UNITED STATES of America, Plaintiff-Appellant, v. Paul A. CARBAUGH, Defendant-Appellee.
No. 97-2311.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 13, 1997. Decided April 14, 1998.
Rehearing and Suggestion for Rehearing En Banc Denied June 30, 1998.
141 F.3d 791
ESCHBACH, Circuit Judge.
3. Illegal Sentence
Dreyer raises the point that his sentence is illegal in that the district court sentenced him to 60 months on Count One and an additional 602 months on the “stipulated offenses” to run consecutively. The stipulated offenses are the offenses that Dreyer stipulated to in the Presentence Investigation Report for purposes of sentencing—he has not pled guilty to them. The district court did not indicate that it intended a downward departure for Count One. The United States agrees that Dreyer was improperly sentenced to 60 months on the stipulated offenses—the entire 120 months should have been attributed to Count One. While this is most likely the case, we cannot know exactly what the district court‘s intentions were. We remand this case to the district court for resentencing consistent with the Guidelines.
For the foregoing reasons we STRIKE Gwiazdzinski‘s pro se motion and brief; we VACATE Dreyer‘s sentence and REMAND Dreyer‘s cause for the limited purpose of resentencing in accordance with this opinion; and we otherwise AFFIRM the decisions of the district court.
Andrea P. Taylor (argued), Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellee.
Before ESCHBACH, RIPPLE, and ROVNER, Circuit Judges.
ESCHBACH, Circuit Judge.
In this case the parties ask us to decide whether the words “I have a gun” constitute a “threat of death” for purposes of
On September 11, 1996, defendant entered a bank, placed a bag on the counter and declared, “This is a robbery.” The teller asked, “Are you for real?” Defendant responded, “This is a robbery. Put the money in the bag. I have a gun.” According to the teller, as the defendant announced that he had a gun, he also moved his hand toward his waist. The teller saw a bulge in the defendant‘s shirt near his waist and she thought the bulge was a gun. The defendant departed from the bank with a bag containing $2600. He was arrested shortly thereafter and pled guilty to bank robbery.
At sentencing, defendant admitted to saying, “I have a gun,” but denied making any downward gesture. Although the district judge invited the parties to address the factual dispute regarding the existence or nature of a gesture, neither party offered testimony on that point. The district court assumed, for purposes of sentencing, that the defendant made some downward gesture but concluded that the words, “I have a gun” plus the gesture fall short of an “express threat of death” under
The government, as the party seeking the enhancement, had the burden of proving the factual basis for the increase by a preponderance of the evidence. See United States v. Wyatt, 102 F.3d 241, 246 (7th Cir. 1996); United States v. Foutris, 966 F.2d 1158, 1160 (7th Cir.1992). Since the government declined to carry its burden, we assume that the defendant made no gesture. Accordingly, we must decide whether the words alone merit the enhancement.
Whether a robber‘s statement can constitute an express threat of death involves the legal interpretation of a sentencing guideline which we review de novo. See United States v. Jones, 83 F.3d 927, 929 (7th Cir.1996). If it can constitute a death threat, then we must decide whether the robber‘s statement constituted such a threat in this case. The latter issue is a fact question, which we review for clear error. “This court must give ‘due deference’ to the district court‘s application of the Guidelines to the
We address the legal question first—whether “I have a gun” can constitute a threat of death. Until November 1, 1997, the Sentencing Guidelines required a two-level enhancement for a robber who makes an express threat of death. The Circuits were split on the question whether an express threat of death must, in fact, be express. Compare United States v. Canzater, 994 F.2d 773, 775 (11th Cir.1993) (stating that the enhancement “is appropriate only when the threat of death is express, meaning directly or distinctly stated, and not when the threat is implied or left to inference“) with United States v. Robinson, 86 F.3d 1197, 1203 (D.C.Cir.1996) (“[W]e have concluded that express threats of death can be based on inferences.“). The majority of circuits have taken the latter approach. United States v. Figueroa, 105 F.3d 874, 877 (3d Cir.1997) (“The majority of the courts of appeals . . . have held that the defendant can make an express threat of death without explicitly threatening to kill the victim.“). Our Circuit has adopted the majority approach—implied threats of death fall within the meaning of the guideline. See United States v. Hunn, 24 F.3d at 994.
Effective November 1, 1997, the Sentencing Commission omitted the word “express” from the Guideline; the guideline now applies where there is simply “a threat of death.” The Commission also added a sentence to the commentary stating that “the defendant does not have to state expressly his intent to kill the victim in order for the enhancement to apply.”
Thus, an issue is raised whether to apply only the foregoing guideline or to consider the amended version as well. “[I]f a court applies an earlier edition of the Guidelines Manual, the court shall consider subsequent amendments, to the extent that such amendments are clarifying rather than substantive changes.”
