           Case: 15-12248   Date Filed: 04/19/2016   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-12248
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:15-cr-00001-CDL-MSH-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus


FREDRICK WORRILLS,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Georgia
                     ________________________

                             (April 19, 2016)

Before MARTIN, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Fredrick Worrills appeals his 78-month prison sentence, which was imposed

after he pleaded guilty to one count of bank robbery in violation of 18 U.S.C.

§ 2113(a). Worrills argues that the district court erred by applying a two-level

enhancement for making a “threat of death” during the robbery. United States

Sentencing Guidelines § 2B3.1(b)(2)(F). First, Worrills asserts that his statement

that he had a gun would not instill a fear of death in a reasonable person on these

facts. Second, Worrills contends that this enhancement amounted to impermissible

double counting because a “threat of death,” as we have construed that term, is

inherent in every bank robbery. After careful consideration, we affirm Worrills’s

sentence.

                                           I.

      Worrills robbed a bank after he discovered that his account there was

overdrawn. Around midday on December 17, 2014, Worrills visited a Bank of

America branch and tried to make a withdrawal. The teller informed Worrills that

his account had a negative balance and that he would need to deposit $381 to have

it reactivated. Worrills declined to do so and left.

      Two hours later, Worrills returned to the bank. He approached the same

teller with a deposit slip in one hand and his other hand out of sight, possibly in the

pocket of his hoodie. Worrills said to the teller, “I’ve got a gun, just give me the

money.” The teller later reported that she could tell from Worrills’s demeanor that


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he wasn’t joking. Worrills then handed over the deposit slip, on which he had

written, “Give me all your money, I’ve got a gun.” In these circumstances, the

teller was “placed [] in fear” and surrendered $3,764 to Worrills. Worrills left the

bank. On December 26, 2014, he turned himself in. During questioning, he denied

that he had a gun during the robbery.

                                          II.

      We review a district court’s application and interpretation of the Guidelines

de novo. United States v. Murphy, 306 F.3d 1087, 1089 (11th Cir. 2002) (per

curiam). We also review de novo whether an enhancement constitutes double

counting. United States v. Kapordelis, 569 F.3d 1291, 1315 (11th Cir. 2009).

      A two-level sentencing enhancement applies when a “threat of death” was

made during a robbery. USSG § 2B3.1(b)(2)(F). The defendant need not

expressly threaten to kill the victim; engaging in any conduct “that would instill in

a reasonable person . . . a fear of death” is sufficient. Id. § 2B3.1, cmt. n.6. This

Court has held that statements to the effect of “I have a gun” support a threat-of-

death enhancement. See Murphy, 306 F.3d at 1089. This is because “[a]

reasonable bank teller given [such a note] would reasonably have this reaction: ‘If I

do not give this robber money . . . , I will be shot; and people who are shot often

die.’” Id.




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      Double counting occurs “when one part of the Guidelines is applied to

increase a defendant’s punishment on account of a kind of harm that has already

been fully accounted for by application of another part of the Guidelines.” United

States v. Dudley, 463 F.3d 1221, 1226–27 (11th Cir. 2006) (quotation omitted).

However, double counting is permitted if the Sentencing Commission intended the

result and each section is conceptually separate. Id. at 1227. “Absent a specific

direction to the contrary, we presume that the Sentencing Commission intended to

apply separate sections cumulatively.” Kapordelis, 569 F.3d at 1315.

                                         III.

      The district court did not err by applying the threat-of-death enhancement.

The test is whether Worrills’s conduct would instill a fear of death in a reasonable

person in the teller’s circumstances. See Murphy, 306 F.3d at 1089. Verbally and

in a demand note, Worrills ordered the teller to give him money and stated that he

had a gun. The teller could not see one of Worrills’s hands because he kept it

below the counter. She reported that this conduct “placed her in fear . . . , which

caused her to then provide the money.” Under this Court’s precedent, such

conduct was sufficient to support a threat-of-death enhancement. See id.

      Worrills argues that mitigating circumstances made it unreasonable for the

teller to fear death—namely, she recognized him as a customer from his earlier

visit. Worrills bases this “mitigating circumstances” theory on two out-of-circuit


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cases. In these cases, the Sixth and Seventh Circuits recognized a “rare,”

“unusual” exception to the general rule that statements to the effect of “I have a

gun” support a threat-of-death enhancement. United States v. Wooten, 689 F.3d

570, 576 n.3 (6th Cir. 2012); United States v. Gibson, 155 F.3d 844, 847 (7th Cir.

1998). When “unique factual circumstances . . . prevent[] the case from fitting the

standard [threat-of-death] mold,” this exception may apply. Wooten, 689 F.3d at

576 n.3.

      In Wooten, the exception applied because: (1) the defendant was calm,

placed both hands on the bank counter, and seemed to be joking; (2) the robbery

did not include “hallmarks of experienced bank robbers” like a demand note or a

mask; and (3) the teller reported that he never felt threatened or afraid. Id. at 572–

73, 578–79. Even if we were to adopt this exception, it would not apply here

because no mitigating circumstances are present: Worrills kept one hand out of

sight, had a serious demeanor, used a demand note, and frightened the teller. The

fact that Worrills was a customer with an overdrawn, inactivated account does not

mitigate his threat. If anything, it amplifies his threat because it shows he was

desperate for money.

      Nor did the district court err by rejecting Worrills’s claim of double

counting. Bank robbery is defined as taking from a bank, credit union, or savings

and loan association “by force and violence, or by intimidation.” 18 U.S.C.


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§ 2113(a). Making a “threat of death” is not included as an element of the offense.

See id. Bank robbery triggers a base offense level of 20, to which the threat-of-

death enhancement is separately added. USSG § 2B3.1(a), (b)(2)(F). Worrills

argues that his method of intimidating the teller (saying he had a gun) was “the

least dangerous or consequential way” to get the money—nothing less serious

would have worked. Thus, Worrills claims, his intimidating conduct was an

inherent part of bank robbery, and using it to enhance his sentence is impermissible

double counting.

      We reject Worrills’s contention that making a threat of death, as we have

construed that term, is inherent in every bank robbery. Worrills minimizes the

effect of his words when he argues that threatening the teller with a gun was “the

only way that [] Worrills could reasonably expect the teller to comply with his

demand.” There are surely less dangerous or consequential ways to get the money

from tellers, who are typically trained not to offer resistance. Because threatening

victims with death goes beyond mere intimidation, “[t]he harm at which the

[threat-of-death] enhancement is aimed is conceptually distinct from the harm that

[Worrills’s robbery] caused.” Dudley, 463 F.3d at 1227. This conclusion is

bolstered by the presumption that the Sentencing Commission intends to apply

separate sections cumulatively. See Kapordelis, 569 F.3d at 1315.

      For these reasons, we affirm Worrills’s sentence.


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AFFIRMED.




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