United States v. David Frank Jennings, A/K/A Mike Frank Stout
439 F.3d 604
9th Cir.
2006
Check Treatment
Docket

*1 Gonzales, tioner.” Mohammed v. (9th Cir.2005); see also INS,

Stoyanov (9th Cir.1999) (“[T]he BIA provide must a rea- analysis soned legal basis for its holding, specifying well particular relies.”)- facts on which holding Our jurisdiction conclusion that we lack to re- view Fernandez’s claim regarding the

BIA’s determination that she did not make a prima

out facie case of hardship fore- argument. closes this As we have already determined that jurisdic- we are without tion to review the BIA’s conclusion on the merits, expressed concerns in Mo- Stoyanov

hammed and about our ability to review inadequately reasoned or cursory jurisdiction

BIA decisions when present apply. Mohammed, do not 793; at Stoyanov, 172 F.3d at 735. Conclusion

For the given, reasons we dismiss the petition for review for lack part juris- deny

diction and it in part. PETITION FOR REVIEW DIS- part; MISSED in part. DENIED in UNITED America, STATES of

Plaintiff-Appellant, JENNINGS, David Frank Mike a/k/a Stout, Frank Defendant-

Appellee. No. 04-10343. United States Court of Appeals,

Ninth Circuit. Argued Sept. Submitted

Filed March

BERZON, Judge. Circuit left appeal presents This States by this court in United open (9th Cir.1995): F.3d 865 who, in the course a defendant Whether gun he has a robbery, states that a bank willingness to his no reference but makes subject a two-level sentenc to use it is a “threat of death” for ing enhancement Sentencing States pursuant United Guidelines) (U.S.S.G. Guidelines 2B3.1(b)(2)(F).1 Although we decline in answer to per se rule impose under most circum we hold that question, he stances, statement that robber’s bank to instill a fear is sufficient gun has a victim therefore death in a reasonable warrants the threat-of-death

I. 14, 2003, the August the afternoon

On Jennings, defendant, entered David Frank Vegas, in Las Bank of America branch Nevada, teller and demand- approached a Attor- Bogden, United States Daniel G. money on your all money, stating: “Put ed Damm, Assistant United ney, W. Camille gun. do Just top of the counter. Damm, Gregory Attorney, and J. States it now.” The teller summoned Attorney, Las Ve- Assistant win- manager, approached who NV, plaintiff-appellant. for gas, manager: told the Jennings then dow. Forsman, Public De- Federal Franny A. money on the “Sir, put her to tell Carr, fender, Assistant Federal Jason foot counter, Jennings fled on hurry up.” Nevada, Defender, for Vegas, Las Public thousand dollars just one with over shortly defendant-appellee. there- apprehended cash. He arrested.

after and robbery for bank Jennings was indicted 2113(a). After of 18 U.S.C. violation Department guilty, pleaded he presentence initial prepared an Probation (PSR), recommending a two-level report robbery of a financial FLETCHER, JOHN for B. BETTY Before BERZON, a three-level downward GIBSON,* institution and MARSHA S. R. responsibili- acceptance for adjustment Judges. Circuit * indicated, all citations Unless otherwise Senior United John R. The Honorable Circuit, 2003 edition are to opinion Eighth Judge for the States Circuit Guidelines. by designation. sitting

ty. government objection The an filed After two-level enhancement was the initial arguing stricken, imposition PSR the applicable range Guidelines of a pursuant two-level enhancement to was 57-71 months. Consistent with the 2B3.1(b)(2)(F), provides: Department of Probation’s revised mid- *3 made, “if a threat of death was increase range recommendation, the district court by 2 levels.” After considering gov- the sentenced Jennings to a prison term of 63 objection, ernment’s Department government months. The timely appealed. Probation agreed that the enhancement

was warranted and amended the PSR to II.

reflect the application of the in- two-level Jennings suggests that we should de crease, resulting in a sentencing range of cline government’s to decide the appeal of 70-87 months. the district interpretation court’s of the

