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-cr-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 Appellee

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 somehow in doubt before, we take the 

opportunity now to hold that bank robbery by intimidation is

categorically a “crime of violence” under the United States 

Sentencing Guidelines. In doing so, we join several other 

federal courts of appeals that have held the same under the 

guidelines or the Armed Career Criminal Act (“ACCA”). 
3

Jerome Wilson pled guilty to unarmed bank robbery in 

violation of 18 U.S.C. § 2113(a). The District Court imposed 

a prison sentence that was in part a result of the guidelines’

career-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. The District Court correctly 

applied that enhancement, and it was not plain error that the 

Court also applied an enhancement for making a death threat. 

We will therefore affirm the sentencing order.

I. BACKGROUND

The facts of the 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 the 

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 offender,

U.S.S.G. § 4B1.2, and the other for making a death threat, 

U.S.S.G. § 2B3.1(b)(2)(F). Of the three crimes, two were

completed bank robberies by demand note and one was an

attempted robbery by demand note. In one of the completed 

robberies, the note Wilson passed to the bank teller said, “this 

is a hold up, empty your drawers now, or else.” (App. at 37.)

The presentence report (“PSR”) suggested that

§ 2113(a) be treated as a “crime of violence” under the 

guidelines, and, because Wilson had two prior convictions 

under that same statute, that he be classified as 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

level 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; that 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-level threat-of-death enhancement, but he 

did object to being treated as a “career offender” under the 

guidelines, arguing that § 2113(a) did not meet the

guidelines’ definition of a “crime of violence.” The District 

Court overruled that objection and ultimately sentenced him 

to the bottom of the guidelines range calculated in the PSR. 

 II. Discussion1

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 District Court 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 enhancement 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 Robberyby Intimidation is 

Categorically a Crime of Violence Under the 

Guidelines.

Whether bank robbery by intimidation is a crime of 

violence is a strange but not new question. It is strange 

because to ask the question 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 within 

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 against the person of another 

... .” It is not a new question, though, because seven of our 

sister circuits have had to address this question and have

concluded that bank robbery by intimidation does indeed 

qualify as a “crime 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 

offenses, 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. The Categorical Approach Applies to 

Determine Whether Bank Robbery by 

Intimidation is a “Crime of Violence”

Under 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 guidelines, United States v. Brown, 765 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 force 

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 physical 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 we use the categorical approach

to determine whether 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 guidelines’

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 

guidelines’ definition of a crime of violence. Moncrieffe v. 

Holder, 569 U.S. 184, 191 (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 conduct 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. See Descamps v. 

United States, 133 S. Ct. 2276, 2284 (2013) (explaining that a 

statute is “divisible” when it “comprises multiple, alternative 

versions 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. See 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; Brown, 765 
8

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). The 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 guidelines’ 

definition of “crime of violence.” Chapman, 866 F.3d at 133-

34.

As noted earlier, supra n.2, guidelines § 4B1.2 defines 

“crime of violence” 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) has as 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 

possession of a firearm described in 26 

U.S.C. § 5845(a) or explosive material as 

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. To determine whether 

Wilson’s conviction categorically qualifies as a “crime of 

violence” under the “elements” 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.”

Unarmed bank robbery by intimidation clearly does 

involve the “threatened use of physical force 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 our 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 by 
10

§ 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 intimidation is determined under

an objective standard 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 have 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 “elements” clause in 

the guidelines or the similarly worded “elements” clause of 

the ACCA.

5

 Our conclusion is the same.6

 

threats,” Intimidate, 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 threat of force.”); Ellison, 866 F.3d at 37 

(“[P]roving ‘intimidation’ under § 2113(a) requires proving 

that a threat 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 bodily 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 Sams, 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 “conduct and words ... calculated to create the 

impression that any resistance or defiance ... would be met by 

force”); McNeal, 818 F.3d at 153 (“Bank robbery under 

§ 2113(a), ‘by intimidation,’ requires the threatened use of 

physical force.”).

