1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-30-1997

United States v. Figueroa

Precedential or Non-Precedential:

Docket 96-1421

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1

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 96-1421 

 

 UNITED STATES OF AMERICA 

v. 

 JUAN FIGUEROA, 

 Appellant

 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Crim. No. 95-00504) 

 

 Submitted under Third Circuit LAR 34.1(a) 

 December 10, 1996 

 BEFORE: BECKER, MANSMANN, and GREENBERG, Circuit Judges

 (Filed: January 30, l997) 

 

 Michael R. Stiles 

 United States Attorney 

 Robert R. Calo 

 Assistant United States Attorney 

 Walter S. Batty, Jr. 

 Assistant United States Attorney 

 Chief of Appeals 

 615 Chestnut Street 

 Philadelphia, PA 19106 

 Attorneys for Appellee

 Mark D. Mungello 

 103 LaCosta Drive 

 Blackwood, NJ 08012 

 Attorney for Appellant

 

 OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 
2

 Appellant Juan Figueroa appeals from the sentence 

imposed by the district court after he pleaded guilty to bank 

robbery in violation of 18 U.S.C. § 2113(a). Figueroa argues 

that the district court erred by enhancing his offense level by 

two levels for an express threat of death under United States 

Sentencing Guideline § 2B3.1(b)(2)(F). We will affirm and hold 

that a written statement Figueroa presented to a bank teller 

during the robbery informing the teller that he possessed a gun 

constituted an express threat of death and subjected him to a 2-

level enhancement under section 2B3.1(b)(2)(F). 

 1. Jurisdiction and Standard of Review

 Figueroa was indicted for violation of 18 U.S.C. § 

2113(a) and 18 U.S.C. § 2, and thus the district court had 

subject matter jurisdiction over this prosecution. We have 

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). A 

defendant may appeal a sentence imposed by a district court if 

the sentence "was imposed in violation of law [or] was imposed as 

a result of an incorrect application of the sentencing 

guidelines. . . ." 18 U.S.C. § 3742(a)(1) and (2). We exercise 

plenary review over the district court’s interpretation and 

application of the Sentencing Guidelines. United States v. 

Hallman, 23 F.3d 821, 823 (3d Cir.), cert. denied, 115 S.Ct. 216 

(1994). If, however, the district court's application of the 

Guidelines was based on factual analysis, we will reverse for 

clear error only. Id. In this case we regard the issue as 
3

involving the interpretation and application of the Guidelines so 

we exercise plenary review. 

 2. Background

 On April 24, 1995, Figueroa entered the Meridian Bank 

at 1470 East High Street in Pottstown, Pennsylvania, and 

approached a bank teller. His co-defendant, Marcellus Hammond, 

waited in a car outside the bank. Figueroa gave a note written 

by Hammond on a white napkin to the teller which read "I have a 

gun. Give me all the money." The note had some other writing to 

the effect that Figueroa needed a bag for the money. The teller 

gave Figueroa $2,379.00, and Figueroa left the bank. 

 On September 14, 1995, a grand jury indicted Figueroa 

for committing robbery against Meridian Bank in violation of 18 

U.S.C. § 2113(a) and 18 U.S.C. § 2. Figueroa entered a plea of 

guilty to violation of 18 U.S.C. § 2113(a) on October 5, 1995. 

On May 16, 1996, the district court sentenced Figueroa to 40 

months imprisonment, five years supervised release, a $50.00 

special assessment, and $2,379.00 in restitution. At the 

sentencing, Figueroa objected to the section 

2B3.1(b)(2)(F) 2-level enhancement for an express threat of 

death. On May 20, 1996, Figueroa filed this appeal. 

 3. Discussion

 U.S.S.G. § 2B3.1 provides that the base offense level 

for robbery is 20. Subsection (b) then lists several offense 

characteristics for which the court should apply specific 
4

enhancements. Under section 2B3.1(b)(2)(F), "if an express 

threat of death was made [during the commission of the offense], 

increase by 2 levels." The commentary to the Guidelines further 

explicates, through illustration, the meaning of "express threat 

of death": 

An 'express 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. 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 the 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 an express threat of death. The 

court should consider that the intent of the 

underlying 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, 

significantly greater fear than that necessary to 

constitute an element of the offense of robbery. 

This commentary is binding on a court unless it violates the 

Constitution or a federal statute, is inconsistent with the 

guideline, or clearly misinterprets the guideline. Stinson v. 

United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915 (1993). In 

this case none of these exceptions applies, so the commentary is 

binding and this appeal turns on our application of it. 

 Figueroa argues that he should not be subjected to the 

2-level enhancement of section 2B3.1(b)(2)(F) because his written 

note merely stated that he possessed a gun, but did not contain 

any threat to use the gun. He contends that "the comments and 

the caselaw construing this Section all require something more 

than a single statement or communication that the actor is in 
5

possession of a weapon; [Figueroa's] position is that there must 

be, at a minimum, some words or physical gestures from which it 

could be reasonably inferred by the victim that the Defendant 

intends to actually use his weapon in the event that the victim 

fails to comply with the actor's directive." Br. at 4. 

 In response, the Government argues that the statement 

"I have a gun" is an express threat of death because the 

reasonable inference to be drawn from that statement is that the 

person will use the gun if his demands are not satisfied. The 

Government argues further that by informing the teller he had a 

gun, Figueroa "instilled significantly greater fear [in the 

teller] than would have occurred had he merely made a demand for 

money, which is the only act necessary to satisfy the element of 

a taking by force, violence, and intimidation." Br. at 7-8. For 

these reasons, the Government contends that Figueroa's conduct 

qualifies as an express threat of death, subject to a 2-level 

enhancement. 

 The application of section 2B3.1(b)(2)(F) presents a 

question of first impression in this court. However, we are 

guided by the opinions of other courts of appeals. As in the 

examples presented in the commentary, in none of these cases are 

the facts exactly like those in this case, but the principles 

they enunciate persuade us that Figueroa's statement that he had 

a gun was an "express threat of death" within the meaning of 

section 2B3.1(b)(2)(F). 

 The majority of the courts of appeals which have 

interpreted and applied section 2B3.1(b)(2)(F) have held that the 
6

defendant can make an express threat of death without explicitly 

threatening to kill the victim. Their reasoning has turned on a 

reading of the word "express" combined with adherence to the 

commentary's instruction to consider the reasonable perceptions 

of the recipient of the threat. For example, one court has 

explained that "express" need not be read as meaning distinct or 

explicit, but rather also can be interpreted reasonably as 

"clear." United States v. Robinson, 86 F.3d 1197, 1200 (D.C. 

Cir. 1996) (citations omitted). Defining "express" to mean 

“clear” has enabled the courts to focus on the reasonable 

implications of, and inferences from, the defendant's words or 

actions. Id. at 1203.1 The courts thus have concluded that an 

“express threat need not be specific in order to instill the 

requisite level of fear in a reasonable person." United States 

v. France, 57 F.3d 865, 868 (9th Cir. 1995) (citation omitted). 

 The Court of Appeals for the Fourth Circuit has 

emphasized that the "crucial determination. . . is whether a 

 

 

