NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0485n.06
No. 11-1674
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. SEAN L AMONTE L I

NDSAY, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COU R T FOR THE EASTERN DI STRI CT OF MI CHI GAN

BEF ORE: BOG GS and GRI FF I N, Circuit J udg es; and B ARZ I L AY, Judge. *
GRI FF I N, Circuit J udg e. Def endant Sea

n L indsay pled g uilty to one count of bank robber y and incidental crimes, in violation of 18 U.S.C. § 2113(a)

. Although his Rule 11 plea ag ree ment anticipated a sentenc ing
g uideline rang e of 57 to 71 months of imprisonment, the di s t rict court applied the two-leve l enhanc ement for threa ts of death pursuant t o U.S.S.G. § 2B3.1( b)(2) (F ) and sentenc ed L indsay to 77 months in prison, within the adj u s t ed g uidelines rang e of 77 to 96 months’ incar cer ation. On
appea l, L indsay challeng es his sentenc e, arguing that the fac ts did not war rant the enhanc ement and that his sentence is substantively unrea sonable. We disag ree and af firm.

The Honora

ble J udit h M

. B a r zi la y , Senior J udg e, United States Court of I nterna tional Trade , * sitti ng by desig nation.No. 11-1674

United States v. Lindsay

I

. The fac ts a

re not in dispute and are acc urate ly set forth in the Presentenc e Report (“PSR”):
On May 6, 2010, [L indsay ] enter ed a Chase Ba nk in Be lleville, Mic h i gan . [ He] approa ched [t he] teller counter , prese nted his driver’ s license, and attempted to cash a fr au d u lent persona l chec k written on the acc ount of his g irlfriend. The teller rec og nized [L indsay ] as he h ad p re v iously cashe d chec ks at the bank, and also attempted to cash a chec k draw n on the same acc ount on April 14, 2010. That chec k wa s fra udulent and was denied. Due to this previous event, the teller as k ed a manag er to contac t the acc ount holder, [ L i ndsay ’s] g irlfriend, to verify the chec k. The g irlfriend advised the m an ager to have [L indsay ] arr ested. During this time, [L indsay ] made a call on his cellular phone and indicated his gi rl fr iend was on the line. [L indsa y ] b ec am e ang ry and repor tedly y elled into the phone “Well, just tell them no.” [L indsay ] then walked awa y from the counter , leaving his driver[’s] license and the fra udulent chec k. At that time he appr oache d a per sonal banke r who was counting out money for a cu s t o m er closing an acc ount. When the banker counted out $1,000.00, [L indsay ] demande d the money . The banker ori gi n al ly did not think [L indsay ] was serious and did not honor his demand. [L indsay ] then said “Give me that money , I have a bomb and my partne r’s get t i n g money from the tellers.” [L indsay ] also repor

tedly lifted his shirt and showed what appea red to the banker to be a cloth strap with a plastic buckle fastene d around his waist. [ L i n d s ay ] then g rabbe d $1,000.00 from the banker ’s hand, tear ing one of the bills in the proce ss, and fled fr om the bank on foot.
L indsay was arr ested four day s later and char g ed with one count of bank robber y and incidental crimes, in violation of 18 U.S.C. § 2113(a)

. On J anuar y 4, 2011 , h e p l ed gu ilty to the char g e pursuant to a written Rule 11 plea ag ree ment. The plea ag ree ment included a rec ommended
g uideline rang e of 57 to 71 months, based upon an anticipated offe nse level of 19 and a criminal history cate g ory of V. The ag ree ment further provided, howeve r, that “[i] f the Court finds

. . . that [L indsay ’s] c riminal history cate g ory is highe r than ref lected on the attache d workshee ts

. . . and if
any such findingresults in a g uideline rang e highe r than 57-71 months, the hig her guideline ra ng e - 2 -No. 11-1674

United States v. Lindsay

become s the rang e rec ommended by [t he parties].” The parties stipulated in the plea ag ree ment to the applica tion of the bank robbe ry g uidelines in U.S.S.G. § 2B3.1. The g uideline calc ulations set forth in the plea a g ree ment and the PSR were not the same. The probation depar

tment calc ulat ed an o ffe nse l evel of 21 and a criminal hi story cate g ory of VI , resulting in a

n advisory g uideline rang e of 77 to 96 months. The differ ence was attributable to the probation depa

rtment’s application – ove r L indsay ’s objection – of a two-leve l enhanc ement for a “thre at of death” under § 2B3.1( b)(2) (F ), which incre ased the offe nse l ev el b y two, and the assig nment of a highe r criminal history cate g ory due to a conviction not listed in the plea ag ree ment. At the sentenc ing hear ing h el d o n May 10, 2011, the district court overr uled L indsay ’s objections to the scoring in the PSR a n d a d opted the probation depar tment’s sentenc ing calc ulations. Specifica lly , the di strict court determined that L indsay made a “thre at of death” during the course of the bank robber

y , and, there fore , the corr esponding two-leve l enhanc ement was appropr iate. The
court sentenc ed L indsay to 77 months of imprisonment, at the bottom of the adjusted g uideline rang e of 77 to 96 months. L indsay timely appea ls his sentence.

