                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                     PUBLISH
                                                                          JUN 17 1997
                     UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                               Clerk
                                 TENTH CIRCUIT




 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                    No. 96-3360

 JAMES GUSTAV HOGAN,

          Defendant-Appellant.




                    Appeal from the United States District Court
                             for the District of Kansas
                              (D.C. No. 96-CR-40006)


Submitted on the briefs. *


Before BRORBY, EBEL and KELLY, Circuit Judges.


BRORBY, Circuit Judge.




      *
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
      On July 8, 1996, Mr. James Gustav Hogan pled guilty to one count of bank

robbery, in violation of 18 U.S.C. § 2113(a) (1994). In support of his guilty plea,

Mr. Hogan represented to the court that

      [o]n January 10, 1996, ... [he] did, by intimidation, unlawfully take
      from the person and presence of Shannon A. Mark money in the
      amount of $6,425.00, belonging to and in the care, custody and
      control on [sic] the Lyon County State Bank, Emporia, Kansas, an
      institution the deposits of which are insured by the Federal Deposit
      Insurance Corporation ....


      The presentence report calculated Mr. Hogan's total offense level at 21,

premised on a base offense level for robbery of 20, pursuant to USSG §2B3.1(a)

(1995); plus a two-level increase for robbery of a financial institution, pursuant to

USSG §2B3.1(b)(1)(A); a two-level increase for use of an express threat of death,

pursuant to USSG §2B3.1(b)(2)(F); and a three-level reduction for acceptance of

responsibility, pursuant to USSG §3E1.1(a), and (b)(1) and (2). The two-level

increase in his base offense level for an express threat of death was based on the

robbery note Mr. Hogan handed the bank teller, which read, "I have a gun. Pass

the money over fast. No dye packs or you die."



      At sentencing, the district court overruled Mr. Hogan's objections to the

two-level increase in his base offense level for making an express threat of death.

The district court found the language of the robbery note indistinguishable from


                                          -2-
an example of an express threat of death in the commentary to §2B3.1. The

district court also found the robbery note, coupled with Mr. Hogan's action of

keeping one hand in his pocket to give the impression he had a gun, "would

distinctly and directly indicate to a victim that the defendant intended to kill or

otherwise cause the death of the victim unless she cooperated." The court then

adopted the presentence report and sentenced Mr. Hogan to thirty-seven months

imprisonment.



      On appeal, Mr. Hogan challenges the two-level increase in his base offense

level for an express threat of death. Initially, Mr. Hogan contends the threat in

the robbery note was not an express threat of death as required by USSG

§2B3.1(b)(2)(F). Mr. Hogan primarily bases this contention on the fact that dye

packs are designed to "explode" at a later time and not while the robber is

receiving the money. Therefore, he argues, the victim would have to believe the

robber would return to kill her after the dye packs were discovered, which he

states is an unrealistic expectation. Mr. Hogan also argues the announcement of a

weapon does not constitute an express threat of death. Next, he contends the

government failed to present any evidence the victim was in "significantly greater

fear" for her life as a result of the statement in the robbery note than was inherent




                                          -3-
in the robbery itself. 1 We review the district court's legal interpretation and

application of the sentencing guidelines de novo. United States v. Lambert, 995

F.2d 1006, 1008 (10th Cir.), cert. denied, 510 U.S. 926 (1993).



      First, the district court looked to the examples of an "express threat of

death" in the guideline commentary and found Mr. Hogan's robbery note

indistinguishable. See USSG § 2B3.1, comment. (n.6). We agree. The language

used by Mr. Hogan is practically indistinguishable from the commentary example,

"Give me the money or you are dead." Id. "Commentary interpreting the

sentencing guidelines is binding on the federal courts unless it violates the

Constitution or a federal statute, or is inconsistent with the guideline it

interprets." United States v. Farnsworth, 92 F.3d 1001, 1007 (10th Cir.) (citing

Stinson v. United States, 508 U.S. 36, 44-45 (1993)), cert. denied, 117 S. Ct. 596

(1996). We find nothing in note six of the commentary to §2B3.1 that violates the

Constitution or a federal statute or that is inconsistent with the guideline itself.


      1
         Mr. Hogan also claims application of §2B3.1(b)(2)(F) is erroneous
because he did not actually possess a gun at the time of the robbery, but merely
kept his hand in his pocket to give the impression he had a gun. However, even
assuming Mr. Hogan did not have a gun, this fact does not affect the applicability
of §2B3.1(b)(2)(F). See United States v. Figueroa, 105 F.3d 874, 879 n.3 (3d Cir.
1997), petition for cert. denied, ___ S. Ct. ___, 1997 WL 221123 (U.S. May 27,
1997) (No. 96-8808); United States v. Murray, 65 F.3d 1161, 1167 (4th Cir.
1995). Subsections (A)-(E) of §2B3.1(b)(2) provide for greater enhancements in
cases where a weapon is actually present.

                                          -4-
See United States v. Robinson, 86 F.3d 1197, 1200 (D.C. Cir. 1996) ("Indeed, we

perceive no inconsistency at all between the robbery guideline and its

commentary."). But see United States v. Alexander, 88 F.3d 427, 431 (6th Cir.

1996) (commentary to §2B3.1 is inconsistent with plain reading of the guideline

and thus not controlling; rejecting the views of the Fourth, Seventh, Eighth and

Ninth Circuits). Thus, the commentary is binding. See Farnsworth, 92 F.3d at

1007. In fact, application note six of the commentary is a very helpful tool in

interpreting "an express threat of death." See USSG §2B3.1, comment. (n.6)

(listing examples of an express threat of death).



      Second, contrary to Mr. Hogan's assertion, there is nothing conditional or

indirect about the robbery note. A bank robber who unequivocally demands

money, states he has a gun, and informs the teller she will die if she does not

comply with his demands leaves nothing for the victim or the court to infer and,

thus, makes an express threat of death pursuant to §2B3.1(b)(2)(F). See United

States v. Moore, 6 F.3d 715, 721-22 (11th Cir. 1993) ("[T]he threat must be

directly and distinctly stated or expressed rather than implied or left to inference,

and the threat must be of death, or activity that would cause the victim to be in

reasonable apprehension of his or her life for section 2B3.1(b)(2)(F) to be

applicable." (Internal quotation marks omitted.)). "I have a gun. Pass the money


                                          -5-
over fast. No dye packs or you die." leaves nothing to infer. It is a clear and

direct threat and, thus, constitutes an express threat of death pursuant to

§ 2B3.1(b)(2)(F). See, e.g., Robinson, 86 F.3d at 1202 (defendant's statement

"Give me one pack of 20s or I'll shoot somebody in here now" constituted an

express threat of death); Lambert, 995 F.2d at 1008-09 (statement that teller had

ten seconds to put money in the bag or "the person behind me will shoot

someone" is an express threat of death); United States v. Strandberg, 952 F.2d

1149, 1151-52 (9th Cir. 1991) (upholding enhancement when defendant

commanded do not "pull the alarm or my friend will start shooting"). Cf. United

States v. Tuck, 964 F.2d at 1079, 1080 (11th Cir. 1992) (statement to teller after

she had put the money in the bag that "if she did anything funny he would be

back" did not constitute an express threat of death).



      Third, although this threat may be somewhat disingenuous, since Mr.

Hogan would have no way of knowing whether the teller gave him a bundle of

money secured by a dye pack until after he completed the robbery, there is no

requirement in §2B3.1(b)(2)(F) that the threat be realistic or actionable to be an

express threat of death. See USSG §2B3.1(b)(2)(F). It only requires the robber

make an express threat of death which places the victim in significantly greater




                                          -6-
fear than that necessary to constitute an element of the offense of robbery. USSG

§2B3.1, comment. (n.6); Robinson, 86 F.3d at 1202. See infra.



      Fourth, Mr. Hogan's assertion that the announcement of a weapon is not an

express threat of death misperceives the issue. In this case, the robbery note not

only announced the possession and presence of a weapon, it specifically directed

the clerk to hand over the money without any dye packs "or you die." We must

consider the robbery note or threat as a whole and not as unconnected individual

statements. Therefore, while Mr. Hogan may be correct that the announcement of

a weapon alone may be insufficient to constitute an express threat of death, that is

not our case. 2 Here, the robbery note contained the additional statement "No dye

packs or you die" which, as we held previously, is an express threat of death

pursuant to §2B3.1(b)(2)(F).


      2
         This court has not decided whether a statement that a defendant possesses
a gun, but which does not contain any threat to use the gun can support an
increase under §2B3.1(b)(2)(F). However, the circuits to have considered this
issue have reached divergent results. See, e.g., Figueroa, 105 F.3d at 879-80 ("I
have a gun. Give me all the money." is an express threat of death); Murray, 65
F.3d at 1166-67 ("Give me three stacks of $20's. Don’t give me a dye pack. I
have a gun pointed at you." constitutes an express threat of death). But see
Alexander, 88 F.3d at 428-31 ("I'VE A BOMB IN MY CASE AND A GUN.
STAY CALM DON’T TRIP YOUR ALARM AND HAND OVER THE 100, 50,
20, 10, NO ONE WILL BE HARM," does not warrant the two level enhancement
for an express threat of death); United States v. Canzater, 994 F.2d 773, 775 (11th
Cir. 1993) (per curiam) ("I have a gun, give me money" may imply threat to use
the gun, but was not an express threat of death).

                                         -7-
      Finally, we consider Mr. Hogan's assertion §2B3.1(b)(2)(F) requires the

threat place the victim in "significantly greater fear" than that associated with the

robbery itself. In the commentary to §2B3.1, the court is advised it

      should consider that the intent of [§2B3.1(b)(2)(F)] 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.

USSG §2B3.1, comment. (n.6). Therefore, in order to qualify for the

enhancement pursuant to §2B3.1(b)(2)(F), the robber must instill in the victim

"significantly greater fear than that necessary to constitute an element of the

offense of robbery." USSG §2B3.1, comment. (n.6). See Robinson, 86 F.3d at

1201-02; United States v. Jones, 83 F.3d 927, 929 (7th Cir. 1996) ("But the fact

that [the robber] may have actually been unarmed is of no consequence provided

he instilled in the tellers 'significantly greater fear'" (internal quotation omitted));

United States v. France, 57 F.3d 865, 867 (9th Cir. 1995) (robber's statement "I

have dynamite" was express threat of death because it would generate

"significantly greater fear" in reasonable victim).



      In Lambert, this Court considered the application of §2B3.1(b)(2)(F) where

an express threat of death was made by the defendant's accomplice. 995 F.2d at

1008-09. In reaching its conclusion, the Court noted that "[a]lthough coercion


                                           -8-
and at least implied threats are necessarily involved in the bank robbery offense,

express threats of death are not." Id. at 1008. Therefore, when a bank robber

makes an express threat of death, he or she exceeds the force and intimidation

necessary to perpetrate the robbery itself and places the victim in significantly

greater fear than that necessary for the robbery. See id.; Jones, 83 F.3d at 929.



      It is irrelevant the government did not present any evidence establishing the

victim's state of mind or whether she actually experienced a significantly greater

fear. The test for whether the enhancement applies is an objective one. The

commentary to §2B3.1 specifically directs the court to look at what a "reasonable"

victim would experience based on the defendant's conduct, not what the actual

victim experienced. USSG §2B3.1, comment. (n.6). See United States v.

Cadotte, 57 F.3d 661, 662 (8th Cir. 1995) ("Whether [the defendant] intended to,

or did, instill a fear of death in the teller is also immaterial. The enhancement

does not require a subjective finding of the defendant's intent in making the

threat, nor does it require an actual finding of the level of fear instilled by the

threat."), cert. denied, 116 S. Ct. 783 (1996); United States v. Hunn, 24 F.3d 994,

998 (7th Cir. 1994) (noting test for whether guideline enhancement applies is

objective).




                                           -9-
      Accordingly, we hold Mr. Hogan's robbery note constituted an express

threat of death and the district court properly applied USSG §2B3.1(b)(2)(F).

Therefore, the two-level enhancement for an express threat of death pursuant to

USSG §2B3.1(b)(2)(F) was appropriate.



      AFFIRMED.




                                       -10-