No cases in our circuit are precisely on point. In United States v. Hunn, 24 F.3d at 994, the defendant entered a bank and handed the teller a note that read “This is a hold-up. I have a gun,” while keeping his right hand in a coat pocket, pointed at the teller. We held that the defendant had made an express threat of death because “a reasonable victim could understand Hunn‘s message loud and clear as a death-threat.” Id. at 998. Likewise, in United States v. Bomski, 125 F.3d 1115 (7th Cir.1997), the defendant placed a bag on the counter and said, “this is a bomb,” and “give me all of your money.” We held that the defendant had made an express threat of death.
The defendant‘s threat here poses a slightly different question than that raised by Hunn‘s gun and Bomski‘s bomb. In those cases, the defendant‘s statement was accompanied with a threatening gesture. In Hunn there was a finger pointed through a coat pocket,2 and in Bomski there was a purport-
In United States v. Jones, 83 F.3d 927, 929 (7th Cir.1996), the defendant entered a bank and stated “(1) that he had a gun, (2) that it was ‘no joke,’ (3) that the tellers were ‘not to pull any alarms,’ for if they did (4) ‘I‘ll use it.‘” Id. We held that these statements constituted an express threat of death because “Jones’ statements were sufficient to put a reasonable person in the teller‘s position in fear of death . . .”3 Id.
Carbaugh argues that his case is different than Jones because Carbaugh merely stated that he had a gun rather than threatening to use it. “I‘ll use it,” he claims, makes all the difference because it involves a statement of willingness inherent in a threat. At Carbaugh‘s sentencing hearing, the district court accepted this distinction:
In this case the defendant‘s statement that he had a gun without any other threatening statement, in my opinion, does not rise to the level of the threatening statement in Jones and Robinson. In both of those cases the bank robbers explicitly threatened to use their guns against the tellers if the tellers did not do what the robbers ordered.
In contrast, [Carbaugh] did not express any readiness or willingness to use his weapon against the teller. He simply stated that he had a gun.
Sentencing Tr. at 17.
We disagree with the district court‘s conclusion. A threat of death need not include a statement of readiness or willingness to use the gun. True, the statement “I have a gun,” when viewed grammatically is merely a declaration of possession. But we do not examine the statement grammatically, or even from the robber‘s perspective. Instead, the proper focus is on the perspective of the reasonable teller. See Hunn, 24 F.3d at 998 (stating that court “should apply an objective test, what a ‘reasonable’ victim would read from the robber‘s conduct“). If a robber makes this statement because he thinks it will increase the teller‘s level of fear, we agree with his assessment.4 A reasonable teller would ordinarily experience a fear of being shot when the robber confronting her announces he has a gun. Therefore, we hold that the statement “I have a gun” can constitute a threat of death under
Our conclusion accords with the Third Circuit‘s result in United States v. Figueroa, 105 F.3d 874 (3d Cir.1997). There, the court also held that a robber‘s note saying “I have a gun” constitutes an express threat of death. “Even if there is no 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.” Id. at 880.
Having determined that “I have a gun” can be a threat of death, we must now consider whether the statement is such a threat in this case. It is conceivable that unusual mitigating circumstances accompanying this statement could deprive the words of their plain meaning.
Here, the defendant placed a bag on the bank counter and declared, “This is a rob-
REVERSED AND REMANDED.
ILANA DIAMOND ROVNER, Circuit Judge, dissenting.
I must part ways with my two learned and esteemed colleagues today because I simply cannot agree that, as a matter of law, the defendant expressly threatened the bank teller with death by saying “I have a gun” without either doing or saying anything more. At the very least, I believe it was within the district court‘s discretion to conclude, on the facts before it, that Carbaugh‘s statement did not amount to an express threat to kill the teller.
When the district court sentenced Carbaugh last year, the robbery guideline mandated a two-level increase in the defendant‘s offense level “if an express threat of death was made.”
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 your 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.”
It certainly is the law of this circuit that the statement “I have a gun,” when coupled with additional words or conduct, can constitute an “express threat of death” for purposes of the robbery guideline. United States v. Hunn, 24 F.3d 994, 997-98 (7th Cir.1994); see also United States v. Jones, 83 F.3d 927, 929 (7th Cir.1996); United States v. Robinson, 20 F.3d 270, 276 (7th Cir.1994). Might “I have a gun,” standing alone, be sufficient to constitute an express threat of death? United States v. Bomski, 125 F.3d 1115, 1118 (7th Cir.1997), cert. denied, U.S. —, 118 S.Ct. 898, 139 L.Ed.2d 883, and cert. denied sub nom. Ferguson v. United States, U.S. —, 118 S.Ct. 1091, 140 L.Ed.2d 147 (1998), suggests that it can be.1 But Bomski cites Hunn for that proposition, and Hunn said nothing of the sort. As Judge Eschbach points out (ante at 793-94 n. 2), the fact that the bank robber in Hunn made a pointing gesture through the pocket of his coat when he said that he was armed was essential to the court‘s holding. See 24 F.3d at 997 (“We . . . hold that a bank robber‘s pointing his hand through his coat pocket, while claiming to have a gun, can be a sentence-enhancing, death-threat expression under the plain text of Guideline
What is perhaps more important to emphasize is that our precedents on this subject have never said that “I have a gun,” whatever the surrounding circumstances, invariably or even usually qualifies as an “express threat of death.” In Hunn, we took considerable care to say simply that the statement, coupled with a pointing gesture, might be a threat of death. See 24 F.3d at 997 (“We . . . hold that a bank robber‘s pointing his hand through his coat pocket, while claiming to have a gun, can be a sentence-enhancing, death-threat expression under the plain text of Guideline
None of the accompanying circumstances noted in our previous “I have a gun” cases was present here. Carbaugh did not threaten to use the gun, nor is there proof in the record that he made any kind of gesture that
Judge Alesia was careful to note the distinctions between this case and its predecessors. In contrast to both Jones and Robinson, Carbaugh “did not express any readiness or willingness to use his weapon against the teller” (Sentencing Tr. 17); “[h]e simply stated that he had a gun” (id.). Hunn, too, presented a distinct set of circumstances:
In Hunn the robber warned the teller not to pull any tricks, that he was watching, as he pretended to point a gun at the teller. Those words and conduct clearly were intended to make the teller think that he had a gun trained on her and that if she pulled any tricks, quote, unquote, she would be shot.
In this case, in contrast, the defendant simply stated he had a gun but did not otherwise warn or threaten the teller, and he did not act as if he had a gun pointed at the teller.
Sentencing Tr. 18. Judge Alesia acknowledged that Carbaugh‘s conduct may have constituted an implied threat to the teller, but in his view it did not constitute an “express” threat—it was not “clear,” “definite,” “explicit,” “plain,” “direct” or “unmistakable.” Sentencing Tr. 20, citing BLACK‘S LAW DICTIONARY 580 (6th ed.1990). He noted that Judge Williams had reached the same conclusion based on similar facts in United States v. Springer, No. 96 CR 478, 1997 WL 160755 (N.D.Ill. April 4, 1997).
Granting Judge Alesia‘s careful analysis the due deference to which it is entitled, I do not see where it is that he erred. My colleagues emphasize that a robber‘s declaration that he is armed increases the teller‘s fear of death. Ante at 794. Again, I do not disagree. But does that statement represent an express threat of death, designed to instill in the victim a significantly greater fear than that usually attending robbery? See Application Note 6. Even if we accept that “I have a gun” can be construed as an express threat, I cannot accept that it must be so construed as a matter of law, which is essentially what my colleagues appear to be saying. See ante at 795 (“we have no doubt that Carbaugh‘s statement would cause a reasonable teller to fear death“).
The effect of the court‘s holding is to read “express” out of the guideline. That is a step our prior cases never purported to take. We have never said anything more than what common sense tells us—that a death threat can be expressed through a variety of words and gestures, not just by saying “I will kill you.” Today, however, the court holds that the threat need not be expressed in any fashion, so long as the teller could infer that her life is in danger. With all due respect to my esteemed colleagues, I cannot reconcile that approach with the plain language of the pre-amendment version of the guideline.
The court‘s holding might well be defensible under the new version of the guideline, which notably omits the requirement that the threat be “express.” The amended version, however, did not take effect until several months after the district court sentenced Carbaugh. My colleagues indicate that we need not consider whether the revision is substantive (in which case we would look solely to the pre-amendment version) or clarifying (in which case we could look to the amended version for guidance), because the amendment simply adopts the prior view of this circuit. Ante at 793; see
The Sentencing Guidelines have greatly complicated the task of sentencing judges. It is not at all unusual for judges to be faced with multiple disputes over the application of various sentencing enhancements and reductions in one case. Resolving such disputes may require briefing from the parties, hours of legal research, and in some cases lengthy evidentiary hearings. Looking at the record in this case, I am impressed with the care that Judge Alesia took in addressing the issue before us. In announcing his ruling, he reviewed the language of the guideline and the commentary, he surveyed our precedents on the subject, and then he methodically outlined his reasons for concluding, under the particular circumstances of this case, that Carbaugh‘s declaration that he possessed a gun was not sufficient to convey an express threat of death. Sentencing Tr.15-21. His holding was not categorical; he did not suggest that “I have a gun” could never be construed as a death threat for purposes of the guideline. Instead, he simply considered Carbaugh‘s statement in context and concluded that under the circumstances it did not reasonably convey a threat to kill. We owe Judge Alesia‘s thoroughly reasoned application of the guideline “due deference,”
With the utmost respect to my two colleagues, I therefore dissent.