At Jennings’s sentencing hearing the Guidelines because of the intervening deci district argument court entertained on Booker, sion in United States v. 543 U.S. threat-of-death 220, 738, Both Jen (2005). 125 S.Ct. 160 L.Ed.2d 621 nings attorney and his Booker, stated that there After district courts must consider were no factual errors in the revised PSR.2 but not formerly need follow the mandato After an colloquy, extensive ry district aspects of the Guidelines. Id. at 764- court sustained the objection defendant’s post-Booker In the of advisory world to the enhancement, two-level sentence Guidelines, after this court has clarified that, holding context, taken in Jennings’s interpretation of the Guidelines a dis statement not adjustment. did warrant the trict court impose could the same sentence Noting that neither the commentary to Still, on remand. district because courts Guidelines nor the Ninth opinion must, Booker, Circuit’s after consult Guidelines in France that simply states asserting that for in advice fashioning appropriate sen one has a gun is sufficient to constitute a tences and must accurately, do so we con death, threat of the court concluded that tinue to challenges address pre-Booker Jennings’s statement “alone without more district court interpretations of the Guide is simply not sufficient” to the en lines. Kimbrew, See United States v. 406 addition, hancement. 1149, (9th district court F.3d Cir.2005); 1152 see also appeal by foreshadowed this noting: “I Cantrell, United States v.

think the Ninth (9th Circuit is entitled to Cir.2006); revis United States v. More it this I hope they issue. will. hope no-Hernandez, 916 n. 10 (9th case will employed Cir.2005). revisit it. I think Jennings’s objection broad it would be crystal-clear an excellent case to the vitality continued appeal is to do that.” therefore well taken.3 proceedings court, In the before the district in fact told the teller gun. he that had a defense initially counsel refused to concede Accordingly, proceed on understand- that Jennings had made the statement ing Jennings that made alleged. the statement question, specifically noting in the defendant’s 3. Kimbrew did Objections question not consider Report Presentence that the argument opposition now-advisory nature to the of the proceeded Guidelines has assumption precise computa- on the rendered the that the state- was, fact, ment tion During range made. of Guideline argu- unnecessary oral in a however, ment appeal, range on require certain of cases complicat- defense counsel that determinations, conceded Jennings that when attorney ed his factual such the amount agreed that the PSR monetary contained no may factual point loss. There be little errors, they conceding Jennings were requiring had district engage courts to in the what, any, if explain court district did the overall sentence a defendant’s Although to conclude upon it relied for rea circumstances is reviewed Guidelines under the Booker, at 765- did make sonableness, S.Ct. see inquiry the district therefore view the reasonableness death. We within interpretation proclama- Jennings’s court’s district decision court’s “[t]he of law ais Sentencing more Guidelines “alone without the bank teller tion to review, de novo while subject to legal is making not sufficient” as simply is in the course determinations factual statement bald determination reviewed guidelines applying insufficient, standing legally v. Lin error.” See United clear of death. alone, to a threat to amount Cir.1994). (9th