                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                       Revised July 1, 2003
                                                            January 6, 2003
              IN THE UNITED STATES COURT OF APPEALS
                                                        Charles R. Fulbruge III
                      FOR THE FIFTH CIRCUIT                     Clerk



                            No. 02-20384
                          Summary Calendar



UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

                                versus

JIMMY O. SOTO-MARTINEZ,

          Defendant-Appellant.



          Appeal from the United States District Court
               for the Southern District of Texas


Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

     This appeal presents the issue whether a defendant’s statement

that “I have a gun” during the commission of a bank robbery

constitutes a “threat of death,” thus warranting a two-level

increase in the offense level pursuant to U.S. Sentencing Guideline

§ 2B3.1(b)(2)(F).   We have not addressed this issue since the

amendment of the guideline in November 1997 removed a requirement

that the threat of death be “express.”    We now conclude that such

a statement may qualify as a “threat of death” and affirm the

sentence imposed by the district court.
      Jimmy O. Soto-Martinez (“Soto”) approached a bank teller with

a note that read: “I have a gun.               I just want money.        Start with

the $100.00.      Stay Quiet!!!”      When the teller replied that she did

not have any $100 bills, Soto told her to pass the note to the

other tellers.      After a second teller read the note, Soto stated,

“I want all your money.”          The second teller provided money, and

Soto then told a third teller to “hurry up” with her money.                      When

Soto left the bank, he also left behind the demand note that

eventually led to his arrest. Soto was charged by information with

bank robbery.1     He waived indictment and pleaded guilty without a

plea agreement.

      The    presentence     report    (“PSR”)        recommended    a    two-level

increase     in   Soto’s    offense     level       pursuant    to   guideline     §

2B3.1(b)(2)(F) because the demand note stated that Soto had a gun,

which the PSR explained “would instill a fear of death in a

reasonable person.”        The district court overruled Soto’s objection

to   the    increase,   finding    that       his   actions,   coupled    with    the

teller’s decision to “compl[y] with him after he told her that he

had a gun,” indicated that “there was a threat of death being made

by this defendant during the time of this robbery.”                  The district

court adopted the PSR and sentenced Soto to fifty-one months’

imprisonment.




      1
          18 U.S.C. § 2113(a).

                                          2
     This court reviews an application of the Sentencing Guidelines

de novo and reviews factual findings for clear error.2       Because the

facts of the robbery are undisputed, we review the application of

the two-level increase under § 2B3.1(b)(2)(F) de novo.3          Section

2B3.1(b)(2)(F) provides that “if a threat of death was made” during

the course of a robbery, the offense level is increased by two

levels.4    A “threat of death” may be “an oral or written statement,

act, gesture, or combination thereof.”5           The commentary gives

various examples of threats of death, including “Give me the money

or I will kill you,” “Give me the money or I will shoot you,” and

“Give me your money or else (where the defendant draws his hand

across his throat in a slashing motion).”6         The commentary also

states that the intent of § 2B3.1(b)(2)(F) 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.”7


     2
         United States v. Guerrero, 169 F.3d 933, 946 (5th Cir.
1999).
     3
       United States v. Gonzales, 40 F.3d 735, 740 n.14 (5th Cir.
1994) (applying de novo review to the district court’s application
of the guidelines to the undisputed fact that the defendant pointed
a gun).
     4
         U.S. SENTENCING GUIDELINES MANUAL § 2B3.1(b)(2)(F) (2001).
     5
         Id. cmt. n.6.
     6
         Id.
     7
         Id.

                                     3
      Soto’s note simply stated that he had a gun; he did not make

an express threat of death, and there is no indication that his

actions otherwise implied the actual presence of a gun.          However,

when considered together, Soto’s statements in the note that “I

have a gun” and “I just want money” are similar to the example in

the guideline commentary, “Give me the money or I will shoot you.”

The   only   difference   is   that   Soto’s   note   required   a   slight

inferential step: that if he were not provided with the money, he

would use the gun he claimed to have.8            Such an inference is

entirely reasonable, particularly amid the stress and tension of a

bank robbery. We conclude that a reasonable person, when presented

with a note demanding money and stating that the robber has a gun,

normally and reasonably would fear that his or her life was in

danger, and therefore the enhancement was not erroneous.9

      8
       See United States v. Jennette, 295 F.3d 290, 292 (2d Cir.
2002) (“Jennette’s statements to the teller – to give him the money
and that he had a gun – are equivalent to the Guideline’s model
statement “Give me the money or I will shoot you.”        The only
difference between the two statements is that Jennette's statements
required the teller to draw a single inference – that is, that
Jennette was willing to use the gun that he claimed to have, if the
teller did not comply with Jennette's demand. This is a very small
inferential step for a teller to make, particularly during the
confusion and understandable anxiety of a robbery.”).
      9
       This conclusion is consistent with the decisions of a
majority of the other circuits that have considered this question.
See, e.g., United States v. Murphy, 306 F.3d 1087, 1088-90 (11th
Cir. 2002) (“We conclude that, under the amended guideline, the
written note given to the bank teller that the defendant had a gun
constituted a "threat of death" even though no express threat to
use the gun was made.”); United States v. Winbush, 296 F.3d 442,
443 (6th Cir. 2002) (holding that “a robber's note saying ‘I have
a gun’ constitutes a threat of death under § 2B3.1(b)(2)(F)”

                                      4
     AFFIRMED.




because “[s]uch language would instill in any reasonable bank
teller a belief that a failure to comply with the robber’s
instructions would result in being fatally shot”); Jennette, 295
F.3d at 290-92 (“[W]e conclude that a reasonable teller, when faced
with a bank robber who demands money and states that he has a gun,
normally and reasonably would fear that his or her life is in
danger.”); United States v. Day, 272 F.3d 216, 218 (3d Cir. 2001)
(“Even when § 2B3.1(b)(2)(F) required an ‘express’ threat of death,
we held ... 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 [our prior holding], 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.”); United
States v. Gibson, 155 F.3d 844, 846-47 (7th Cir. 1998) (reasoning
that although every situation in which a defendant announces that
he has a gun may not constitute a threat of death, “[w]e think ‘a
reasonable teller would ordinarily experience a fear of being shot
when the robber confronting her announces he has a gun’”).

                                5
