United States v. Burns
160 F.3d 82
1st Cir.
1998
Check Treatment

*2 advocate a two-level enhancement appeal. on LYNCH, Before CYR, Circuit Judge, As we repeatedly clear, moreover, made LIPEZ, Senior Circuit Judge, and Circuit “[bjecause plea bargaining requires defen Judge. dants to waive fundamental constitutional rights, we prosecutors hold engaging in plea CYR, Senior Circuit Judge. bargaining to ‘the most meticulous standards ” of promise both performance.’

Defendant Thomas J. challenges Carrero, two-point (1st v. Velez sentencing 77 F.3d imposed enhancement Cir.1996) (citation omitted). upon by him the district pursuant Clark, 2B3.1(b)(2)(F) (1st (1995) § for having Correale v. United made “express of death” 479 F.2d during threat[s] two (1st Cir.1973). separate bank robberies. We think the message We affirm. clear, therefore, significant plea-agree ment terms should stated explicitly and unambiguously so preclude toas their subse BACKGROUND quent circumvention party. either Canada, Burns robbed the banks in spring (1st Cir.1992) (noting that government 1997, on each handing occasion the teller a not only is any forbidden from “explicit repu note warning: “I Don’t make diation assurances,” of [its] but from “end- me use it.” After government charged them”); runs around United States v. Gar Burns with two counts bank robbery, see cia, (1st Cir.1983) (“ ‘A plea 2113(a), § 18 U.S.C. parties arrived at a agreement is not appropriate context for plea agreement whereby government the Government to resort rigidly to a promised literal refrain, sentencing,” “at approach ”) in the construction language.’ recommending that Burns receive the two- (citation omitted). Thus, defense counsel too 2B3.1(b)(2)(F) level enhancement under must be alert to the need for clear and making “express threat[s] of death” during explicit pertinent articulation of all terms Although robberies. government any plea agreement negotiated govern with agreement, abided its the district court ment counsel. nevertheless elected impose the two-level enhancement. case, In the instant however, it is not necessary to determine govern- whether the

II ment plea breached agreement, its as we obliged in all events to consider DISCUSSION whether the court correctly imposed district Scope A. The Agreement of the Plea the sentencing enhancement at issue this Before addressing merits, ease, we turn to with or without benefit the gov- Burns’ motion to government’s strike the ernment’s on advocacy appeal. Accordingly, brief on appeal. Burns insists gov- that the we turn now ernment cannot be heard to ap- 2B3.1(b)(2)(F), contend on we construe de novo. death,” Nicholas, as used in An See United States (b)(2)(F), may in the form of Cir.1998). subsection act, statement, gesture, oral or written example, thereof. For or combination B. USSG *3 using or words such oral written demand that the notes handed argues you,” money kill “Give me the or I will as threatening tellers—expressly to bank to the money pull pin or the the I will “Give me “express threat[s] not of gun—were a use grenade my pocket,” in the I have “Give on 2B3.1(b)(2)(F) § be of purposes death” you,” money the or I will “Give me shoot simply they fairly interpreted could cause (where your money else me or gun to a to fire imply an intention in a across throat slash- draws his hand his wound, shoot warning or to shots you motion)”, your money or ing me “Give applicable guidelines The rather than to kill. express an are dead” would constitute provided: section of The court should consider threat death. (A) provision underlying intent of the discharged, increase that the If a firearm was (B) provide level levels; offense by if is increased 7 a level] base offense [the offender(s) engaged the cases which used, by increase 6 firearm otherwise was instill in a reasonable (C) conduct that would levels; brandished, if a firearm was offense, a victim the person, who is of by 5 lev- displayed, possessed, or increase that significantly greater than neces- (D) els; dangerous weapon if a was other- fear the sary to constitute element (E) used, levels; if by increase 4 wise offense of robbery. of brandished, dangerous weapon was dis- comment, levels; (1995) (em (n.6) increase 3 played, possessed, 2B3.1, § USSG (F) express added). if threat death was Importantly, courts ac phasis these of made, by 2 increase levels. quoted commentary cord the deference as a 2B3.1(b)(2)(F) § interpretation reasonable of added).1 2B3.1(b)(2) (emphasis § Sentencing the United States Commis appeals which have The courts of consid Commission, all, drafts the sion. “The after conflicting the issue to date ascribe two ered commentary guidelines as the inter as well interpretations pivotal guideline them, preting presume so we can that cir phrase death.” Seven guidelines interpretations of the contained in that presently cuits hold the defendant need represent commentary the most accurate expressed or actions an words indications of how the deems Commission kill,” provided' the words or intention “to guidelines applied that the should place employed were such as to actions Manual consistent with Guidelines as a . objectively victim in reasonable fear for his authorizing whole as well as the statute.” or her life. See United States 36, 45, 113 Stinson 508 U.S. United — (3d Cir.), denied, 105 874 cert. (1993). 1913, 123L.Ed.2d S.Ct. 598 -, 117 L.Ed.2d 1061 137 appeals Two other courts of have held that (1997); Murray, States v. 65 nothing “express” contemplates term less (4th Cir.1995); 1161 United States Car unambiguously that than the defendant have (7th Cir.1998); baugh, 141 declared, through unambigu- either words or Tolen, Cir.1998); 143 F.3d 1121 conduct, he to kill the ous intends vic- France, United States v. 57 F.3d 865 Alexander, tim. See United States v. Lambert, (6th Cir.1996); F.3d 427 (10th Cir.1993); F.2d 1006 (11th Cir.1993). Moore, Citing 6 F.3d 715 (D.C.Cir.1996). adjective one common definition “ex- rely distinctly guideline press”—“[djirectly These decisions on commen- stated or tary squarely point expressed here: implied rather in- left merely Although'Buras preexisting the' is substantive or sentenced under declarative version, entirely meaning whereas current version of turns law on correct 2B3.1(b)(2)(F) longer version, no includes the “ex- see infra. press," dispute as to amendment Alexander, (empha- ference,” Sentencing 88 F.3d at The gloss Commission on added)—these 2B3.1(b)(2)(F) beyond Applica- goes courts hold that well sis however; plausible, it eminently tion Note cannot control the is an sensi- 2B3.1(b)(2)(F) likely legislative ble assessment of the because Note 6 intent. focuses perceptions, commentary on the victim’s reasonable instructs that “[t]he thus should guideline consider is inconsistent with the intent itself, provide [§ is to ] an increased exclusively which focuses on the literal level Stinson, offense for cases in which the offend- wording of the threat. See er^) engaged in conduct that would instill (“[Commentary S.Ct. 1913 person, reasonable who is victim of the interprets explains Guidelines Manual offense, significantly greater than that guideline authoritative unless violates fear *4 necessary to constitute an element of the statute, the Constitution a federal or is robbery.” 2B3.1, offense See with, a plainly inconsistent erroneous comment, (n.6) (1995) added). (emphasis of, reading guideline.”) (emphasis that add- ed); Damon, 139, 127 F.3d robbery The offense of contemplates sim (1st Cir.1997) (same). Thus, 145 n. 7 decla- ply subjected that the defendant have his gun,” as “I rations such have or even “I will victim to minimal levels of fear or “intimi my gun,” to are not “ex- considered 2133(a). dation.” See 18 U.S.C. Courts press threats of death” because the victim generally evaluate levels of un “intimidation” necessarily supply must the ultimate infer- objective der an standard: whether a reason ence that the defendant means to shoot to person in able the same circumstances would kill, opt not to wound. We for the bodily felt coerced threat of harm. majority view. See, Henson, e.g., United v. States 945 F.2d Cir.1991); 439-40 see also United sentencing guideline Before Askari, States Cir. commentary may and its related be deemed 1998) (en banc); Woodrup, States inconsistent, mutually the must deter (4th 86 F.3d 363-64 mine “following one will result in violat (9th v. Foppe, Stinson, ing the dictates of the other.” 508 Cir.1993). at Although S.Ct. 1913. 2B3.1(b)(2) Section identifies settings, six adjective “express” commonly connotes “[d]i- seriousness, in descending order wherein a reetly distinctly expressed stated or and will be found to have engaged implied inference,” rather than or left to “intimidation,” something more than mere so may simply mean alternative some perceived as to enhance actual risk to thing perceived is as “clear” and “un Lambert, the victim. See 995 F.2d at 1008 ambiguous.” Figueroa, (“Although implied coercion and at least 1200). (citing 86 F.3d at Thus necessarily are threats involved the bank construed, § upon focuses not offense, express robbery threats of are death subjective the criminal defendant’s intent as not.”). Thus, the Sentencing Commission de- expressed through literal language of the interpret “express to termination threat, upon likely but inferences which objective, death” under an reasonable-person reasonably might the victim draw the cir standard, subjective rather than the standard Moreover, nothing cumstances. in the term Moore, supra, advocated in Alexander and remotely “express” compels itself the conclu comports assessing with the standard Congress sion that intended the most re 2113(a). “intimidation” under 18 U.S.C. 3.1(b)(2)(F). interpretation §of strictive 2B then, remaining question, Consequently, even if were we inclined to in passed Burns *5 that defendant (requiring Hunn, brook, in dissenting United uncertain- real-world you” kill “discounts will Becker, (7th Cir.1994), Judge 994 ties”).2 Figueroa, 105 dissenting States v. in United probable that highly it is — judgment In our denied, (3d Cir.), cert. 874 confronted person, objectively reasonable 1061 L.Ed.2d -, 137 117 S.Ct. claimed gun he to “use” the by Burns’ threat Arnold, in dissenting (1997), Judge and turned over the the teller possess unless (8th Cadotte, any comfort draw little money, would Cir.1995). ex and clear the forceful Given actually Burns concerning whether surmise opinions, rationale in those of the pressions it; use really meant to he gun; a whether had only a words. add few and, so, he if intended note, by the handed a issue is whether compliance. kill than absent wound rather teller, a constitutes robber to bank brought Thus, power the coercive The note read: of death.” “express threat exceeded the far robberies bear these use it.” No make me a Don’t “I have required un- of “intimidation” minimal level to, so gestured otherwise gun was seen See, 2133(a), e.g., supra. 18 U.S.C. see der words of entirely turns on the the issue (“[A] reasonable threat, then express note is an If note. from a bank robber receiving a note teller levels, range of 14 to two a an additional ‘shoot’ means likely infer very would months, by the dis- properly added Jones, 927, 18 were ‘kill’.”); the sentence. trict court (noting: when defendant it, “[w]hy gun and will states he has “express” definition of The common that he was anyone want assume “definitely and is a threat bluffer?”). merely a liar or stated,” Heritage The American explicitly ed.1985), or “distinct- Dictionary College Ill implied or expressed rather ly stated or CONCLUSION inference,” New In- Third Webster’s left to “clear; (1993), Dictionary Sentencing ternational conclude We therefore unmistakable; dubious definite; 2B3.1(b)(2) explicit; Appli- gloss on Commission gun.” stated: "I majority cases the defendants acknowledge respectfully 2. We Burns, an in- "express asserted neither defendant proper Unlike view on the Thus, provoked vigorous we have no gun. dissents has "use” the threat of death" tention to F.3d at 880 jurists. specific from able threats to consider whether the occasion J., (Becker, dissenting); "express employed cases those constituted J., Cir.1994) (Easterbrook, death." threat[s] of nonetheless, note, that in both dissenting). We ambiguous,” Law Dictionary Black’s reservation, but also its effect on those who (4th ed.1951). By any common understand- believe the written law says.”). means what it ing of the death,” threat of If the law does not mean says, what it as has this note not such threat. happened here, then it has failed to meet one of the most basic requirements Nevertheless, any fair majority and several just and legal system. other persuaded are circuits the commen tary Guidelines, as the majority opin skillfully