1

 The Court of Appeals for the District of Columbia Circuit 

explained in Robinson that it believed its interpretation of 

section 2B3.1(b)(2)(F) to be stricter than that of the Courts of 

Appeals of the Eighth and Ninth Circuits as set forth in United 

States v. Cadotte, 57 F.3d 661, 662 (8th Cir. 1995), cert. denied, 

116 S.Ct. 783 (1996), and United States v. Strandberg, 952 F.2d 

1149, 1151 (9th Cir. 1991). Robinson, 86 F.3d at 1203. The Court 

of Appeals for the District of Columbia Circuit felt that those 

courts focused too narrowly on the victim's perception and thereby 

ignored the requirement that the threat be "express," however 

defined. Id. We are not forced to choose between these formulas, 

but we do not agree that the guideline's requirement that the 

threat be express has been discarded by the Courts of Appeals for 

the Eighth and Ninth Circuits. Instead, they have molded what the 

Court of Appeals for the District of Columbia Circuit views as two 

factors, that there be an express threat and that it is reasonable 

for the victim to infer his life is in danger, into one inquiry. 
7

reasonable victim would fear for his or her life because of the 

robber’s actions." United States v. Murray, 65 F.3d 1161, 1166 

n.3 (4th Cir. 1995). Similarly, the Court of Appeals for the 

Ninth Circuit has explained that what "is determinative is 

whether a reasonable person, given the conduct of the defendant 

and the context in which it occurred, would experience 

significantly greater fear than the level of intimidation 

necessary to constitute an element of the offense of robbery." 

France, 57 F.3d at 866-67 (citing United States v. Strandberg, 

952 F.2d 1149, 1151 (9th Cir. 1991)) (footnote omitted). These 

courts therefore have found that statements that defendants 

possessed weapons or would shoot, as well as gestures simulating 

the appearance of a gun, are express threats of death within the 

meaning of section 2B3.1(b)(2)(F). See Robinson, 86 F.3d at 1202 

(defendant's statements that he would shoot someone if not given 

the money constituted express threats of death because they 

reasonably could be interpreted as threats to kill); France, 57 

F.3d at 867-68 (defendant’s statement that he had dynamite 

qualified as express threat of death); Murray, 65 F.3d at 1167 

(defendant's statement "I have a gun pointed at you" constituted 

express threat of death); United States v. Hunn, 24 F.3d 994, 

997 (7th Cir. 1994) ("a bank robber's pointing his hand through 

his coat pocket, while claiming to have a gun, can be a sentenceenhancing, death threat expression"); United States v. Lambert, 

995 F.2d 1006, 1008 (10th Cir.) (instruction to teller to put 

money in the bag or "'the person behind me will shoot someone'" 

is an express threat of death), cert. denied, 510 U.S. 926, 114 
8

S.Ct. 333 (1993); United States v. Smith, 973 F.2d 1374, 1377-78 

(8th Cir. 1992) (defendant's statement that teller would not want 

to find out if defendant's demand for money was a joke, combined 

with defendant's holding his hand under his coat as if holding a 

gun, qualified for section 2B3.1(b)(2)(F) enhancement); United 

States v. Strandberg, 952 F.2d, 1149, 1151-52 (9th Cir. 1991) 

(statement to teller that if she pulled alarm defendant's "friend 

would start shooting" constituted express threat of death). 

These courts often have focused their attention on how a 

reasonable victim would be affected by the threat. 

 It appears that only the Courts of Appeals for the 

Eleventh and Sixth Circuit have applied a stricter definition of 

"express threat of death." The Court of Appeals for the Eleventh 

Circuit has held that "the threat must be directly and distinctly 

stated or expressed rather than implied or left to inference, and 

the threat 'must be of death, or activity that would cause the 

victim to be in reasonable apprehension of his or her life. . . 

.'" United States v. Moore, 6 F.3d 715, 721-22 (11th Cir. 1993) 

(citation omitted) (holding that statement that defendant had a 

gun and nothing to lose was not an express threat of death).2 The 

 

 

2

 In Moore, the court relied in part on United States v. Tuck, 

964 F.2d 1079 (11th Cir. 1992). In Tuck, the court found that the 

commentary's reference to the fear instilled in the victim by the 

threat was potentially inconsistent with the guideline and, in any 

event, not binding upon the court. Tuck, 964 F.2d at 1081. The 

Tuck court reconciled the commentary and guideline by reading the 

commentary as applying the enhancement “only to defendants who 

have engaged in conduct that would instill in the victim a 

reasonable fear for his or her life." Id. Stinson overrules 

Tuck to the extent Tuck held that the guidelines should be 

interpreted like legislative history. This flaw does not in 

itself undermine the Court of Appeals for the Eleventh Circuit's 

reasoning, because in later cases, such as Moore, the court did 
9

Court of Appeals for the Sixth Circuit recently has adopted the 

reasoning of the Court of Appeals for the Eleventh Circuit to 

hold that "to satisfy the qualifier 'express,' a defendant's 

statement must distinctly and directly indicate that the 

defendant intends to kill or otherwise cause the death of the 

victim." United States v. Alexander, 88 F.3d 427, 431 (6th Cir. 