dholm, *4 his contention support In further matter, to determine preliminary aAs be for in this should review case that our we must of review standard proper the single a error, Jennings on relies clear characterization the correct establish in prior our decision from statement the applica- on court’s decision the district France, we considered where enhancement. threat-of-death bility of the 2B3.1(b)(2)(F) that the § and concluded court district that the Jennings’s argument enhance finding the that district court’s determination, re- making a factual was “clearly erroneous was not applied ment error, the reflects only for clear viewable a in the of bank context when considered that the court’s statement district France, Three at 868. robbery.” a enhancement was impose-the statement, however, after that sentences that assessment factually-specific “very affirming the our holding that we clarified facts and the looking at the to be has on the dual premised was district court used, are gestures that that words proper court that “the district conclusions that and used, the circumstances” [and] U.S.S.G. applied ly interpreted “in evaluated to be needed the statement 2B3.1(b)(2)(F)” district that “[t]he In made.” it was in which the context clearly not findings were court’s factual statements, however, is contrast to these Thus, in decision Id. our erroneous.” govern- remark that court’s the district recognizing understood as is best to this its decision appeal should ment en such an to.impose the decision issue, indicating generic a court to resolve conclu legal involves both a hancement legal rendering deter- court that the was at issue could the statement sion—whether such a statement as to whether mination law, ever, constitute as a matter Jennings could ever one made as the a factual determination— of death —and addition, a threat of death. as qualify circumstances whether, specific under court’s reference district despite the in fact a threat was the statement present, surrounding circumstances and the context opportu- take We therefore of death.. during colloquy robbery, at no time Cantrell, compli- resolving this issue. academic exercise purely issue). deciding (noting same but not n. 3 questions order to delineate cated factual the threat-of-death Given has range if the court an exact Guidelines factual present a difficult ordinarily does not already on a reasonable sentence settled here, has con- the defendant issue—and forth in 18 U.S.C. light set factors was in fact at issue the statement ceded 3553(a). has Although the Second Circuit vehicle to cases, proper is not that, case precise cal- made—this in such determined Accordingly, we question. consider always necessary, see United culation is Cantrell, question for (2d we leave that Cir. did Crosby, day. 2005), yet another has reached the Ninth Circuit nity clarify what implicit The court should consider that in- hold that whether a bank robber’s tent of this provision provide is to an statement can express constitute an threat increased offense level for cases in which legal of death is a interpretation offender(s) engaged in conduct that Guidelines, novo, which is reviewed de but instill person, in reasonable who itself, whether the statement taken in offense, con is a victim of the a fear of death. text, amounts to a threat of death under 2B3.1 cmt. n. 6. As further the circumstances is a factual determina elaboration, the commentary lists several tion, which is reviewed clear error.4 examples of statements that would war-