ion explains. But the Commission guise of commentary is not free to change the meaning Guidelines, see

Stinson 43, 113 1913, 123 (1993), that, L.Ed.2d case,

on the facts of this is what is happening

here. As Chief Justice John Marshall said

almost one hundred eighty years ago: UNITED America, STATES of Appellee, “Where there is no ambiguity in words, there is no room for construction. The case must be a strong indeed, one which would

justify a Court in departing plain from the PEREZ, Alina Defendant, Appellant. meaning words, especially penal act, No. 96-2042. search of an intention which the words themselves not suggest. did To determine United States Court Appeals, that a case is within the intention of a stat First Circuit. ute, its language must authorize us to say *6 so.” (5 Wiltberger, 18 U.S. 6,May Reheard 1998. Wheat.) 76, 95-96, (1820). 5 L.Ed. 37 Decided Nov.

What harm is there in this? The harm to Burns is concrete —more prison. time in

There is harm to the law as well. One harm

is that articulated Judge Easterbrook— this part Guideline is of a series of

sanctions meant gradate degrees of

threats, and this result “dissolves the differ-

ence” in degree. 24 F.3d at 999

(Easterbrook, J., dissenting). The intent of particular

this law perverted. is thus

Another harm is even more fundamental

and is to the structure of the law. The law

should mean says. what Supreme

Court has weighed the constitutional effects laws taking them to mean they what

say, finding that appropriate measure. Baggett Bullitt, 360, 374, (1964) (invalidat- 12 L.Ed.2d 377

ing state-mandated oath office reply-

ing to state’s people contention —that

not decline to take the oath out of fear

because there was little prose- reason to fear by saying that ig- “[t]his contention cution' —

nores not the effect of the oath on those

who will not solemnly swear they unless can

do so honestly and prevarication without notes the tellers came within terpret differently term “express” “express” the definition of contained in the Commission, we would defer guideline commentary. guideline commentary because the “ex press” reasonably is construed context as We loathe hold that synonymous “perceived teller—presented with as clear and un reasonable bank with a de ambiguous.” money stating: “I mand as a due deference 6 warrants unlikely cation Note use it.”—-would me Don’t make agency en- by the announcing plausible his the robber to infer responsibility Moreover, by Congress even with trusted gun. use the readiness guidelines to whether quibbles as to administer assuming that kill, merely to within in this case came threats shoot robber meant adopted by the a teller at all to threat” wound, likely to occur definition are robber, they by a bank actually confronted Commission. of com- represent distinctions simply do Affirmed. “objective reason- under weight pelling Circuit Third As the standard. ableness” dissenting. LYNCH, Judge, Circuit atmosphere observed, the calmer “[i]n has different word- sentencing colloquy, the[se] the well-crafted respectfully dissent however, in the significant; may seem ings the reason joining opinion, instead majority robbery, of a bank environment tense the Eleventh Circuit ing of negli- truly only semantic are differences Cir.1992), Tuck, gible.” Alexander, in United States Circuit Sixth (6th Cir.1996), Judge Easter- say “I