                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4958


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GORDON MILLER GOODWIN,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cr-00213-CCE-1)


Submitted:   October 22, 2013             Decided:   November 1, 2013


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


George E. Crump, III, Rockingham, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Greensboro, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Gordon    Miller    Goodwin         appeals      the   forty-seven       month

sentence       imposed    after    he     pled      guilty,      pursuant      to   a    plea

agreement, to one count of bank robbery, in violation of 18

U.S.C. § 2113(a) (2006).                On appeal, Goodwin argues that the

district       court     erred     in    imposing          a    two-level      enhancement

pursuant        to      U.S.     Sentencing              Guidelines     Manual       (USSG)

§ 2B3.1(b)(2)(F) (2011), because a threat of death was made.                               We

affirm.

               In effecting the robbery, Goodwin produced a note that

stated, among other things, that he possessed a gun.                                As the

teller was reading the note and collecting the money, Goodwin

made movements with his hands near his waist.                               The district

court found that the statement that Goodwin had a gun was a

threat    of     death   that     was    bolstered         by   the   movements     of    his

hands.         Goodwin    argues        that       the    district     court     erred    in

concluding that the statement “I have a gun” was a threat to use

the gun and in its finding that Goodwin’s motions at his waist

supported the threat.

               We review a sentence for procedural and substantive

reasonableness under an abuse of discretion standard.                               Gall v.

United States, 552 U.S. 38, 51 (2007).                          Miscalculation of the

Guidelines range is a significant procedural error.                            Id. at 51.

This     court       reviews     “de     novo       the     district     court’s        legal

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interpretation of guidelines terminology and its application of

the guidelines to a known set of facts.”                  United States v.

Franks, 183 F.3d 335, 337 (4th Cir. 1999).              The district court’s

factual findings are reviewed for clear error.             United States v.

Llamas, 599 F.3d 381, 387 (4th Cir. 2010).

            In Franks, the court affirmed an enhancement for a

threat of death based on a bank robber’s note that stated, “You

don’t have to give me all your cash.             No dye packs.       I have a

gun.    I have nothing to lose.”           Franks, 183 F.3d at 337.           The

court noted that a threat to shoot a teller is a threat of

death, and concluded that the note in question “can only be

meant to indicate that Franks is both armed and prepared to use

his gun.”      Id. at 338.      In rejecting Franks’ arguments, the

court   also    noted    that   the       Sentencing    Commission      amended

§ 2B3.1(b)(2)(F)    in   1997   by    deleting    the    requirement     of   an

“express” threat of death, and explained that the enhancement

applied to actions by the defendant that “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.”    Id. at 338-39.

            Goodwin acknowledges the holding in Franks, as well as

the court’s earlier decision in United States v. Murray, 65 F.3d

1161 (4th Cir. 1995), which also affirmed a threat of death

enhancement.     Goodwin   argues,     however,    that    his   note    merely

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stated that he possessed the gun, while the examples in the

Guidelines commentary and the note and statements in Franks and

Murray      include     critical    additional          language     that   evinced    a

willingness to use the gun if the robber’s demands were not

satisfied.         Goodwin’s       arguments           are    unavailing.       Courts

reviewing a threat of death enhancement have uniformly concluded

that a robber’s statement that he has a gun can justify the

enhancement.       United States v. Jennings, 439 F.3d 604, 610-11

(9th Cir. 2006) (collecting cases).                    The district court did not

err    in    finding    that    Goodwin’s       note    met   the    requirements     for

imposition of the enhancement.

              Goodwin also argues that the district court erred in

interpreting      his    hand    gestures       as     supporting     the   enhancement

because they essentially bolstered his statement that he had a

gun.        He asserts that the surveillance video shows that the

teller was not subjectively in fear of death because she asked a

customer to stop Goodwin because he had left his identification

at the teller window.              Goodwin does not dispute that he made

several movements with his hands in the area of his waist, but

merely      disagrees    with    the   district        court’s      interpretation     of

those movements as corroborating the statement in the note that

he had a gun.           However, Goodwin’s mere disagreement does not

establish that the district court clearly erred in its factual

finding.       Finally, Goodwin cites a Sixth Circuit decision and

                                            4
argues   that   the    video    presents     mitigating      circumstances    such

that the statement “I have a gun” in the note did not constitute

a threat of death.           United States v. Wooten, 689 F.3d 570 (6th

Cir. 2012).       Our review leads us to conclude that Wooten is

distinguishable, and that the totality of the circumstances of

the robbery did not dilute the threat stated by Goodwin’s note.

           Accordingly,         we   affirm    Goodwin’s       sentence.       We

dispense   with       oral    argument     because     the    facts   and    legal

contentions     are   adequately     presented    in    the   materials     before

this court and argument would not aid the decisional process.


                                                                        AFFIRMED




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