Accordingly, rant the enhancement, de threat-of-death review novo the in- dis- cluding: trict court’s conclusion that the lone state- is, ment “I have a gun” law, aas matter of money “Give me the I you”, or will kill insufficient to warrant threat-of-death “Give me money or I pull will pin It is to that question that on grenade my have in pocket”, nowwe turn. “Give me the money or I will you”, shoot (where

“Give me the or else III. defendant draws his hand across his *5 throat in a motion)”, slashing or “Give The provision Guidelines at issue in me the you or are dead.” case, 2B3.1(b)(2)(F), § U.S.S.G. impos Id. Absent from a the list examples es two-level of pro- increase to a defendant’s vided in § the commentary base offense to level a 2B3.1 is a when “threat of death” statement, like the by was made one made during Jennings, the commission of a in which a bank criminal robber offense. to commentary The claims appli weapon but does in any cable to this enhancement manner threat- reads: en to use weapon, all, any force at “A death,” threat of as used in subsec- robbery. course (b)(2)(F), tion may be in the form of an statement, act, oral or written gesture, begin We analysis our with our prior or combination thereof. France, Accordingly, decision in in which we considered the defendant does not have to applicability state of the threat-of-death en- expressly his to intent kill the victim in hancement 2B3.1(b)(2)(F). §in contained order for the enhancement to apply.... France, In the bank-robbery defendant concluded, 4. The Seventh Circuit has supported finding do that[the defendant] we, application that the of the threat-of-death applying of death” but clear error actually enhancement determinations, separate involves two any review as to disputes”). "factual Both legal one and the other factu- Circuits, contrast, the Fifth and Sixth have al. See United States v. 155 F.3d held that applicability of the threat-of- (7th Cir.1998) 846 (holding that ''[w]hether a death legal enhancement is a determination. robber’s statement express can constitute an Soto-Martinez, See United v. threat of legal death interpreta- involves the (5th Cir.2003) 478-79 (holding that sentencing tion of a guideline" which is re- when the robbery facts aof are undisputed, viewed de novo but "[w]hether statement imposition of the ques- enhancement is a amounts to a threat of death under the cir- Guidelines, application tion of the of the to be question” cumstances is a factual to be re- novo); Winbush, reviewed de United States error); viewed for clear see also United States (6th Cir.2002) ("Whether Gray, (1st Cir.1999) F.3d these facts warrant sentence enhancement (applying de novo to review "the trial court’s pursuant 2B3.1(b)(2)(F) §to legal is a conclu- interpretation guidelines of the or its final subject review."). sion to de novo determination to see whether the facts here directly pre- clining question to answer the stated “Give note which the teller passed “Finally, need not by this we sented case: your drawer. 50s me all the 100s case decide France, at dynamite.” have 2B3.1(b)(2)(F) apply defen- § version then-existing Under robbery during who announced dant subject 2B3.1(b)(2)(F), was a defendant France claimed this case gun. had a he “express for an a two-level enhancement up the could blow dynamite, commen- death,” by the defined threat in the bank, just the people entire in a would instill “that as a statement tary government vicinity.” Id. The immediate of the who is the victim person, reasonable left reach the asks that now we than that offense, greater fear significantly by France. unanswered of the an element constitute necessary to robbery.” inquiry, embarking on Before offense (1995); cmt. that we 2B3.1(b)(2)(F) Jennings’s argument § 2B3.1 respond id. holding and by our longer no bound n. 6. of an inter- because reasoning in France considering the when France held language in the vening change en- the threat-of-death applicability of After at issue. provision Guidelines objec- an hancement, conduct are to courts decided, the United States defendant’s the effect the inquiry tive into text amended the Sentencing Commission on a reason- would have actions words and respects. significant in two 2B3.1 at 866. We victim. able language mandated prior While reading that a reasonable concluded “express for an two-level experi- “would at issue note the demand guideline death,” the amended threat than greater fear significantly ence removing the this standard softened *6 necessary to consti- intimidation level of “express.” threats requirement that robbery.” offense of the tute an element (2003) 2B3.1(b)(2)(F) § U.S.S.G. Compare “I have The reference at 866-67. Id. 2B3.1(b)(2)(F) (1995). U.S.S.G. with determined, was akin to dynamite,” we addition, Sentencing Commission example even grenade commentary’s change the commentary to amended threaten specifically France did not though “signifi- instill requirement that the teller up to blow dynamite to use the necessary to that than cantly greater fear at 867. the bank. Id. or offense of the an element constitute France, in analysis of our In the course the threat requirement robbery” to Eleventh with the disagreement we noted app. “a of death.” fear instill Circuit, phrases had concluded (2005). which According to C, 552 amend. gun have a and “I gun” Manual, “I have a amended such as the text was Guidelines insufficiently in lose” were nothing to discussed conflict address circuit “direct, distinct, constitute express” Sentencing Commis- The See id. France. view, (quoting ap- majority of death.” Id. adopted “express threat[s] sion 1079, Tuck, the combina- F.2d 1081 “when v. 964 the enhancement States plied United and words Cir.1992)). (11th Circuit’s actions The Eleventh of the defendant’s tion in the person “unneces- in reasonable view, instill we stated would (e.g., victim require immediate it because would sarily cramped” position teller) than fear words,” amount of greater such “magic use bank robber to robbery.” Id. give necessary to you if don’t commit dynamite “I will use the Robinson, 86 Nonetheless, v. States (citing United money.” Id. at 868. me the (D.C.Cir.1996) United 1197, 1202 by de- opinion France we concluded 610 (4th 1161, Murray, life);

States 65 F.3d 1167 would have been fear for her Cir.1995)). Thus, Soto-Martinez, the amendment of United States v. 317 F.3d designed (5th Cir.2003) 2B3.1 was the gen 477, endorse (holding 479 that “I eral, objective approach by taken gun” have a is sufficient to reject Ninth Circuit in France and to sentencing merely enhancement because it “cramped” requirement of “direct” threats requires a teller to make the reasonable advanced the Eleventh Circuit. See gun inference that a robber would use the 216, Day, United States v. 272 F.3d 220 he if claimed to have he did not receive the (3d Cir.2001).5 demanded); money he United States v. Winbush, (6th Cir.2002) 442, 296 F.3d Accordingly, contrary to Jennings’s (holding claim, merits an holding reasoning enhancement because a reasonable teller remains authoritative. comply believe that failure to “would course, correct, that the shot”); result in being fatally United phrase suggests “fear of death” a different (7th 155 F.3d inquiry than phrase “significantly Cir.1998) (holding that the statement “I greater necessary fear than that to consti- a gun” absent mitigating have circum- tute an element of the offense of robbery.” ordinary stances would lead an teller to case, In neither France nor howev- shot); Roberts, fear being United States v. er, any was there doubt that there was if (8th Cir.2001) 253 F.3d (noting threat, death, an actual it awas threat of in dicta that a defendant’s statement injury. not of some lesser gun he had a would be sufficient to war- Although the Ninth Circuit has not con enhancement); rant two-level United application sidered the 2B3.1 since Arevalo, (10th States v. amendments, every the 1997 other circuit Cir.2001) (holding that the statement “I to consider the issue of whether “I have a a gun” would cause a reasonable tell- gun” constitutes a threat of death under er to being fear shot phrase and that the the current version of the Guidelines has am willing “[I] to use it” would make a answered that in the affirmative. fear of death even likely); more Jennette, See United States v. Murphy, States v. *7 (2d Cir.2002) (holding that the (11th Cir.2002) (holding that a demand gun” statement “I have a is a threat of note that read “You have ten seconds to teller, death because a upon reasonable hand me all money your the in top drawer. statement, hearing the “normally and rea gun” have a warranted the two-level sonably would fear that his or her life is in enhancement because a reasonable teller danger”); Day, 272 F.3d at (holding would interpret the statement to mean: that “I gun” have a is a threat of death “If I give do not robber within under the “broad[er]” amended enhance seconds, shot; ten I will be people and ment); Franks, United States v. die.”). who are shot often (4th Cir.1999) 335, 338 (holding that a note “I stating have a gun. I have nothing to Guided the text commentary and of 2B3.1, lose” warrants the threat-of-death prior France, en our in decision hancement because a reasonable reasoning teller of the nine other circuit Tellingly, after the 1997 amendments the to constitute a threat of death. See United recognized Eleventh Circuit prior that its Murphy, longer view was no correct and concluded (11th Cir.2002). gun” that the statement "I have a is sufficient Thus, as the Seventh is made. issue, have no statement to consider courts noted, a robber’s statement has a rob- Circuit concluding that bank in difficulty always amount gun he has a will not can that gun he has a that plain statement ber’s death, given inquiry’s a threat of a threat-of-death and context.” “sensitivity to fact §of 2B3.1 as well commentary Both the Rather, conceiv- at is “[i]t require language circum- mitigating that unusual able objective approach apply an courts statement aceompanying[the] stances qual- given a statement determine ordinary their deprive the words could of death. U.S.S.G. as a threat ifies (internal Id. expected meaning.” 6; 57 F.3d at 866. n. § 2B3.1 cmt. omitted). quotation marks then, how a reasonable emphasis, is on The robbery, would teller, as the victim the most, but hold that We therefore a robber’s Both bank the statement. view circumstances, all, such as not statements and the making the statement intent to instill a gun” sufficient “I have used actually would that he likelihood in a victim of death reasonable fear both irrelevant. deadly force are 2B3.1(b)(2)(F) enhancement. warrant (“We not n. 1 do F.3d at Murphy, 306 Circuit, howev the Seventh agree with We deter- intent to be the robber’s understand er, that there could be circumstances that shooting might .... A threatened minative “I have sufficiently phrase dilute the would than the shooter effect on have a different as a qualify it not gun” a so that would might The shooter target: potential on the be a example An would threat. death harm, target but at most intend robber claimed to in which a bank situation would reasonably fear that the shot might quite was but brandished what gun have fatal.”); Gray, 177 United States Thus, objective, it obviously