                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-28-2001

USA v. Day
Precedential or Non-Precedential:

Docket 01-1684




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Recommended Citation
"USA v. Day" (2001). 2001 Decisions. Paper 277.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/277


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Filed November 28, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1684

UNITED STATES OF AMERICA

v.

ROGER LEE DAY,
       Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. Nos. 00-cr-00701-1 and 01-cr-00037-1)
District Judge: Hon. Eduardo C. Robreno

Submitted Under Third Circuit LAR 34.1(a)
October 30, 2001

Before: SLOVITER, NYGAARD, and AMBRO,
Circuit Judges

(Filed: November 28, 2001)

       ROBERT P. FULTON, ESQUIRE
       150 South Easton Road
       Glenside, PA 19038

       Counsel for Appellant
       MICHAEL L. LEVY
       United States Attorney
       ROBERT A. ZAUZMER
       Assistant United States Attorney,
        Chief of Appeals
       BERNADETTE MCKEON
       Assistant United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106

       Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge:

Roger Lee Day appeals the enhancement of his sentence
for bank robbery under the United States Sentencing
Guidelines ("U.S.S.G."). Pursuant to a plea agreement, Day
pled guilty before the District Court for the Eastern District
of Pennsylvania to two counts of bank robbery. At
sentencing, the District Court adopted the recommendation
in the presentence investigation report that Day's sentence
be enhanced two levels because he made a "threat of death"
while committing the robberies. U.S.S.G. S 2B3.1(b)(2)(F).1
This threat consisted of Day's passing notes to tellers at the
banks he robbed that read, "Put some money on the
counter. No dye packs. I have a gun." The District Court
heard arguments on the appropriateness of this
enhancement and concluded that the enhancement was
warranted under this Court's holding in United States v.
Figueroa, 105 F.3d 874 (3d Cir. 1997). In Figueroa, the
defendant used a note that read in relevant part,"I have a
gun. Give me all the money." Id. at 876.

In this appeal, Day argues that Figueroa does not apply
to this case because the Sentencing Guidelines in effect at
that time required an "express threat of death" while the
_________________________________________________________________

1. U.S.S.G. S 2B3.1(b) addresses specific offense characteristics for
robbery. Subsection 2B3.1(b)(2)(F) states in full:"[I]f a threat of death
was made, increase by 2 levels."

                               2
Guideline has since been amended to require only a"threat
of death." He contends that the removal of the word
"express" somehow narrowed the scope of this provision
and that the Commentary supports this interpretation. We
disagree and thus affirm Day's sentence.

I. Jurisdiction and Standard of Review

We have jurisdiction over this appeal under 28 U.S.C.
S 1291 and 18 U.S.C. S 3742(a). Section 3742(a) provides
that a "defendant may file a notice of appeal in the district
court for review of an otherwise final sentence if the
sentence . . . (2) was imposed as a result of an incorrect
application of the sentencing guidelines . . . ." Our review
of the District Court's application and interpretation of the
Sentencing Guidelines is plenary. United States v. Hallman,
23 F.3d 821, 823 (3d Cir. 1994).

II. Discussion

Day concedes that, if not for a 1997 amendment to the
Sentencing Guidelines, his case appears "strikingly similar"
to Figueroa.2 The amendment to which he refers took effect
on November 1, 1997. It deleted the word "express" from
the phrase "express threat of death," modified the
accompanying Commentary to acknowledge that either an
explicit or implicit threat would suffice, and slightly altered
the Commentary language to explain the provision's intent
to raise the offense level in cases in which the offender
instills in a reasonable victim a fear of death. 3
_________________________________________________________________

2. Prior to the amendment, U.S.S.G. S 2B3.1(b)(2)(F) read: "[I]f an
express
threat of death was made, increase by 2 levels."

3. The Commentary, as amended, provides as follows:

       "A 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. Accordingly, the defendant does not have to state
expressly
       his intent to kill the victim in order for the enhancement to
apply.
       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

                               3
The only question we must answer is whether this
amendment to U.S.S.G. S 2B3.1(b)(2)(F) subsequent to
Figueroa could have invalidated that case. We conclude, to
the contrary, that by removing the word "express" from the
enhancement criteria, the Sentencing Commission did no
more than clarify its approval of the result reached in
Figueroa and similar cases decided by our sister courts of
appeals.

Even when S 2B3.1(b)(2)(F) required an "express" threat of
death, we held in Figueroa that the exact words "I have a
gun" would suffice to trigger a two-point sentence
enhancement. Day argues, however, that under the
amended Guideline, in which the word "express" has been
removed, the same words somehow no longer qualify as a
threat of death. This argument does not make sense. The
deletion of the word "express" plainly broadened the
Guideline rather than narrowed it. Even if, contrary to
Figueroa, the words "I have a gun" did not constitute an
express threat of death, under the current Guideline
language they would still qualify for the enhancement
because they are an implicit threat of death. We thus agree
with the Seventh Circuit's decision in United States v.
Gibson, 155 F.3d 844 (7th Cir. 1998), which held that the
words "I have a gun" can constitute a threat of death under
the amended Guideline provision. Id. at 847.

Notably, we already anticipated this case in the Figueroa
opinion. At that time, we reached the obvious conclusion
that our result would be the same -- in fact, it would be
even more clearly correct -- under the amended Guideline.
We wrote that

       [w]hile we do not doubt that our result is correct under
       section 2B3.1(b)(2)(F) and the commentary as it is now
_________________________________________________________________

       draws his hand across his throat in a slashing motion)", or "Give
me
       the money or you are dead" would constitute a   threat of death. The
       court should consider that the intent of this   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, a fear of death.