1996) (footnote omitted). 

 We reject the Court of Appeals for the Eleventh 

Circuit's definition of "express threat of death" as too narrow. 

 See also Hunn, 24 F.3d at 997 (finding the Court of Appeals for 

the Eleventh Circuit's reading of section 2B3.1(b)(2)(F) 

"unnecessarily cramped"); France, 57 F.3d at 868 (same). Reading 

"express" as "clear," as the Court of Appeals for the District of 

Columbia Circuit suggests, reconciles the text of section 

2B3.1(b)(2)(F) with the accompanying commentary. Robinson, 86 

F.3d at 1200. If the word "express" were read to require an 

explicit, precise statement of a defendant’s intent to kill, the 

commentary’s direction to analyze the perception of the victim 

would be undermined. 

 Moreover, the Court of Appeals for the Eleventh 

Circuit's interpretation of the guideline could result in 

disparate sentences for defendants who commit the same crimes. 

Under its reasoning, a defendant could escape the effect of 

section 2B3.1(b)(2)(F) because of his brevity or random choice of 

 

consider whether the robber's threat reasonably would instill 

greater fear in the victim than the robbery alone (without the 

threat) would have. 
10

words; that is, he could avoid the 2-level enhancement simply 

because he wrote a shorter note or spoke less than another 

defendant, choosing only to announce that he would shoot the 

victim rather than threaten to kill the victim. In the calmer 

atmosphere of a sentencing colloquy, the different wordings may 

seem significant; however, in the tense environment of a bank 

robbery, the differences are truly only semantic and negligible. 

 It would be reasonable for the teller who is the target of a 

bank robbery to interpret "I will shoot you" and "I will kill 

you" as identical statements indicating that the teller's life is 

in jeopardy. We believe that Moore seized on a distinction 

without a difference, and in light of the commentary's direction 

to consider the effect of the threat upon the reasonable victim, 

we find the reasoning of the Courts of Appeals for the Fourth, 

Seventh, Eighth, Ninth, Tenth, and District of Columbia Circuits 

more persuasive. 

 We recognize that most of the cases we have cited 

involved a more detailed statement than an announcement such as 

that here that the defendant possessed a weapon. Yet there are 

cases where courts have held that such a possessory statement, 

accompanied by little else, is sufficient to qualify for the 

section 2B3.1(b)(2)(F) enhancement. The Court of Appeals for the 

Eighth Circuit has held that a defendant who told a bank teller 

who did not accede immediately to his demands that he had a .357 

magnum in his pocket and no one would be hurt if she gave him the 

money was subject to a section 2B3.1(b)(2)(F) enhancement. 

United States v. Cadotte, 57 F.3d 661 (8th Cir. 1995), cert. 
11

denied, 116 S.Ct. 783 (1996). In France, the court held that a 

robber's statement that he had dynamite constituted an express 

threat of death, although the court expressly refused to 

determine whether section 2B3.1(b)(2)(F) would apply to a 

defendant who stated he had a gun. France, 57 F.3d at 865-68. 