toy. Cir.1999) (1st (finding “no 86, 92 adopted standard reasonable the fact that difference” in meaningful light ultimately governs France that carrying gun actually was not robber circumstances, any per se rule. not all robbery course of the because during the from the respect, we deviate In not discerned teller “could have court, reasoning of the district signs”). all the outward from determination, concluding converse addition, objective ap- because the more is alone without the “statement likely of a on the reaction proach is based of a In the context simply sufficient.” teller, into the an examination reasonable robbery, a reasonable teller teller is specific of one subjective reaction threat, assume commentary to The inappropriate. also the bank part an effort on the enhancement § 2B3.1 states of a firearm the sale propose robber to *8 “ins- would when a statement apply should underpin the historical debate on open to a victim who is person, in a reasonable till Amendment. See nings of Second offense, U.S.S.G. a fear of death.” Figueroa, States v. Any approach other cmt. n. 6. § 2B3.1 Cir.1997) (3d pur is the (asking “what who defendants create a windfall for would of a announcing presence pose a bank victimize fortuitously selected to convey the victim to other than to weapon unusually an thick skin. with unless used weapon will be de robber’s with the time, complies objective ap- victim At the same mands?”). unreason Moreover, is not it take into ac- requires courts proach perceive such a teller to in which able context the overall count to deadly, “[g]uns widely be as known rant the threat-of-death capable to be of producing death.” Mur- The reading assertion is 2B3.1(b)(2)(F) phy, § 306 F.3d at 1089 n. 1. encompass to the state- gun” ment have a cause en- dynamite The distinction between to applied “every hancement to conceiv- firearms mentioned France does not by 2113(a), § able circumstance” covered noted, detract from this conclusion. As thereby making part it of the base offense dynamite observed that has the argument level. This unavailing for a potential destroy bank, the entire number of reasons. just vicinity. individuals true, First, F.3d at it fails to Although account for the fact that consider 2B3.1(b)(2)(F) § applies ation does not demonstrate that the various rob- state extortion, bery, ment “I and blackmail does not offenses and also consti not simply bank-robbery tute a threat of offense for equally death. Guns are Jennings indicted. capable causing death. govern As the § if Jennings’s 2B3.1. Even of- ment proceedings noted before the fense conduct was court, determined to be devices, district coter- incendiary unlike enhancement, minous with the it does not guns, time, lag often have a which would necessarily follow that the threat-of-death allow a victim time to flee or seek cover. grafted enhancement would be onto all Furthermore, damage while the by caused by § crimes covered 2B3.1. a bomb can be more massive and wide spread, a easily robber can more focus a Furthermore, reading of the statute pistol on one victim inju to ensure serious under which was indicted and short, ry or death.6 In significant no dif convicted x-evealsthat the threat-of-death ference exists between a bomb and a gun enhancement would applied not be in “ev limiting applicability ery conceivable circumstance” under the 2B3.1(b)(2)(F) to the former but not the 2113(a) statute. 18 U.S.C. covers not latter. only individuals who take property from a “by violence, by force and or intimi Jennings’s strongest argument to the dation,” as did Jennings, but also those contrary is that the mere statement who property obtain by from a bank extor one is armed with a firearm should not be tion and those who enter a bank with the interpreted rising to the level of a intent to commit a felony therein.7 See 18 “[tjhere threat of death because must be 2113(a). U.S.C. some line of demarcation” between con- duct satisfy sufficient to a conviction Jennings’s fox- contention also does not rec- bank robbery and conduct that would war- ognize the fact that one can commit a True, greater 2113(a) control an individual has 7. The full text of 18 U.S.C. reads as over a firearm would allow a robber to direct follows: foot, the shot at the floor or teller's there- Whoever, violence, by force by or in- by decreasing the chances for death. Be- timidation, takes, take, attempts or from cause the intent of the bank robber is not another, person presence or or ob- relevant, however, argument would ne- attempts tains or any to obtain extortion cessitate a situation in which a reasonable property any or thing other teller would conclude that the robber would to, care, belonging value custody, or in the high-pressure shoot to kill. context *9 control, of, management, possession any or a robbery, a bank reasonable teller is un- bank, union, any savings credit or and loan inference, likely to draw that absent some association; or unusual contextual circumstance. attempts Whoever enters any or to enter bank, union, any savings credit or and loan

