On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 95-00504)
BEFORE: BECKER, MANSMANN, and GREENBERG, Circuit Judges
GREENBERG, Circuit Judge.
Submitted under Third Circuit LAR 34.1(a)
Appellant Juan Figueroa appeals from the sentence imposed by the district court after he pleaded guilty to bank robbery in violation of 18 U.S.C. Section(s) 2113(a). Figueroa argues that the district court erred by enhancing his offense level by two levels for an express threat of death under United States Sentencing Guideline Section(s) 2B3.1(b)(2)(F). We will affirm and hold that a written statement Figueroa presented to a bank teller during the robbery informing the teller that he possessed a gun constituted an express threat of death and subjected him to a 2-level enhancement under section 2B3.1(b)(2)(F).
1. Jurisdiction and Standard of Review
Figueroa was indicted for violation of 18 U.S.C. Section(s) 2113(a) and 18 U.S.C. Section(s) 2, and thus the district court had subject matter jurisdiction over this prosecution. We have jurisdiction under 28 U.S.C. Section(s) 1291 and 18 U.S.C. Section(s) 3742(a). A defendant may appeal a sentence imposed by a district court if the sentence "was imposed in violation of law [or] was imposed as a result of an incorrect application of the sentencing guidelines. . . ." 18 U.S.C. Section(s) 3742(a)(1) and (2). We exercise plenary review over the district court's interpretation and application of the Sentencing Guidelines. United States v. Hallman, 23 F.3d 821, 823 (3d Cir.), cert. denied, 115 S.Ct. 216 (1994). If, however, the district court's application of the Guidelines was based on factual analysis, we will reverse for clear error only. Id. In this case we regard the issue as involving the interpretation and application of the Guidelines so we exercise plenary review.
On April 24, 1995, Figueroa entered the Meridian Bank at 1470 East High Street in Pottstown, Pennsylvania, and approached a bank teller. His co-defendant, Marcellus Hammond, waited in a car outside the bank. Figueroa gave a note written by Hammond on a white napkin to the teller which read "I have a gun. Give me all the money." The note had some other writing to the effect that Figueroa needed a bag for the money. The teller gave Figueroa $2,379.00, and Figueroa left the bank.
On September 14, 1995, a grand jury indicted Figueroa for committing robbery against Meridian Bank in violation of 18 U.S.C. 2113(a) and 18 U.S.C. Section(s) 2. Figueroa entered a plea of guilty to violation of 18 U.S.C. Section(s) 2113(a) on October 5, 1995. On May 16, 1996, the district court sentenced Figueroa to 40 months imprisonment, five years supervised release, a $50.00 special assessment, and $2,379.00 in restitution. At the sentencing, Figueroa objected to the section 2B3.1(b)(2)(F) 2-level enhancement for an express threat of death. On May 20, 1996, Figueroa filed this appeal.
U.S.S.G. Section(s) 2B3.1 provides that the base offense level for robbery is 20. Subsection (b) then lists several offense characteristics for which the court should apply specific enhancements. Under section 2B3.1(b)(2)(F), "if an express threat of death was made [during the commission of the offense], increase by 2 levels." The commentary to the Guidelines further explicates, through illustration, the meaning of "express threat of death":
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 the 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.
This commentary is binding on a court unless it violates the Constitution or a federal statute, is inconsistent with the guideline, or clearly misinterprets the guideline. Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915 (1993). In this case none of these exceptions applies, ...