PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 16

- 3485

_____________

UNITED STATES OF AMERICA

v.

JEROME WILSON

,

Appellant

_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania (D.C. No. 2

- 15

- c r

- 00049

- 001 ) District Judge: Hon. Anita B. Brody

_______________
Argued
November 7 , 2017

Before: JORDAN, HARDIMAN, SCIRICA

, Circuit Judges

(Filed : January 17, 2018 )

______ _________2 Eric A. Boden Robert A. Zauzmer [ARGUED] Office of United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106

Counsel for Appell ee

Christy Martin [ARGUED] Rossman D. Thompson, Jr. Federal Community Defender Officer for the Eastern District of Pennsylvania
601 Walnut Street The Curtis Center, Suite 540 West Philadelphia, PA 19106

Counsel for Appellant

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge

If it were so mehow in doubt before, we take the opportunity now to hold that bank robbery by intimidation is categorically a “ crime of viol ence ” under the Unit ed States Sentencing Guidelines. In doing so, we join several other
federal courts of appeals that have held the same under the

g uidelines or the Armed Career Criminal Act (“ ACCA ”)

.3 Jerome Wilson pled guilty to unarmed bank ro bbery in
violation of 18 U.S.C. § 2113(a). The District Court imposed a prison sentence that w as in part a result of th e g uidelines’

ca reer

- offender enhancement, U.S.S.G. § 4B1.2

, which, in Wilson’s case, was applicable if bank robbery by intimidation
counts as a crime of violence. T he District Court correctly

ap plied that enhancement

, and it was not plain error that the
Court also appl i ed an enhancement for making a death threat

. W e will therefore affirm the sentencing order.

I. B ACKGROUND

The facts of th e case are not in dispute. Wilson pled guilty to three counts of unarmed bank robbery or attempted bank robbery in violation of 18 U.S.C. § 2113(a), and t he
District Court sentenced him to 151 months ’ imprisonment,
three years of supervised released

, restitution of $3,122 , and a special assessment of $300 . The sentence was based in part

on two enhancements : one for being a career of fender

, U.S.S.G. § 4B1.2, a nd the other for making a death threat,
U.S.S.G. § 2B3.1(b)(2)(F). Of the three c rimes

, two were completed bank robberies by demand note and one was an attempted robbery by demand note. In one of the completed robberies, the no te Wilson passed to the bank teller said , “this is a hold up, empty your drawers now, or else.” (App. at 37.)

T he presentence report (“PSR”) suggested that § 2113(a) be treated as a “crime of violence ” under the

g uidelines, and

, because Wilson had two pr ior convictions
under that same statute

, that he be classified a s a “career
offender.” If followed, those suggestions increased Wilson’s
total offense level from 27 to 32 and his criminal history
category from IV to VI. The PSR credited Wilson with a 3

-4 l evel downward adjustment of his offense level for acceptance of responsibility, making his total suggested
offense level 29. Ultimately, the threat

- of

- death enhancement did not increase the total offense level beyond that which was
mandated by the career

- offender enhancement ; t hat is, even
without the threat

- of

- death enhancement, Wilson ’s total offense level and criminal history category would have been
the same.

At sentencing, Wilson did not raise any objections concerning the 2

- le vel threat

- of

- death enh ancement, but he
did object to being treated as a “career offender” u nder the

g uidelines, arguing that § 2113(a) did not meet the guidelines’ definition of a “crime of violence.” The District Court overruled that objection and ultim ately sentenced him

to the b ottom of the guidelines range calculated in the PSR.

II. Discussion 1

On appeal, Wilson challenges the District Court’s application of the career

- offender enhancement and the
threat

- of

- death enhancement to his sentence

. We conclude
that the Di strict Cou rt correctly applied the career

- offender enhancement because bank robbery by intimidation is categorically a crime of violence under § 4B1.2(a) of the guidelines . We further conclude that the District Court’s application of the threat

- of

- death e nhancement was not plain

error

.

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.5 A. Bank Robbery by Intimidation is Categorically a Crime of Violence Under the
Guidelines.

