                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                     FILED
                          ________________________         U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                               September 26, 2005
                                No. 05-10752                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                    D. C. Docket No. 04-00002-CR-RH-WCS

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                     versus

BENJAMIN EARNEST,
                                                            Defendant-Appellant.

                          ________________________

                  Appeals from the United States District Court
                      for the Northern District of Florida
                        _________________________
                             (September 26, 2005)



Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Benjamin Earnest appeals his 137-month sentence, imposed after he pled

guilty to thirteen counts of bank robbery and attempted bank robbery, in violation
of 18 U.S.C. § 2113(a).      According to the Presentence Investigation Report

(“PSI”), in the course of robbing a bank, Earnest handed a bank teller a note, which

read: “I have gun, do not alert anyone, give me all the money from the drawer

now.” At sentencing, the district court enhanced Earnest’s sentence, pursuant to

U.S.S.G. § 2B3.1(b)(2)(F), which provides for a 2-level offense level enhancement

“if a threat of death was made” during the robbery. See U.S.S.G. § 2B3.1(b)(2)(F).

      On appeal, Earnest argues that the written statement that he had a gun was

not an affirmative statement of intended deadly action, such that it would cause a

bank teller to have a fear of death. He urges us to reconsider and overrule our

decision in United States v. Murphy, 306 F.3d 1087 (11th Cir. 2002), in which we

held that a written note, given to a bank teller during a bank robbery and stating

that the defendant had a gun, constituted a “threat of death,” even though the

defendant made no express threat to use the gun, thereby supporting an

enhancement under § 2B3.1(b)(2)(F). See 306 F.3d at 1088-89. In a footnote in

Murphy, we specifically rejected the position, stated in the dissenting opinion in

United States v. Clark, 294 F.3d 791, 797 (6th Cir. 2002), which Earnest asserts we

should adopt here, that a robber’s intent is not determinative because “guns are

widely known to be capable of producing death.” 306 F.3d at 1089 n.1.

      Under our prior panel precedent rule, Murphy is the controlling law on the



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instant issue and we must follow it here. See United States v. Hogan, 986 F.2d

1364, 1369 (11th Cir. 1993) (“[I]t is the firmly established rule of this Circuit that

each succeeding panel is bound by the holding of the first panel to address an issue

of law, unless and until that holding is overruled en banc or by the Supreme

Court.”). Accordingly, we affirm Earnest’s sentence.

      AFFIRMED.




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