 In this case, Figueroa presented a written note to the 

teller that stated he had a gun but he did not communicate any 

explicit intention to use the weapon.3 However, it is not 

unreasonable for a bank teller, confronted by a robber demanding 

money, and, as here, claiming to have a gun, to fear that his or 

her life is in danger. During the sentencing colloquy, the 

district court imagined aloud how a bank teller would perceive 

this situation: 

I think the purpose of this was, I think to allow 

an enhancement where a reasonable person felt by 

looking at the person in the eye, normally in this 

situation, as well, the wrongdoer is very close to 

the teller. You go to a bank, the counter is 

there, the glass is there, sometimes the teller is 

as close as 24, 30 inches away. So you put all of 

these things together, the person's head and the 

top part of the body is looking at a person 24 

inches away or so with a gun, it seems to me, that 

is the sort of a thing that would place a 

reasonable person in fear of this, a death threat, 

that would seem so to me. . . . [H]ere is a 

person, eyeball to eyeball, that close, that says, 

I have a gun, give me the money. I think that’s 

what it is for. 

 

 

3

 In fact, Figueroa claims that he did not have a gun at the 

time of the robbery, and this claim appears to be uncontested. 

Br. at 2. However, this fact does not affect the applicability of 

section 2B3.1(b)(2)(F). See, e.g., United States v. Jones, 83 

F.3d 927, 929 (7th Cir. 1996) (“But the fact that he may have 

actually been unarmed is of no consequence provided he instilled 

in the tellers significantly greater fear than that necessary to 

constitute an element of the offense of robbery.") (internal 

quotation marks omitted); Murray, 65 F.3d at 1167; Hunn, 24 F.3d 

at 997 n.5; Cadotte, 57 F.3d at 662. 
12

App. at 16-17. A teller confronted by a robber is in a tense and 

frightening situation; moreover, once a weapon is introduced, the 

level of fear intensifies. "If a person robbed a bank by 

delivering a note to a teller stating something like 'give me the 

money and keep your mouth shut,' an enhancement would be 

inappropriate. But once a robber starts embellishing -- 'I have 

a gun -- I'm not afraid to use it -- don't pull any alarms' -- 

he's asking for an enhancement under the guidelines because those 

sorts of comments place a teller, who is seriously vulnerable, in 

a position of enhanced fear." Jones, 83 F.3d at 929. 

 The Government argues that common sense dictates that 

the inference to be drawn from a statement that a robber 

possesses a gun is that he is willing to use it. Br. at 7. This 

is a logical inference, and one that a reasonable recipient of 

the statement likely would draw. The Court of Appeals for the 

Fourth Circuit has held that a robber's statement that she has a 

gun pointed at the teller is tantamount to threatening to shoot 

the teller. Murray, 65 F.3d at 1167; see also Robinson, 86 F.3d 

at 1202. 

 We think that the logic of those cases applies here. 

When a robber announces, by word or by action, that he possesses 

a gun, he also is communicating to the reasonable victim his 

intention to use that weapon. After all, what is the purpose of 

announcing the presence of the weapon other than to convey to the 

victim that the weapon will be used unless the victim complies 

with the robber's demands? Surely the robber does not announce 

that he has a weapon for his own defense. Even if there is no 
13

gun, or if the defendant actually never would use the gun, the 

victim alerted that there is a gun is justified in believing it 

exists and will be used, and that his or her life is therefore in 

danger. The commentary to section 2B3.1(b)(2)(F) has directed 

our attention to the reasonable belief of the victim, and we find 

it is reasonable for a bank teller to interpret a defendant's 

statement of possession of a gun as a threat to his or her life. 

 Our interpretation of section 2B3.1(b)(2)(F) is also 

consistent with the underlying purpose of the Guidelines: to 

create a more systematic and equitable sentencing scheme. A 

defendant might find simply announcing the existence of the weapon 

sufficiently effective to cause the victim bank teller to act 

quickly and quietly. If section 2B3.1(b)(2)(F) applies only to 

the defendant who explicitly communicates his intention to use the 

weapon if necessary, the result will be disparate sentences for 

defendants who have committed the same crime using the same means 

but who have differed in their verbosity or articulateness. The 

commentary directs our attention to the perspective of the victim 

for a reason; it is the effect of the threat, not its actual 

wording, which triggers the 2-level enhancement under section 

2B3.1(b)(2)(F). 