W hether bank robbery by intimidation is a crime of
violence is a strange but not new question

. It is strange because to ask the qu estion would seem to answer it

– of course the threat of violence is inherent in bank robbery, and § 4B1.2(a)(1) of the guidelines specifically includes with in the definition of a “crime of violence” “any offense under
federal or state law ... that

... has as an element the ... threatened use of physical force agains t the person of another
... .” It is not a new question, though, because s even of our
sister circuits have had to address this question and have concluded that bank robbery by intimidation does indeed qualif y as a “crim e of violence” under § 4B1.2(a)(1) or the nearly identically worded “ elements” clause of the ACCA , 18 U.S.C. § 924(c)(3)(A)

. 2 See United States v. Hopkins , 577

2 Like § 4B1.2(a), the ACCA is divided into an “elements” clause, which defines “crime of violence” broadly
to include federal or state law offenses that involve the use or threatened use of force, and an “enumerated offenses” clause, which lists certain specific offenses that are to be considered crimes of violence. Robbery is among the enumerated
offe nses, but we have chosen to address the crime at issue
here

– 18 U.S.C. § 2113(a)

– under the elements clause of § 4B1.2(a). Many courts of appeals have concluded that bank robbery under § 2113(a) is categorically a crime of violence.
See United States v . Harper , 869 F.3d 624, 626

- 27 (8th Cir. 2017) (holding “bank robbery by intimidation under § 2113(a) is a crime of violence under ... [the guidelines],6 F.3d 507, 511 (3d Cir. 2009) ( “[ Because ] the definition of a
‘violent felony’ under the ACCA is sufficiently similar to the definition of a ‘crime of violence’ under the Sentencing
Guidelines [

, ] ... authority interpreting one is generally applied to the other[.]” (footnote omitted) ). Wilson argues that

, because a defendant can be convicted of violating § 2113(a) without specifically intending to intimidate anyone, bank robbery cannot categorically be called a crime of violence. For the reasons that follow, that argument fails

.

1

. T he Categorical Approach Applies to
Determ ine Whether Bank Robbery b y Intimidation is a “Crime of Violence”
U nder the Guidelines.

We exercise plenary review over a district court’s
decision that a conviction is one for a crime of violence , as defined by the g uidelines

, United States v. Brown , 7 65 F.3d

because it involves a threatened use of force”); United States

v. Ellison , 866 F.3d 32, 39

- 40 (1st Cir. 2017) (same); United States v. Campbell , 865 F.3d 853, 854 (7th Cir. 2017) (same);
United States v. Brewer , 848 F.3d 711, 716 (5th Cir. 2017) (same); In re Sams , 830 F.3d 1234, 1239 (11th Cir. 2016) (holding “bank robbery conviction under § 2113(a) by for ce and violence or by intimidation qualifies as a crime of violence under the [ACCA] use

- of

- force clause”); United
States v. McBride , 826 F.3d 293, 296 (6th Cir. 2016) (concluding “[a] taking by intimidation under § 2113(a) ... involves the threat to use p hysical force” under the guidelines); United States v. McNeal , 818 F.3d 141, 157 (4th Cir. 2016) (holding “bank robbery under ... § 2113(a) is a ‘crime of violence’ within the meaning of ... [the ACCA]”).7 185, 188 (3d Cir. 2014), and w e use the categorical approach

to determine wheth er a conviction so qualifies

, United States v. Chapman , 866 F.3d 129, 133 (3d Cir. 2017). That approach requires us to compare the elements of the statute
under which the defendant was convicted to the g uidelines ’
definition of “ crime of violence. ” Id. at 133

- 34. A
conviction under § 2113(a) can be a crime of violence only if

“ ‘ the least of th [ e ] acts ’ criminalized” is sufficient to meet the

g uidelines’ definition of a c rime of violence

. Moncrieffe v.
Holder

, 569 U.S. 184 , 1 91 ( 2013 ) (alteration in original) ( quoting Johnson v. United States , 559 U.S. 133, 137 (2010) ) ; see also United States v. Dahl , 833 F.3d 345, 350 (3d Cir. 2016) (determining “the least culpable condu ct hypothetically necessary to sustain a conviction under the statute” (citation omitted) )

.