I I

. Guideline § 2B 3.1(b)( 2)(F ) provides f or a two- level enha

nceme nt “if a thre at of de ath was made” during a robber

y . L indsay argues t h at t h i s enhanc ement is not justified in the prese nt circ umstances, in which he told the banker , “Give me that money , I have a bomb and my partne r’s
g etting money from the tellers,” and then lifted his shirt to display a cloth strap with a plastic buckle fastene d around his waist. He contends that “it is an absurdity to sug g est that [hi s] display of a ‘strap

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United States v. Lindsay

with a buckle’ could cre dibly equate with a ‘bomb’ and ‘instill a fea r of death’ as the district c ourt

rea soned.” Acc ording to L indsay , neither the victim nor a rea son able person could have believed that L indsay

made a threa t of dea th. We disagr ee. “Whether undisputed fac ts war rant a sentenc e enhanc ement is a leg al conclusion subject to de novo revie w.” United States v. Moore , 447 F. App’x 721, 723 (6th Cir. 2012). Application Note
6 acc ompany ing § 2B 3.1 explains:
“A threa t 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 there of. Acc ording ly , the defe ndant d o es not have to state expressly his intent to kill the victim in o rd er fo r t h e enhanc ement to apply

. For example, an oral or written demand using words such as “Give me the money or I will kill y ou”, “Give me the money or I will pull the pin on the gre nade I have in my

pocket” , “Give me the m oney or I will shoot y ou”, “Give me y our money o r el s e (whe re the defe ndant draw s his hand acr oss his throat in a slashing motion)”, or “Give me the money or y ou are dead” would constitute a threa t of death. The court should consider that the intent of this provision is to provide an incre ased offe nse l evel for case s in which the offe nder( s) eng ag ed in conduct that would instil l in a rea sonable person, who is a victim of the offe nse, a fea r of death. “The fac t that [L indsay ] was not actua lly arme d is withou t co n s eq u en ce. I t is the bank employ ee’ s rea s o nable belief about the conseque nces of failing to comply with the robber ’s demands that matters.” Moore , 447 F. App’x at 723 (citing United States v. W inbush , 296 F.3d 442, 443 (6th Cir. 2002)). “A bank employ ee may rea sonably believe the threa t to be g enuine, even if the robber does not brandish a

wea pon.” Id

. L i n dsay ’s actions clea

rly constitute a “thre at of death” within the meaning of § 2B3.1( b)(2) (F ) an d o u r prec edents addre ssing this issue. See , e.g., Moore , 447 F. App’x at 723 (holding that the threa t-of-de ath enhanc ement was war rante d wher e the defe ndant passed the bank

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United States v. Lindsay

teller a written note which rea d, “I have a g un. Give me the cash[,]” even though the defe ndant was
not actua lly arme d); United States v. Sogan , 388 F. App’x 521, 522 (6th Cir. 2010) (pe r curiam) (af firming the enhanc ement wher e, althoug h the defe ndant did not display a wea pon, he “sug g estively place d his hand by h i s wa i s t” as he decla red, “I am only g oing to ask this once and once only

. . . Do y ou want to g o home t onight? I f y ou do, g ive m e y our m oney .”); W inbush , 296 F.3d at 443 (holdin g t h at t h e d ef endant’ s prese ntation of a note to the teller stating “THI S I S A
HOL D-UP I HAVE A GUN 100’ s 50’s and 20’s” was suff icient to “instill in any rea sonable bank teller a belief that a failure to comply with the robber ’s instructi o n s wo u l d result in being fata lly shot”); Uni t ed S t a t es v. C lark , 294 F.3d 791, 794-95 (6th Cir. 2002) (affirming application of the enhanc ement wher e the defe ndant did not display a wea pon but p re s en t ed the teller with a note which rea d “I have a g un. Do what y ou are told and y ou wont [si c] g et hurt.”) ; United States v. W illis , 48 F. App’x 542, 543 (6th Cir. 2002) (upholding threa t-of-de at h en h an ceme nt wher e the defe ndant hande d the t eller a note s tating, “Ther e is a g un pointed at y our hea d. Put the money in the bag. 20 minutes afte r I ’m g one the g uy with the gun wil l also leave

. Try any thing funny , y ou will be shot.”); United States v. Lan d rum , 10 F. App’x 244, 246 (6th Cir. 2001) (finding enhanc ement to be appropr iate wher e the defe ndant told the teller he had a bomb and prese nted her with a handwr itten note stating “I ’m car rying 10 pounds of explos ives in this bag

. Give me all y our
money in y our dra

wer or we all DIE .”).
Her e, as in these case s, “the implication is clea r: follow my direc tion or fac e phy sically g rave
conseque nces.” Sogan , 388 F. App’x at 524. L indsay ’s threa tening statement alone was sufficie nt

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United States v. Lindsay

to “instill in a rea sonable person, who is a victim of the offe nse, a fea r of death.” U.S.S.G. § 2B3.1,
cmt. n.6. We there fore hold that the district court did not err in apply ing the two-leve l enhanc ement for making a thre at of de ath.
I I I

. L indsay also challeng es the substantive rea sonablene ss of his within-g uidelines sentenc e of
77 months of imprisonment. Howeve r, “issues adver ted to in a perf

unctory manner , unacc ompanied by some eff

ort at develope d argumentation, are deeme d waived.” United States v. W inkle , 477 F.3d 407, 421 (6th Cir. 2007) (interna l quotation marks omitted). As was the case in W inkle , “[i] t would be g ener ous to say

that [L indsay ] has even adver ted to the rea sonablene ss of his se ntence , and any claim re lated to re asonable ness is thus waived.” Id

. I V. The judg ment of the district cour t is affirmed.

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