U.S.S.G. S 2B3.1(b)(2)(F), cmt. n.6 (2001).

                                4
       written, we take note of the circumstance that the
       United States Sentencing Commission has proposed an
       amendment to the commentary to make clear that the
       Commission's intent has been in accord with the
       majority position we now are joining.

Figueroa, 105 F.3d at 880. Likewise, the dissent in Figueroa
argued that the word "express" in the Guideline indicated
that it could not apply to an implicit threat such as "I have
a gun," but that after the proposed amendment took effect,
that difficulty would disappear. Id. at 881-82. That
amendment passed exactly as we anticipated, and we see
no reason now to reach a different result than the one we
predicted.

The primary argument that Day offers for his
interpretation is that the explanatory comment
accompanying the amendment demonstrated the
Sentencing Commission's intent to depart from Figueroa.
He points out in particular that the explanatory comment
does not explicitly approve Figueroa but does refer to other
cases, namely United States v. Robinson, 86 F.3d 1197
(D.C. Cir. 1996) (finding an express threat of death where
appellant had only used a note stating, "Give me a pack of
20s or I will shoot somebody in here now."), and United
States v. Murray, 65 F.3d 1161 (4th Cir. 1995) (finding an
express threat of death where the defendant stated,"Give
me three stacks of $20s. Don't give me a dye pack. I have
a gun pointed at you . . . . You think I'm playing?"). In
addition, he notes that the explanatory comment refers to
the "combination of the defendant's actions and words" as
the basis for an enhancement. Our examination of the
explanatory comment, however, shows Day's argument to
be unconvincing.4
_________________________________________________________________

4. The text of the explanatory comment reads:

       This amendment addresses a circuit court conflict regarding the
       application of the "express threat of death" enhancement in S 2B3.1
       (Robbery). The amendment adopts the majority appellate view which
       holds that the enhancement applies when the combination of the
       defendant's actions and words would instill in a reasonable person
       in the position of the immediate victim (e.g., a bank teller) a
greater
       amount of fear than necessary to commit the robbery. See, e.g.,

                               5
In the first place, even if the Commission's explanatory
comment had made it into the Commentary itself (which it
did not), we would not be required to follow it to the extent
it conflicts with or misinterprets the Guideline. Stinson v.
United States, 508 U.S. 36, 38 (1993). In this case, a
reading of the amendment that barred implicit threats of
death (which "I have gun" surely is to the extent that it is
not explicit) would flatly contradict the language of
S 2B3.1(b)(2)(F) itself.

Second, and more importantly, nothing in the
explanatory comment suggests a rejection of Figueroa. On
the contrary, the comment states that the amendment
adopts the "majority appellate view," which is also the view
we adopted in Figueroa. See Figueroa, 105 F.3d at 878-79
("[I]n light of the commentary's direction to consider the
effect of the threat upon the reasonable victim, we find the
reasoning of the Courts of Appeals for the Fourth, Seventh,
Eighth, Ninth, Tenth, and District of Columbia Circuits
more persuasive."). The majority appellate position provides
that whether a threat of death is express depends in part
on the perception of the reasonable recipient of the threat
rather than solely on whether the perpetrator made an
explicit threat to kill the victim. Id. at 877. We agree that
the explanatory comment did not mention Figueroa , but
that hardly means that it rejected it. Likewise, the
references to Robinson and Murray as examples of adequate
threats of death do not undermine the validity of Figueroa.
The threat in Figueroa may have been less explicit, but
nowhere does the Commentary provide that Robinson and
Murray represent the only examples of language that would
qualify for the enhancement. On the contrary, we cited
_________________________________________________________________

       United States v. Robinson, 86 F.3d 1197, 1202 (D.C. Cir. 1996)
       (enhancement applies if (1) a reasonable person in the position of
       the immediate victim would very likely believe the defendant made
       a threat and the threat was to kill, and (2) the victim likely
thought
       his life was in peril); United States v. Murray , 65 F.3d 1161,
1167
       (4th Cir. 1995) ("any combination of statements, gestures, or
actions
       that would put an ordinary victim in reasonable fear for his or her
       life is an express threat of death").

U.S.S.G. app. C, Amendment 552 (1997).

                               6
approvingly to both Robinson and Murray   in the Figueroa
opinion. Figueroa, 105 F.3d at 877.

Third, and finally, Day incorrectly emphasizes the
language referring to "words and actions" in the

explanatory comment. The Commission's examples plainly
demonstrate that the robber need not use both words and
actions to communicate a threat of death. See, e.g.,
Robinson, 86 F.3d at 1198 (finding an express threat of
death where appellant used only a note); Murray , 65 F.3d
at 1166 (finding an express threat of death where the
defendant only orally threatened to use his gun). Moreover,
the Commentary itself sanctions words alone as enough by
providing that " `[a] 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." U.S.S.G.
S 2B3.1(b)(2)(F), cmt. n.6. There is thus no merit to Day's
argument that a threat of death requires both words and
actions together.

III. Conclusion

The 1997 amendment to the Sentencing Guidelines on
which Day relies did not alter our holding in Figueroa. If
anything, the amendment only reaffirmed the outcome in
that case. In this context, Figueroa applies almost exactly to
the facts before us, and thus the judgment of the District
Court is affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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