Here, Wilson was convicted under the first paragraph of § 2113(a), 3 which states:

3 The District Court determined that § 2113(a) was a divisible statute because it contained two paragraphs, each containing a separate version of the crime. S ee Descamps v.
United States , 133 S. Ct. 2276, 2284 (2013) (explaining that a statute is “divisible” when it “comprises multiple, alternative
versio ns of the crime”)

. Having determined that § 2113(a) was divisible, the District Court applied the modified categorical approach to determine that Wilson was convicted
under § 2113(a)’s first paragraph. S ee id. at 2283

- 84 (instructing courts to apply the “modified categorical approach” to divisible statutes)

. The parties do not dispute those rulings. Accordingly, we proceed straight to the categorical approach, which applies once a court has focused on the relevant statutory provision. Id. at 2285; Brow n , 7658 Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association ... Shall be fined ... or imprisoned not more than twenty years, or
both.

18 U.S.C. § 2113(a). T he least culpable conduct covered by
that statute is unarmed bank robbery by intimidation. See
United States v. Brewer , 848 F.3d 711, 715 (5th Cir. 2017) ( concluding that the least culpable conduct under § 2113(a) is “robbery by intimidation” )

. Thus, we must compare the elements of bank robbery by intimidation to the g uidelines’
de finition of “ crime of violence. ” Chapman , 866 F.3d at 133

- 3 4.

As noted earlier, supra n.2, g uideline s § 4B1.2 defines
“crime of viole nce” for purposes of the career

- offender
enhancement as:

(a) ... any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that

—

F.3d at 188

- 90. All references to “ § 2113(a) ” throughout this opinion refer only to the first paragraph of § 2113(a)

.9 (1) h as a s an element the use, attempted use, or threatened use of physical force against the person of another , or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful

pos session of a firearm described in 26 U.S.C. § 5845(a) or explosive material a s defined in 18 U.S.C. § 841(c).

U.S.S.G. § 4B1.2(a). We refer to § 4B1.2(a)(1) as the “elements,” or “force,” clause and to § 4B1.2(a)(2) as the
“enumerated offenses” clause. T o determine whether
Wilson’s conviction categorically qualifies as a “ crime of
violence ” under the “ e lement s ” clause, we ask whether bank robbery by intimidation has as an element of the offense “the use, attempted use, or threatened use of physical force against
the person of another[.]” U.S.S.G. § 4B1.2(a) (1)

.

2

. Section 2113(a) Has as an Element of
the Offense “The Use, Attempted Use, or Threatened Use of Physical Force.”

U narmed bank robbery by intimidation clearly does
involve the “threatened use o f physical forc e against the person of another [

. ] ” U.S.S.G. § 4B1.2(a) (1). If a common

sense understanding of the word “intimidation” were not enough to prove that

, 4 o ur precedent establishes that

4 The word “intimidate” is defined in the dictionary as
“to make

... fearful” or “to compel or deter by or as if by10 § 2113(a) ’s prohibition on taking the “property or money or any other thing of value” either “by force and violence, or by
intimidation” has as an element the “ threat of force. ” United
States v. Askari , 140 F.3d 536, 541 (3d Cir. 1998) (en banc) ( quotation marks and citation omitted), vacated on other grounds

, 159 F.3d 774 (3d Cir. 1998); see also id. (“As used
in § 2113(a), the term ‘intimidation’ means ‘to make fearful or put into fear.’” (citation omitted)). Whether the theft of money from a bank involved i ntimidation is determined under
an ob jective standar d and from the victim’s perspective, “ i.e.

, whether an ordinary person in the [ bank] teller’s position reasonably could infer a threat of bodily harm from the
defendant’s acts.” Id. ( quotation marks and citation omitted ).

Each of our sister circuits to h ave addressed the issue
has , not surprisingly, concluded that robbing a bank by
intimidation does involve the “the use, attempted use, or threatened use of physical force against the person of
another [

. ] ” U.S.S.G. § 4B1.2(a)(1). Those courts also define § 2113(a)’s “intimidation” requirement in terms of a “threat of physical force

, ” when interpreting the “ e lement s ” clause in the g uidelines or the similarly worded “ elements ” clause of
the ACCA

. 5 Our conclusion is the same. 6

threats,” Inti midate , Merriam

- Webster Dictionary, https://www.merriam

- webster.com/dictionary/intimidate (last visited Dec. 4, 2017)

.

