinez a total offense level of 29. 

The district court granted the government’s motion under USSG § 5K1.1 to

depart downward by 25 percent because of Martinez’s substantial assistance to

the government in investigating other robberies. This downward departure

yielded an advisory guidelines range of 113 to 141 months. After weighing the

factors enumerated in 18 U.S.C. § 3553, the district court sentenced Martinez to

120 months imprisonment on each of the four counts of conviction, with the

sentences to run concurrently. 

II. Discussion

Martinez challenges two enhancements to his sentence—the career offender

provision, and the threat of death enhancement. He also challenges the substantive

reasonableness of his sentence.

A. Career Offender Status and Substantive Reasonableness

Initially, Martinez argued the district court erred in holding he could not

collaterally attack a prior state court conviction used to classify him as a career
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offender under USSG § 4B1.1. After oral argument, the state court vacated the

state court conviction which was the basis for the career offender enhancement. 

Without the predicate offense necessary for career offender status, Martinez filed

an unopposed Motion for Limited Remand for Resentencing. We agree the

district court will need to resentence Martinez in light of the state court vacating

his state conviction. 

Because we will remand for resentencing, we need not address the

substantive reasonableness of Martinez’s previous sentence.

B. The Threat of Death Enhancement

Martinez’s remaining contention is that the district court erred in finding he

issued a threat of death during the robberies, resulting in a two-level enhancement

of his offense level. USSG § 2B3.1(b)(2)(F). Because we will remand for

resentencing, where this issue will again be before the district court, we address

his arguments here. We disagree with Martinez. 

“In evaluating the application of a Guidelines enhancement, we review

factual findings for clear error, but to the extent the defendant asks us to interpret

the Guidelines or hold that the facts found by the district court are insufficient as

a matter of law to warrant an enhancement, we must conduct a de novo review.” 

United States v. Hamilton, 587 F.3d 1199, 1222 (10th Cir. 2009) (quotations

omitted). In this case, we are required to determine whether the facts found by
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the district court are sufficient to warrant the enhancement, and thus review the

court’s decision de novo. 

The comments to § 2B3.1 define a “threat of death” 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

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.

USSG § 2B3.1, cmt. n.6 (emphasis added). 

The district court did not err in finding Martinez used a threat of death, as

Section 2B3.1 defines that term. In each of the robberies, Martinez and his codefendants ran into the bank, jumped over the teller counter, and demanded that

employees and customers get on the floor. In one robbery in particular, Martinez

jumped on the teller’s countertop and ordered bank patrons to “[g]et on the

[f***ing] ground.” R., Vol. 1, Doc. 50 at 10. At this command, one of the

customers froze in fear, and did not comply. Martinez’s co-defendant came up

beside the customer and thrust something hard into the side of her stomach and
** In another robbery, the co-defendant told the victims, “get down and

nobody gets hurt.” Id. at 6.

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ordered her again to get down. The victim told investigators that she believed the

robber had a gun.** 

The co-defendant’s actions are attributable to Martinez pursuant to USSG

§ 1B1.3(a)(1). In addition, “[w]e must consider the . . . threat as a whole and not

as unconnected individual statements.” United States v. Hogan, 116 F.3d 442, 445

(10th Cir. 1997). Martinez’s statement, in combination with the co-defendant’s

actions, could “instill in a reasonable person, who is a victim of the offense, a fear

of death.” § 2B3.1, cmt. n.6; see United States v. Arevalo, 242 F.3d 925, 927

(10th Cir. 2001) (“[T]he proper focus [in the threat of death inquiry] is on the

perspective of the reasonable teller.”) (quotations omitted). During a bank

robbery, a reasonable victim aggressively ordered to lie down, with a hard object

thrust into his or her side for noncompliance, would experience a fear of death. A

reasonable victim would conclude the robber had a weapon. 

Other circuits have uniformly held that threatening language or conduct

coupled with a perception that the threat could be consummated suffices under

§ 2B3.1. For instance, stating “I have a gun” constitutes a threat of death, even if

the defendant does not show the gun. See, e.g., United States v. Jennings, 439

F.3d 604, 610–11 (9th Cir. 2006) (holding that the threat of death enhancement

can apply to a defendant who announces he or she has a gun but does not show it
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and does not threaten to use it); United States v. Murphy, 306 F.3d 1087, 1089

(11th Cir. 2002) (holding the words “I have a gun” qualify as a threat of death

even if the defendant is unarmed); United States v. Winbush, 296 F.3d 442, 443

(6th Cir. 2002) (holding that presenting a note to a teller that states “I have a gun”

is a threat of death even if the defendant did not exhibit the gun); United States v.

Jennette, 295 F.3d 290, 292 (2d Cir. 2002) (concluding that an unarmed

defendant’s claiming to have a gun constitutes a threat of death). Likewise, the

language and conduct in the bank robberies here suffices—aggressive language

coupled with the suggestion of a weapon the victim believed to be a gun. Indeed,

the only purpose for the conduct coupled with the command is to force the victim,

through fear of a deadly weapon, to capitulate. 

We thus conclude that Martinez’s statements and behavior, combined with

his co-defendant’s actions, constitute a threat of death for purposes of the § 2B3.1

enhancement. 

III. Conclusion

 We AFFIRM the district court’s conclusion that Martinez issued a threat of

death during the commission of the robberies and thus earned an enhancement. 

We GRANT Martinez’s unopposed motion for resentencing and REMAND in light

of the state court vacating his prior conviction.