6

In his opening 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 140, because one can be 

convicted under § 2113(a) for threatening to expose another 

to a hazardous substance. At 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 filed his opening brief. Because 

Chapman forecloses that argument, we do not further address 

it here. See id. at 133 (“[T]he ‘use’ of ‘physical force,’ as 

used in § 4B1.2(a)(1), involves the intentional employment of 

something 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 Knowing 

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 that the “intimidation” element of § 2113(a) is 

measured 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.” Askari, 140 F.3d at 541 (quotation 

marks and citation omitted). Next, he contends that applying 

that standard criminalizes 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

support in the case law. See United States v. Kelley, 412 F.3d 

1240, 1244 (11th Cir. 2005) (explaining 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) (holding 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] actually intended the 

intimidation” (first alteration and emphasis in original)

(quotation marks and citation omitted)).
13

purely in reliance on bank policy, rather than out of 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 contained no mens rea requirement. See id. at 2008 

(“An individual who ‘transmits in interstate or foreign 

commerce any communication containing any threat ... to 

injure the person of another’ is guilty of a felony[.]” (quoting 

18 U.S.C. § 875(c))). The defendant appealed and argued 

that the district court erred by refusing to instruct the jury 

that, to be guilty, he had to have “intended” 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 permitted a 

“negligence standard” to be imported into that criminal 

statute. Id. at 2011. 

Wilson’s attempt to extend Elonis’s reasoning to 

§ 2113(a) is misguided. That case clarifies that courts should 

read a scienter requirement into statutes only to the extent 

necessary to prevent criminalizing otherwise innocent 

conduct. Id. The Supreme Court determined that § 875(c) 

required the government to prove a defendant intended his 

communication to be threatening because the only thing 
14

separating innocent conduct from wrongful conduct under

that statute was “the threatening nature of the 

communication.” 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 omitted). Convicting 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 Elonis itself, a 

statute criminalizing 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 

possessed 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 general 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 general 

intent, it is enough for the government to prove that the

defendant took knowing action to rob a bank.
15

Other courts of appeals have rejected the argument that 

§ 2113(a) criminalizes negligent or reckless behavior. They 

have harmonized Carter with the “reasonable teller” standard 

inherent in § 2113(a)’s intimidation requirement by requiring 

the government to prove a defendant “knew that his actions 

were objectively intimidating.” McNeal, 818 F.3d at 155.

8

 In

short, Carter and Elonis are not at odds. By reading a general 

intent requirement 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 by the use of force and violence or by intimidation. 

Carter, 530 U.S. at 268. Using an objective standard to apply

§ 2113(a)’s intimidation requirement does not trigger the 

concerns raised by Elonis, because, to be guilty, the defendant

must have knowingly robbed or attempted to rob a bank – in 

other words, the defendant had to know he was taking money 

from a financial institution that was not simply giving it 

away. This fact exposes the nonsense in Wilson’s claim that 

a teller might “comply with a [robber’s] demand for money 

 

8 See 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 other 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.”); McBride, 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 

definition, § 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 the government to prove

a defendant knowingly committed a bank robbery by force 

and violence or intimidation, it is quite obviously a crime of 

violence under guidelines § 4B1.2(a)(1).

 

9 Wilson 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 negligent 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 the perceived 

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 not turn § 2113(a) into a statute that criminalizes 

negligent behavior. Accordingly, the least culpable way of 

violating § 2113(a)’s first paragraph will always constitute a 

“crime of violence.”
17

We thus join our sister circuits in holding that bank 

robbery by intimidation, as set forth in § 2113(a),

categorically qualifies as a crime of violence under 

§ 4B1.2(a)’s “elements” clause.

10

 Since bank robbery by 

intimidation is indeed a crime of violence, the District Court

was correct to apply the career-offender enhancement.

 

10 Because we conclude that bank robbery by 

intimidation is categorically a “crime of violence” under the 

“elements” clause, we do not analyze whether it also is a 

“crime of violence” under the “enumerated offenses” 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 before the District Court. “We review an

unpreserved objection for plain error.” Dahl, 833 F.3d at

349. A plain error has occurred when there is “(1) [an] error, 

(2) that is plain or obvious, and (3) that affects a defendant’s 

substantial rights.” United States v. Goodson, 544 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 judicial 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 applying the threat-of-death 

enhancement because that enhancement did not affect his 

sentence. Assuming 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 applied the careeroffender enhancement, and the threat-of-death enhancement 

did not increase his sentence beyond the sentence mandated
19

by the career-offender enhancement.11 Thus, Wilson has not 

shown plain error.

III. CONCLUSION

For the foregoing reasons, we will affirm the sentence 

imposed by the District 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-ofdeath enhancement would only increase Wilson’s sentence if 

we were to hold the career-offender enhancement 

inapplicable. Because we hold that the career-offender 

enhancement applies, any error (if there were any) in 

applying the threat-of-death enhancement did not affect the 

sentence Wilson received.