5 See, e.g.

, Harper , 869 F.3d at 626 (“Intimidation
means the thre at of force.” ); Ellison , 866 F.3d at 37 (“[P]roving ‘intimidation’ unde r § 2113(a) requires proving
that a t hreat of bodily harm was made. ”); Campbell , 865 F.3d at 856 (“[I]ntimidation in § 2113(a) means the threat of force.”); Brewer , 848 F.3d at 715 (“The kind of ‘intimidation’11 that suffices to put a victim in fear of bodi ly injury during the course of a bank robbery, and which would in turn allow a defendant to complete such a robbery, is the very sort of threat of immediate, destructive, and violent force required to satisfy the ‘crime of violence’ definition.”); In re Sa ms , 830 F.3d at 1239 (quoting and adopting reasoning from United
States v. McNeal , 818 F.3d 141, that “[b]ank robbery under § 2113(a)

, ‘ by intimidation ,’ requires the threatened use of physical force”); McBride , 826 F.3d at 296 (defining
intimidation as “c onduct and words ... calculated to create the impression that any resistance or def iance ... would be met by
force ”); McNeal , 818 F.3d at 15 3 (“Bank robbery under § 2113(a), ‘by intimidation,’ requires the threatened use of physical force.”).

6 In his o pe ning brief, Wilson argues that § 2113(a) encompasses conduct that does not meet the Supreme Court’s definition of “physical force,” i.e. , “ violent force

— that is, force capable of causing physical pain or injury to another

person [

, ] ” Johnson , 559 U.S. at 14 0 , because one can be
convicted under § 2113(a) for threatening to expose another
to a hazardous substance. A t oral argument, however, Wilson
conceded that that position is untenable in light of our recent opinion in United States v. Chapman , 866 F.3d 129 , which

was published after Wilson fi led his opening brief. Because Chapman forecloses that argument, we do not further address
it here. See i d. at 133 (“[T]he ‘use’ of ‘physical force,’ as
used in § 4B1.2(a)(1), involves the intentional employment of

so mething capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body.”).12 3

. Section 2113(a) Requires Kno wing
Conduct.

Wilson argues that § 2113(a) is not categorically a crime of violence because one can be convicted under that

statute without intending to intimidate anyone

. More particularly, his argument proceeds as follows. First, he says correctly th at the “intimidation” element of § 2113(a) is

meas ured by an objective standard from the victim’s perspective, “ i.e. , whether an ordinary person in the [bank] teller’s position reasonably could infer a threat of bodily harm
from the defendant’s acts.” Aska ri , 140 F.3d at 541 ( quotation marks and citation omitted). Next, he contends t hat applying
that standard criminaliz es negligent behavior because a
defendant may act in a way that causes an ordinary teller to reasonably infer a threat of harm , even though the defendant
has no intent to cause such concern

. 7 He says, “A defendant may be convicted, for example, even if he acts on the sincere belief that a teller will comply with a demand for money

7 The proposition that a defendant can be convicted
under § 2113(a) without intending to intimidate is not without

supp ort in the case law

. See United States v. Kelley , 412 F.3d 1240, 1244 (11th Cir. 2005) (explainin g that a conviction
pursuant to § 2113(a) does not require the defendant “intend for an act to be intimidating”); United States v. Yockel , 320 F.3d 818, 824 ( 8th Cir. 2003) (hold ing the intimidation
element of § 2113(a) satisfied “if an ordinary person in [the teller’s] position reasonably could infer a threat of bodily
harm ... whether or not [the defendant] act ually intended the
intimidation ” (first alteratio n and emphasis in original) (quotation marks and citation omitted)).13 purely in reliance on bank policy, rather than out o f fear.” (Opening Br. at 12 .)

To bolster his argument, he turns to Elonis v. United
States , 135 S. Ct. 2001 (2015 ). In that case , the Supreme
Court reversed a defendant’s conviction for transmitting through interstate commerce threats to injure another person

, in violation of 18 U.S.C. § 875(c). 135 S. Ct. at 2012. That

statute contain ed no mens rea requirement. See i d. at 2008 (“An individual who ‘transmits in interstate or foreign

commerce any commu nication containing any threat ... to injure the person of another’ is guilty of a felony[.]” (quoting 18 U.S.C. § 875(c))). T he defendant appealed and argued
that the district court erred by refusing to instruct the jury
that , to be guilty, he had to have “intend ed ” his
communication to be a threat. Id. at 2007

. The district court
had instead instructed the jury to convict if it found that the defendant “intentionally ma[de] a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by” the intended recipient as a serious threat. Id. The Supreme Court highlighted the “reasonable person” language in the jury
instruction and concluded that using it had permit ted a “negligence stand ard” to be imported into that criminal

statute. Id. at 2 011

.

