Case Information
*1 Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Hervery B. O. Young, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. J. Strom Thurmond, Jr., United States Attorney, E. Jean Howard, Assistant United States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
PER CURIAM:
Michael Ellis Evans pled guilty to bank robbery, 18 U.S.C. § 2113(a) (2000), and was sentenced to a term of forty-six months imprisonment. Evans appeals his sentence, contending first that the district court erred in making a sentence enhancement for a threat of death, U.S. Sentencing Guidelines Manual § 2B3.1(b)(2)(F) (2003), and, second, that his sentence violated the Sixth Amendment under Blakely v. Washington, 542 U.S. 296 (2004). For the reasons explained below, we affirm the sentence.
Evans robbed a Bank of America in Greenville, South Carolina, by giving the teller a note that read, “I have a gun. Don’t make a sound, no die pack. Put the money on the counter. $100, $50, $20 packs. No alarm.” Following Evans’ guilty plea, the probation officer calculated a base offense level of 20, USSG § 2B3.1(a), adding a two-level enhancement for taking the property of a financial institution, USSG § 2B3.1(b)(1), and a two-level enhancement for a “threat of death.” USSG § 2B3.1(b)(2)(F). With a three-level reduction for acceptance of responsibility, USSG § 3E1.1, Evans’ final offense level was 21. He was in criminal history category II, which gave him a guideline range of 41-51 months. At sentencing, the district court overruled Evans’ objection to the enhancement for a threat of death, and imposed a sentence of forty-six months imprisonment.
On appeal, we find first that the enhancement for a threat of death was not error. Because the facts are not in dispute, we review de novo the district court’s legal determination that Evans’ statement to the teller constituted a threat of death. United States v. Franks, 183 F.3d 335, 337 (4th Cir. 1999) (district court’s legal interpretation of guideline terminology and application of guidelines to known set of facts are reviewed de novo).
A threat of death may be implied; the enhancement is
intended “for cases in which the offender(s) engaged in conduct
that would instill in a reasonable person, who is a victim of the
offense, a fear of death.” USSG § 2B3.1, comment. (n.6). Franks
held that statements that indicated that the robber had a gun and
was prepared to use it constituted a threat to shoot the teller if
she did not follow his instructions, which in turn amounted to a
threat of death.
Evans also contends that the district court’s finding
that he made a threat of death violated the Sixth Amendment.
Because Evans has raised the constitutional issue for the first
time on appeal, our review is for plain error. United States v.
Olano, 507 U.S. 725, 731-32 (1993); United States v. White, 405
F.3d 208, 215 (4th Cir. 2005). To establish that his sentence was
imposed in violation of the Sixth Amendment, Evans must show that
his sentence exceeded the maximum permitted based solely on the
facts he admitted. United States v. Booker ,
(2005); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).
Evans admitted taking the property of a financial
institution, a fact that was established by his guilty plea to the
charge that he robbed a bank. Although he did not admit that his
demand note constituted a threat of death, his sentence did not
exceed the maximum the court could have imposed based only on facts
he admitted, and may thus be affirmed. United States v. Evans, ___
F.3d ___,
Accordingly, we affirm the sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED