                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 26 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 99-4160
                                                    (D.C. No. 99-CR-130-C)
    MICHAEL PHILLIP SMITH,                                 (D. Utah)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , PORFILIO , and ANDERSON , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Following the filing of a four count amended indictment, appellant

Michael P. Smith pled guilty to one count of bank robbery in violation of



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
18 U.S.C. § 2113(a). He was sentenced to forty-one months’ imprisonment and

three years’ supervised release. In this appeal, he challenges the district court’s

application of a two point sentencing enhancement under USSG § 2B3.1(b)(2)(F).

We affirm.

       The four bank robberies underlying the indictment took place between

August 1998 and March 1999. In each instance, Mr. Smith approached a bank

teller and demanded that cash be placed in a bag which he provided. In one

incident, he handed the teller a note which read, “[n]o matter what the cops tell

you, do not hit the silent alarm for   10 minutes or bad things will happen. My

partner mustn’t even smell a cop for 10 mins. Don’t die for $$$.” Rec. Vol. II,

Complaint at 2.

       The issue presented here is whether, based on that note and other relevant

conduct included in the sentencing decision, the district court erred when it

assessed a two point enhancement under § 2B3.1(b)(2)(F). That provision allows

an enhancement where, during the commission of the robbery, “a threat of death

was made.” Mr. Smith maintains the notes and statements he used do not rise

to that level. We review the district court’s legal interpretation of this guideline

de novo. United States v. Lambert , 995 F.2d 1006, 1008 (10th Cir. 1993).

       Mr. Smith’s challenge has three distinct components. First, he maintains

the words and notes used during the robberies did not constitute threats of death


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under the guideline definition. Second, he argues the enhancement was improper

because he did not have the ability to carry out the harm. Finally, he maintains

the district court’s interpretation of the guideline subjects him to double counting

because a threatened use of force is already inherent in the base offense level for

robbery. We address these arguments in turn.

       The commentary to § 2B3.1 provides ample support for the district court’s

conclusion that the note used here satisfied the “threat of death” standard.

Commentary note 6 provides several examples which are substantially similar to

the “don’t die for $$$” note used in this case.    See USSG § 2B3.1, comment.

(n.6). In addition, this court has approved application of the enhancement in an

analogous factual scenario.       See United States v. Hogan , 116 F.3d 442, 443 (10th

Cir. 1997) (approving application of the enhancement where the threat provided:

“I have a gun. Pass the money over fast. No dye packs or you die.”). We

conclude the threat was sufficient to enhance under the guideline.      See USSG

§ 2B3.1, comment. (n.6) (noting that the defendant does not have to state his

intent to kill the victim in an express manner for the enhancement to apply).

       Mr. Smith also maintains that because he did not have the present intent or

ability to carry out the harm, application of the guideline was improper. “[T]here

is no requirement in § 2B3.1(b)(2)(F) that the threat be realistic or actionable to

be an express threat of death.”      Hogan , 116 F.3d at 444. We agree that no magic


                                             -3-
words are required to bring the threat within the proper ambit of the guideline.

Rather, the defendant is subject to the enhancement if the words used were “clear

and direct.” Id. Here, they were. Consequently, Mr. Smith’s argument is

unavailing.

       Finally, Mr. Smith argues the threats he used were no greater than those

which are inherent in the base offense level for robbery of a financial institution.

As a result, he urges it constituted double counting to add the enhancement under

§ 2B3.1. Double counting “‘occurs when the same conduct . . . is used to support

separate increases under separate enhancement provisions which necessarily

overlap, are indistinct, and serve identical purposes.’”     United States v. Blake , 59

F.3d 138, 140 (10th Cir. 1995) (quoting      United States v. Flinn , 18 F.3d 826, 829

(10th Cir. 1994)). It does not occur, however, if the predicates underlying the

base offense and the enhancement “involved two distinct acts and punished two

distinct harms.”   United States v. Pearson , No. 99-5143, 2000 WL 504862, at *2

(10th Cir. Apr. 28, 2000).

       We have already determined the notes Mr. Smith used constituted

express threats of death. That is the “‘added something’” which this court has

contemplated and justifies addition of the enhancement.        United States v. Fisher ,

132 F.3d 1327, 1329 (10th Cir. 1997) (quoting        United States v. Rosario , 7 F.3d




                                             -4-
319, 321 (2d Cir. 1993) (additional citation omitted)). Consequently, we reject

this argument as well.

      Accordingly, the judgment of the United States District Court for the

District of Utah is AFFIRMED.



                                                   Entered for the Court



                                                   Deanell Reece Tacha
                                                   Circuit Judge




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