Wilson’s attempt to extend Elonis ’s reasoning to § 2113(a) is misguided . Th at case clarifies that courts should read a scienter requirement into statutes only to the extent necessary to prevent criminalizing otherwise innocent
conduct. Id. The S upreme Court determi ned that § 875(c) required the g overnment to prove a defendant intended his communication to be threatening because the only thing14 separating innocent conduct from wrongful conduct under that statute was “the threatening nature of the

c ommunication.” Id. In other words, the Court emphasized that “a defendant generally must know the facts that make his
conduct fit the definition of the offense [

. ] ” Id. at 2009 (quotation marks and citation omit ted). C onvicting a defendant solely on how a reasonable person perceived the relevant communication impermissibly risked creating criminal culpability for nothing more than a foolishly worded

message

. Id. at 2011. But , the Elonis Court’s reasoning is inapposite here because

, as recognized in Elo nis itself

, a statute criminaliz ing acts knowingly undertaken to deprive
someone of property has, by virtue of that “knowing ” element, a sufficient mens rea to avoid the risk of making
lawful conduct unlawful

. Id. at 2010 (citing Carter v. United
States

, 530 U.S. 255, 269 (2000) )

.

In Carter v. United States , the Supreme Court specifically held that “the presumption in favor of scienter demands only that we read subsection (a) [of § 2113] as requiring proof of general intent

— that is, that the defendant

po ssessed knowledge with respect to the actus reus of the crime (here, the taking of property of another by force and violence or intimidation).” 530 U.S. at 268. There was no reason to read a specific intent requirement into § 2113(a) because reading a ge neral intent requirement into the statute was sufficient to “separate wrongful from otherwise innocent
conduct.” Id. at 269. Carter thus stands for the proposition
that , because § 2113(a) is a statute requiring only gen eral intent, it is enough for the g overnment to prove that the
defendant t ook knowing action to rob a bank

.15 O ther courts of appeals have rejected the argument that § 2113(a) criminalizes negligent or reckless behavior. They
have harmonized Carter with the “reasonable teller” standard
inhe rent in § 2113(a)’s intimidation requirement by requir ing the government to prove a defendant “ kne w that his actions were objecti vely intimidating.” McNeal , 818 F.3d at 155

. 8 In short, Carter and Elonis are not at odds. By reading a general intent requi rement into § 2113(a), Carter requires the
government to prove that the defendant acted with the knowledge that those actions would result in the taking of property b y the use of force and violence or by intimidation.
Carter , 530 U.S. at 268. Using an ob jective standard to apply § 2113(a)’s intimidation requirement does not trigger the concerns raised by Elonis

, bec ause, to be guilty, t he defendant

must have knowingly ro bbed or attempted to rob a bank

– in other words, the defendant had to know he was tak ing money
from a financial institution that was not simply giv ing it away. This fact exposes the nonsense in Wilson’s claim that
a teller might “ comply with a [robber’s] demand for money

8 S ee also Harper , 869 F.3d at 626 (rejecting
contention that Elonis created a new global definition of “threat” requiring the government prove the same mens rea in
criminal statutes othe r than § 875(c)); Ellison , 866 F.3d at 39 (adopting the McNeal standard); Campbell , 865 F.3d at 856 (“Intimidation as an element of a bank robbery does not occur by negligent or accidental conduct. It is caused by an intentional threat of force.”); McBrid e , 826 F.3d at 296 (“The
defendant must at least know that his actions would create the impression in an ordinary person that resistance would be met by force. A taking by intimidation under § 2113(a) therefore involves the threat to use physical force.”)