 The note Figueroa presented to the bank teller stating 

that he wanted the money and that he had a gun, reasonably would 

have been perceived by the teller as communicating Figueroa's 

intention to use the weapon. The teller therefore reasonably 

would have believed that Figueroa endangered her life. Figueroa's 
14

statement constituted an express threat of death subject to a 2-

level enhancement under § 2B3.1(b)(2)(F). 

 While we do not doubt that our result is correct under 

section 2B3.1(b)(2)(F) and the commentary as it is now written, we 

take note of the circumstance that the United States Sentencing 

Commission has proposed an amendment to the commentary to make 

clear that the Commission's intent has been in accord with the 

majority position we now are joining: 

This amendment adopts the majority view and clarifies 

the Commission's intent to enhance offense 

levels for defendants whose intimidation of 

the victim exceeds that amount necessary to 

constitute an element of a robbery offense. 

The amendment deletes the reference to 

'express' in § 2B3.1(b)(2)(F) and provides 

for a two-level enhancement 'if a threat of 

death was made'. 

Proposed Amendment to the Federal Sentencing Guidelines, 60 Crim. 

L. Rep. (BNA) 2019, 2035 (Jan. 15, 1997). Inasmuch as we never 

before have addressed the application of section 2B1.3(b)(2)(F) 

and the majority of the courts of appeals already have adopted the 

position taken by the Commission in the clarifying amendment, it 

is entirely appropriate for us to consider the amendment as 

further support for our holding. See United States v. Bertoli, 40 

F.3d 1384, 1404-06 (3d Cir. 1994); United States v. Ofchinick, 877 

F.2d 251, 257 n.9 (3d Cir. 1989). 

 4. Conclusion

 U.S.S.G. § 2B3.1(b)(2)(F) applies to a defendant who 

announces in the course of a robbery, either by word or action, 

that he has a gun. Figueroa is thus eligible for the 2-level 
15

enhancement under section 2B3.1(b)(2)(F). Accordingly, the 

district court properly applied and construed section 

2B3.1(b)(2)(F) when sentencing Figueroa. Therefore, we will 

affirm the judgment of conviction and sentence of May 16, 1996. 

 

UNITED STATES OF AMERICA v. JUAN FIGUEROA, No. 96-1421

BECKER, Circuit Judge, dissenting. 

I. 

 The majority concludes that the defendant's statement 

to a bank teller -- "I have a gun; give me all the money" -- 

constituted an "express threat of death" so as to justify a twolevel increase above the base offense level for robbery under the 

Sentencing Guidelines. See 1995 U.S.S.G. § 2B3.1(b)(2)(F). In 

contrast to the majority -- which spins out an intricate 
16

explanation for this counter-intuitive holding -- I think the case 

is very simple. 

 The majority rests its holding on the last sentence of 

the relevant Guideline Commentary, which reads: 

The court should consider that the intent of the underlying 

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, significantly greater fear than that 

necessary to constitute an element of the offense of 

robbery. 

Id. § 2B3.1, comment., application note 6. The language in the 

Commentary appears to allow an increase above the base offense 

level if there is any threat of death, express or implied. 

However, that Commentary is not binding on the court if it is 

inconsistent with the Guideline or if it clearly misinterprets the 

Guideline. See Stinson v. United States, 113 S. Ct. 1913, 1918 

(1993) ("If, for example, commentary and the guideline it 

interprets are inconsistent in that following one will result in 

violating the dictates of the other, the Sentencing Reform Act 

itself commands compliance with the guideline."). I believe that 

the Commentary at issue is either inconsistent with or clearly 

misinterprets the relevant Guideline text, which provides: 

if an express threat of death was made [during the commission of

the robbery], increase by 2 levels. 