613 conclusion, In while we decline to intimidation without force or robbery with Jennette, that “I a will adopt per gun” a se rule have Uves. See threatening always it is not strict- constitute a threat of death under (holding that because at 292 2B3.1(b)(2)(F), that, for a victim we hold under ordi necessary under the statute ly circumstances, death, nary is such a statement guideline enhancement to fear con- a would instill a fear with the basic offense bank robber not coterminous duct); in a and Bingham, v. of death reasonable teller there States Cir.1980) (9th (holding imposition that bank fore would of the sentencing can be committed two-level enhancement. Ab robbery by intimidation harm, bodily any sent circumstances that “de “express threats of would without motions, physical ordinary of their and ex threatening body prive or the the words It at weapon[s]”). pected meaning,” concealed see F.3d possibility of a imagination prof- gun” qualifies of the “I have a threat takes no stretch by bank rob- death. examples fer of statements justify the that would not two-level

bers ob- As the Seventh Circuit IY. served, “give note that stated a demand sum, In statement that a bank robber’s keep your mouth shut” me the usually, always, gun he has a is but to warrant the en- would be insufficient trigger sufficient to the threat-of-death en- Jones, hancement. United States hancement. We stress that the test (7th Cir.1996). Likewise, a statement is to ins- whether the sufficient could threaten to hit bank robber victim, in a reasonable till fear of death fist, up him his or to tie teller with particular reaction of the teller- not the threat him in a room. While either lock as the decision of the teller here such robbery by in- certainly suffice for would Also, manager. the defendant’s call her timidation, a rea- unlikely it would be for example, that exact words—for those to fear death under sonable teller “I do it now” after have added “Just circumstances. urgency may pertinent be gun,” implying — ac Jennings’s argument fails to Finally, determining reasonable sentencing fact that the other count for the fear death. would received, taking he enhancement conclusion that light pursuant of a financial institution property death, as a threat of qualify can 2B3.1(b)(1), always court to this case to the district remand bank-robbery offenses under applicable of the enhance applicability reconsider the 2113(a). no reason He offers 18 U.S.C. ment, pertinent account all the taking into must why threat-of-death enhancement circumstances, and to resentence Jenn when the offer a “line demarcation” ings.8 clearly financial institution AND REMANDED. REVERSED not. does States, association, any or statute of the United any building tion of or used in whole bank, union, larceny— any or as a part as a credit or in association, imprisoned intent to title or savings loan with fined under this Shall be union, bank, twenty years, credit or or both. commit in such than not more association, savings or build- such and loan will, course, thereof, used, apply at resentenc- felony any 8. Booker ing, part so union, Dupas, bank, ing. affecting or such See United such credit Cir.2005). (9th savings and in viola- and loan association *10 GIBSON, Judge, concurring: Circuit

The record demonstrates that the dis sentencing colloquy trict court in the ac in, knowledged the and based its language on, sentencing paragraph decision 7 of the Presentencing Investigation Report which statements,

contained all of “I gun,” have a do it now” “Just “Hurry up” today court utterances. The by Part I setting

commences out the full colloquy. It is clear that the district court statement,

acknowledged complete subject which had been the of statements prosecutor both the and defense attor ney, general ruling. but made the “[B]ut just don’t think that statement was the context in which it was made

warrants the two level enhancement under 2(b)(3)(1).”

Guideline It is evident the district court opinion erred. The court’s today clarifies the applicable rules to the utterance.

Jorge IBARRA-FLORES, Petitioner, GONZALES,* Attorney R.

Alberto General, Respondent.

No. 04-71554. Appeals, States Court of

Ninth Circuit. Argued May and Submitted Filed March * States, pre- pursuant Alberto R. Gonzales is substituted for R.App. his of the United to Fed. decessor, Ashcroft, 43(c)(2). Attorney John General P.