UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4365

BOBBY GRAVES RIGGLEMAN, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

James H. Michael, Jr., Senior District Judge.

(CR-97-1)

Submitted: January 27, 1998

Decided: February 17, 1998

Before HALL and ERVIN, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

J. Lloyd Snook, III, SNOOK & HAUGHEY, P.C., Charlottesville,

Virginia, for Appellant. Robert P. Crouch, Jr., United States Attorney,

Nancy S. Healey, Assistant United States Attorney, Charlottesville,

Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Bobby Graves Riggleman, Jr., appeals the thirty-eight month sentence he received after he pled guilty to bank robbery, see 18

U.S.C.A. § 2113(a) (West Supp. 1997). He contends that the district

court erred in finding that he made an express threat of death during

the robbery and enhancing his sentence accordingly. See U.S. Sentencing Guidelines Manual § 2B3.1(b)(2)(F) (1995).* We affirm.

Riggleman gave a note to the bank teller which read,"Give me all

your money." He said nothing to her. However, he kept his right hand

in the pocket of his sweatshirt, and it appeared to the teller that he had

a gun which was pointed at her. When she hesitated, Riggleman

moved his concealed hand several times in a way which she perceived

as threatening. The teller gave Riggleman $3775 in cash and he left

the bank. Because snow had recently fallen, the police were able to

follow Riggleman's footprints to his house nearby and arrest him

almost immediately. No weapon was found.

A express threat of death may be made in "an oral or written statement, act, gesture, or combination thereof." USSG§ 2B3.1, comment.

(n.6). The enhancement is intended for "conduct that would instill in

a reasonable person, who is a victim of the offense, significantly

greater fear than that necessary to constitute an element of the offense

of robbery." Id. The circuits have split over how explicit the threat

must be. The Eleventh and Sixth Circuits take a restrictive view. See

United States v. Alexander, 88 F.3d 427, 428-31 (6th Cir. 1996);

United States v. Canzater, 994 F.2d 773, 775 (11th Cir. 1993). The

majority of circuits which have addressed the issue, however, have

taken a more expansive view. See United States v. Figueroa, 105 F.3d

874, 877-79 (3d Cir. 1997); United States v. Robinson, 86 F.3d 1197,

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*Riggleman was sentenced in April 1997.

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1200 (D.C. Cir. 1996); United States v. France , 57 F.3d 865, 867 (9th

Cir. 1995); United States v. Hunn, 24 F.3d 994, 997 & n.5 (7th Cir.

1994); United States v. Lambert, 995 F.2d 1006, 1008 (10th Cir.

1993); United States v. Smith, 973 F.2d 1374, 1378 (8th Cir. 1992).

Following the majority, this court held in United States v. Murray, 65

F.3d 1161, 1166-67 (4th Cir. 1995), that a demand for money coupled

with a statement that a gun is pointed at the teller is a threat to shoot

the teller, and that "a threat to shoot a firearm at a person during a

robbery, created by 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 under§ 2B3.1(b)(2)(F)," even

if the robber does not have a weapon. Murray, 65 F.3d at 1167. Also

in Murray, this court quoted with approval the language in Hunn that

"pointing one's hand, hidden in a coat so as to imitate the presence

of a handgun aimed at another, is well within the plain text of

§ 2B3.1(b)(2)(F) and its accompanying commentary." Id. This case is

governed by Murray. Consequently, we find that the district court did

not err in finding that Riggleman made an express threat of death.

We therefore affirm the sentence imposed. 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

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