1995 U.S.S.G. § 2B3.1(b)(2)(F) (emphasis added). 

 The Guideline itself, then, allows the increase only if 

the threat is express. Therefore, as I understand Stinson, only 

an express threat of death will satisfy § 2B3.1(b)(2)(F), 
17

regardless of the language in the Commentary. The adjective 

"express" is defined as: 

directly and distinctly stated or expressed rather than implied or 

left to inference . . . Definite, Clear, Explicit, 

Unmistakable . . . 

Webster's Third New International Dictionary 803 (1966). There is 

no way, I submit, that the defendant's statement meets that 

definition. It may be an implied threat, but it is surely not an 

express threat. 

 I could elaborate upon these views, but they have 

recently been articulated quite forcefully by the Sixth Circuit in 

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

and by Judge Easterbrook, dissenting in United States v. Hunn, 24 

F.3d 994, 999-1000 (7th Cir. 1994) (Easterbrook, J., dissenting).4

 Judge Easterbrook put it best: 

The Sentencing Commission set out to distinguish degrees of 

threats. Saying that you have a gun does not 

invariably induce a fear of death. To separate 

ordinary references to guns, and the apprehension they 

produce, from the terror that a threat of death yields, 

the Sentencing Commission provided that only an 

"express threat of death" justifies the two-level 

increase. An implication from words and gestures is 

not enough. Only what the bandit says or conveys in 

signs, not what the victim reads into shadings of "I 

have a gun," is an "express" threat. Anything else

dissolves the difference between posturing and genuine 

threats of death. 

. . . . 

Threats lie along a continuum of seriousness and gravity. Yet the 

Sentencing Commission did not compose a multi-factor 

approach or ask the courts to balance objectives. It 

created a dichotomy between "express" and "implied"

 

 

4

In his dissenting opinion in United States v. Cadotte, 57 

F.3d 661 (8th Cir. 1995), Judge Morris Arnold also expressed his 

view that the threat of death need be express to satisfy § 

2B3.1(b)(2)(F). See id. at 662 (Arnold, J., dissenting). 
18

threats of death. . . . [F]eigning is ordinary for a 

bank robbery. It may have placed the teller in fear of 

harm, but harm is not death, and an inference from the 

announcement of a weapon is not an "express" threat. 

The application note shows . . . that a conditional

threat can be "express"; if, as the majority holds, an 

implied conditional threat also qualified, then 

"express" has been read out of the Guideline. 

Id. (emphasis in original). I endorse these views; hence I 

respectfully dissent. 

II. 

 Having been alerted to the Judicial uncertainty over 

the import of § 2B3.1(b)(2)(F), the Sentencing Commission has 

recently proposed amendments to that Guideline and the Commentary 

thereto. See Proposed Amendments to the Federal Sentencing 

Guidelines, 60 Crim. L. Rep. (BNA) 2019, 2034 (Jan. 15, 1997). 

Significantly, the amendment deletes from the Guideline itself 

reference to "express" in the clause "an express threat of death." 

 That clause is the source of the difficulty I identified in Part 

I. This deletion suggests that, whatever the Commission's 

intention may originally have been (the Commission writes that the 

amendments are crafted "to clarif[y] the Commission's intent to 

enhance offense levels for defendants whose intimidation of the 

victim exceeds that amount necessary to constitute an element of a 

robbery offense"), its original drafting prevented the courts from 

uniformly effectuating that intention. That the Commission had to 

remove "express" from the Guideline itself, in order now to ensure 

uniform application of the Guideline in the courts, makes clear 

that the original Commentary was without legal force. The 

Commission impliedly recognizes that the Commentary was 
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inconsistent with the Guideline text, the very inconsistency Judge 

Easterbrook described in Hunn. 

 In sum, while in cases that arise after the effective 

date of the Amendment (assuming that it passes) the district 

courts will be authorized to impose an upward adjustment on the 

basis of any intimidation of the victim that exceeds that amount 

necessary to constitute an element of a robbery offense, in the 

present case the Guideline must be construed to require an express 

threat of death. Because the record contains no evidence of such 

a threat, I would vacate the judgment and remand for resentencing.