                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 03-4797



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MICHAEL ELLIS EVANS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-03-38)


Submitted:   July 29, 2005                 Decided:   August 16, 2005


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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.




                                       - 2 -
            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.        183 F.3d at 338 (noting that the statement, “I

have a gun.   Give me all the money,” was held to convey a threat of

death in United States v. Figueroa, 105 F.3d 874, 880 (3d Cir.

1997)).   In this case, Evans’ statement, “I have a gun.           Don’t make

a sound, no die packs.       Put the money on the counter.         $100, $50,

$20 packs. No alarm,” conveyed a similar threat to use the gun,

i.e., shoot the teller if she did not comply with his demands.                We

conclude that the district court did not err in deciding that Evans

made a threat of death within the meaning of § 2B3.1(b)(2)(F).


                                    - 3 -
          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, 125 S. Ct. 738, 756

(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 ___, 2005 WL 1705531, at *1 (4th Cir. July 22, 2005).           Evans

held that whether Sixth Amendment error occurred is determined by

considering what guideline range applies “based on the facts [the

defendant] admitted before adjusting that range for acceptance of

responsibility.”   Id. at *1 & n.4.      In this case, without the two-

level threat of death enhancement and before any reduction for

acceptance of responsibility, Evans’ offense level would have been


                                 - 4 -
22 instead of 21, and his guideline range would have been 46-57

months instead of 41-51 months. Evans’ 46-month sentence is within

the    guideline    range    that   would   have    applied   without    the

enhancement.       Therefore, we conclude that no Sixth Amendment

violation occurred.

           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




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