.16 purely in reliance on bank policy [

. ] ” (Opening Br. at 12.) By
defi nition, § 2113(a) requires proof that a defendant knowingly engaged in an act that would cause an ordinary
bank teller to be intimidated and turn over money that the defendant knew he had no right to have. 9 Because a conviction under § 2113(a) requires th e government to prove a defendant knowing ly commit ted a bank robbery by force
and violence or intimidation

, it is quite obviously a crime of
violence under guideline s § 4B1.2 (a)(1)

.

9 Wils on maintains that every circuit court has misread
Carter

. As explained above, we do not agree with Wilson on that point. Nevertheless, we briefly note three hypotheticals that Wilson poses for his contention that § 2113(a) can be violated by neg ligent or reckless behavior: (1) a defendant
could rob a bank with no intent to intimidate based on a sincere belief that the bank teller would simply hand over money on demand based on a bank’s policy to comply with all demands for money, regardless of th e perc eived seriousness of the threat; (2) a drug addict might submit a demand note to a teller without caring whether or not his note resulted in a teller handing over money ; and (3) a bank robber
with a physically imposing presence could instill fear in a bank teller without intending to intimidate. In each of those examples, an individual is taking intentional action, i.e

. , attempting to rob a bank. Imposing an objective standard
with relation to the intimidation element does not change that
and does n ot turn § 2113(a) into a statute that cr iminalizes negligent behavior. Accordingly, the least culpable way of violating § 2113(a)’s first paragraph will always co nstitute a
“crime of violence.”17 W e thus join our sister circuits in holding that bank robbery by intimida tion , as set forth in § 2113(a), categorically qualifies as a crime of violence under § 4B1.2(a)’s “ e lement s ” clause

. 10 Since bank robbery by
intimidation is indeed a crime of violence, the District Court

was correct to appl y the career

- offender enhancemen t.

10 Because we conclude that bank robbery by
intimidation is c ategorically a “crime of violence” under the

“ elements ” clause, we do not analyze whether it also is a
“crime of violence” under the “ enumerated offense s” clause. U.S.S.G. § 4B1.2(a).18 B

. Applying the Threat

- of

- Death Enhancement
Was Not Plain Error

.

Wilson has also complained on appeal that the District Court wrongly subjected him to a sentencing enhancement for making a death threat. He did not, however, register that objection be fore the District Court. “ W e review a n unpreserved objection for plain error. ” Dahl , 833 F.3d at 349. A plain error has occurred when there i s “(1) [an] error, (2) that is plain or obvious, and (3) that affects a defendant’s substantial rights.” United States v. Goodson , 5 44 F.3d 529, 539 (3d Cir. 2008). “ If all three conditions are met, [we] may then exercise [our] discretion to notice a forfeited error, but only if

... the error seriously affect[s] the fairness, integrity, or public reputation of jud icial proceedings.” Id. ( citation omitted). In the context of sentencing, a defendant
establishes that an error affected his substantial rights by showing that the sentence imposed “ was affected, in the sense that it likely would have been different but for the error. ” United States v. Knight , 266 F.3d 203, 207 (3d Cir. 2001)

.

Here, Wilson cannot establish that the District Court committed plain error by apply ing the threat

- of

- death
enhancement because that enhancement did not affect his

sentence . Assu ming that Wilson could establish that application of the enhancement constituted an obvious error, he still cannot show that the error affected his substantial rights because the District Court correctly app lied the career

offender enhancement , and the thr eat

- of

- death enhancement
did not increase his sentence beyond th e sentence mandated19 by the career

- offender enhancement. 11 Thus, Wilson has not
shown plain error.

I II

. C ONCLUSION

For the foregoing reasons, we will affirm the sentence imposed by the Distr ict Court

.

11 Once the career

- offender enhancement is triggered,
the offense level determined by that guideline applies if it “is greater than the offense level otherwise applicable [

. ] ” U.S.S.G. § 4B1.1(b). The offense level mandated by the

career

- offender enhancement of § 4B1.1(b)(3) is 32, which is greater than 27, the “offense level otherwise applicable” with
the threat

- of

- death enhancement . Accordingly, the threat

- of

death enhancement would only increase Wilson’s sentenc e if
we were to hold the career

- offender enhancement inapplicable. Because we hold that the career

- offender
enha ncement applies, any error (if there were any) in applying the threat

- of

- death enhancemen t did not affect the
sentence Wilson received

.