* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-40496

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN ESCAMILLA QUINTANILLA,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(95-CR-243-1)

_________________________________________________________________ April 7, 1997

Before REAVLEY, KING, and BARKSDALE, Circuit Judges.

PER CURIAM: *

Juan Escamilla Quintanilla appeals the imposition of a twolevel enhancement, for making an “express threat of death”, to his

base offense level for bank robbery. We AFFIRM

.

I.

In December 1995, Quintanilla entered a bank dressed in a

Santa Claus outfit. Upon Quintanilla asking to speak with a bank

manager, Debbie Bledsoe, a bank vice-president, met him in the- 2 -

lobby. Quintanilla told Bledsoe he wanted to speak with her

privately and followed her to her office. Once there, Quintanilla

told her, “You are being robbed”. She replied, “This is not very

funny”, and Quintanilla responded “No, it’s not”. Quintanilla then

raised his left hand, which was covered with white material (later

determined to be a fake beard from the Santa Claus costume), and

pointed it at Bledsoe. At this point, Quintanilla was about eight

to ten inches away from her. According to Bledsoe, she could not

see what was in Quintanilla’s hand, but it “looked like there was

something” there. Restated, she did not actually see a weapon in

his hand.

Bledsoe told Quintanilla that she had no money in her office,

so he followed her to the bank teller counter

— with his raised

hand pointed at her back

— where she gave him approximately $4,700.

He departed, but was soon apprehended.

In February 1996, Quintanilla pled guilty to bank robbery, in

violation of 18 U.S.C. § 2113(a), in accordance with a plea

agreement whereby the Government agreed to recommend a three-level

reduction for acceptance of responsibility and a se ntence at the

low end of the applicable guideline range. The Presentence

Investigation Report recommended, inter alia

, a two-level

enhancement under Guidelines § 2B3.1(b) (2)(F) for making an

“express threat of death”.- 3 -

Quintanilla filed a written objection to this enhancement

recommendation. A t the sentencing hearing, following Bledsoe’s

testimony about the robbery and argument by counsel, the court

found that such a threat had been made. Counsel for Quintanilla

moved to reopen the proceedings, and the court allowed Quintanilla

to make a few statements, some of which contradicted Bledsoe’s

testimony. The court re-entered its earlier finding.

II.

Quintanilla presents two issues: whether the district court’s

factua l findings were clearly erroneous because it credited

statements to Bledsoe that she never made; and whether the court

misapplied the guideline because Quintanilla made, at best, only an

implied threat of death.

A.

Along this line, there is considerable disagreement between

the parties as to the proper standard of review, primarily because

there is some confusion in this circuit as to what standard applies

to an express threat of death ruling. Quintanilla states correctly

that fact findings are reviewed for clear error but claims that the

application of this guideline to the facts is reviewed de novo

.

The government maintains that Quintanilla’s “misapplication”

contention should be reviewed only for plain error, asserting that

it is being raised for the first time on appeal. It contends, in- 4 -

the alternative, that application questions are reviewed for abuse

of discretion.

We are not convinced that an express threat of death ruling is

properly characterized as an “application” of a sentencing

guideline. Application questions typically arise when a given set

of facts are undisputed, and the district court is faced with two

or more possible guidelines to apply to that conduct. See United

States v. Gonzales

, 40 F.3d 735, 738 (5th Cir. 1 994). We review

such questions de novo

. Id

.

Determining whether a given set of facts constitutes an

express threat of death seems more analogous, for example, to the

determination that a defendant’s conduct constitutes “obstruction

of justice”, a finding reviewed only for clear error. See United

States v. Como

, 53 F.3 d 87, 89 (5th Cir. 1995) (finding of

“obstruction of justice” reviewed for clear error), cert. denied

,

116 S. Ct. 714 (1996); see also United States v. Puig-Infante , 19

F.3d 929, 942 (5th Cir. 1994) (finding that criminal enterprise is

“foreseeable” reviewed for clear error); United States v. Fisher

,

7 F.3d 69, 70 (5th Cir. 1993) (finding of “abuse of position of

trust” reviewed for clear error); cf. United States v. Flucas , 99

F.3d 173, 180 (5th Cir. 1996) (reviewing sentencing court’s

determination of “acceptance of respo nsibility” with “even more

deference than the pure ‘clearly erroneous’ standard”), cert.

denied, 117 S. Ct. 1097 (1997).- 5 -

On the other hand, our court has suggested previously that an

express threat of death ruling is reviewed de novo

. S e e United

States v. Ashburn

, 20 F.3d 1336, 1340 (5th Cir.), reinstated in

part

, 38 F.3d 803, 807 n.11 (5t h Cir. 1994) (en banc). And, we

have characterized a finding under a different subsection of §

2B3.1(b)(2) as an “application” question and reviewed it de novo

.

See United States v. McCar ty , 36 F.3d 1349, 1360 (5th Cir. 1994)

(reviewing finding under § 2B3.1(b)(2)(C) that firearm was

“brandished, displayed, or possessed” during a bank robbery — an

“application of the sentencing guidelines” — de novo ).

For purposes of this appeal, however, we need not resolve this

dispute, because we conclude that under either de novo or clear

error review, Quintanilla’s sentence should be affirmed. Likewise,

we need not address the contention that plain error review should

be applied.

B.

The commentary to § 2B3.1(b)(2)(F) states that an express

threat of death “may be in the form of an oral or written

statement, act, gesture, or combination thereof”. U.S.S.G. §

2B3.1, comment. (n.6). In making its determination, a district

court is to consider the intent of the guideline — “to provide an

increased offense level for cases in which the offender(s) engaged

in conduct that would instill in a reasonab le person, who is a- 6 -

victim of the offense, significantly greater fear than that

necessary to constitute an element of the offense of robbery”. I d.

The district court found that Quintanilla “created a gesture

in the face and shape of a gun” and pointed it at Bledsoe with his

hand hidden under a “Santa Claus beard”. The court determined also

that a reasonable person could conclude that there was a gun

und erneath the beard and that, as a whole, Quintanilla’s conduct

“would instill fear in a reasonable person beyond that necessary to

commit the crime of bank robbery”.

1.

Based on our review of the sentencing hearing transcript, we

find no merit in Quintanilla’s attack on the findings of fact.

Although Quintanilla testified that he never pointed at Bledsoe,

the court was entitled to credit Bledsoe’s te stimony as more

credible, especially si nce Quintanilla did not testify to that

effect until after the judge concluded (for the first time) that an

express threat of death had been made.

2.

As for th e ultimate determination that Quintanilla made an

express threat of death, we refer to the appl ication note

accompanying § 2B3.1, permitting a court to base this finding on

gestures or statements, or combinations thereof. U.S.S.G. § 2B3.1,

comment. (n.6). The combination of Quintanilla’s raising his

covered left hand, forming the shape of a gun, pointing it at- 7 -

Bledsoe from a distance of eight to ten inches, and saying “This is

a bank robbery” and “No, it’s not [a joke]” clearly fall within the

parameters of this guideline.

III.

For the foregoing reasons, Quintanilla’s sentence is

AFFIRMED.