                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                     September 12, 2005
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 04-5123
v.                                            (Northern District of Oklahoma)
                                                  (D.C. No. 04-CR-35-K)
MARTIN SHANE YOHO,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


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

determined unanimously to grant the parties’ request for a decision on the briefs

without oral argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is,

therefore, ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the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.
I.    INTRODUCTION

      Defendant-appellant Martin Shane Yoho pleaded guilty to bank robbery and

interference with interstate commerce, along with aiding and abetting each of

these offenses, in violation of 18 U.S.C. §§ 2, 1951, and 2113(a). The district

court sentenced Yoho to 100 months’ imprisonment and three years’ supervised

release. Yoho now appeals his sentence, arguing that the district court erred in

imposing both a two-point sentencing enhancement based on an alleged death

threat and a three-point enhancement for possession of a weapon during a robbery

offense. Yoho also asserts that he must be resentenced in light of the Supreme

Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005). Exercising

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms

Yoho’s sentence.

II.   BACKGROUND

      On March 1, 2004, Yoho, along with co-defendant Michael Cazzell, robbed

QuikTrip, a convenience store located in Tulsa, Oklahoma. Yoho entered the

store and “implied [he] had a weapon” by keeping his hand in his pocket. The

store employee gave Yoho $174. Later that same day, the two men robbed Gold

Bank in Tulsa. While Cazzell waited in a vehicle outside, Yoho entered the bank

and handed a note to a teller. The note read, “Give me all of the 100s and 50s. I

have a gun.” The teller complied and handed Yoho approximately $2300.


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      Yoho was charged by superseding indictment on April 13, 2004, and

subsequently entered a guilty plea. After calculating Yoho’s sentence under the

United States Sentencing Guidelines (“U.S.S.G.”), the presentence report (“PSR”)

recommended a sentencing range of 92 to 115 months. This was based on a

criminal history category of VI and a final adjusted offense level of twenty-three.

The base offense level for the robbery count was twenty, which was enhanced by

two levels because the property of a financial institution was taken. U.S.S.G.

§ 2B3.1(b)(1). 1 An additional two-level increase was applied because a threat of

death was made during the bank robbery. Id. § 2B3.1(2)(F). The two

enhancements resulted in an adjusted offense level of twenty-four. The base

offense level for interference with interstate commerce was twenty. Id. § 2B3.1.

This was enhanced three levels because Yoho possessed a weapon during the

robbery of the convenience store, yielding an adjusted offense level of twenty-

three. Id. § 2B3.1(b)(2)(E). Pursuant to § 3D1.4, the multiple-count adjustment

provision of the Guidelines, the greatest adjusted offense level (twenty-four) was

enhanced two levels, resulting in a combined adjusted offense level of twenty-six.

A three-level reduction was applied for acceptance of responsibility, producing a

final adjusted offense level of twenty-three. Id. § 3E1.1.




      Because Yoho was sentenced under the 2003 edition of the United States
      1

Sentencing Guidelines Manual, all Guidelines citations are to the 2003 edition.

                                         -3-
       Yoho objected to two of the sentencing enhancements contained in the

PSR. He argued that the statement “I have a gun,” without more, is not a threat of

death sufficient to justify the enhancement. Yoho also contended that the

sentencing enhancement for possession of a weapon was not warranted by the

facts of his case. Yoho further asserted that neither enhancement was appropriate

in light of the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct.

2536 (2004), because the facts were not admitted by Yoho nor found beyond a

reasonable doubt by a jury. The district court overruled Yoho’s objections and

sentenced him to 100 months’ imprisonment, the middle of the applicable

Guidelines range.

III.   DISCUSSION

       A.    Application of the Sentencing Guidelines

       “When reviewing a district court’s application of the Sentencing

Guidelines, we review legal questions de novo and we review any factual findings

for clear error, giving due deference to the district court’s application of the

guidelines to the facts.” United States v. Doe, 398 F.3d 1254, 1257 (10th Cir.

2005) (quotation omitted).

       Yoho challenges the district court’s application of a two-level enhancement

for an alleged death threat, arguing that simply stating “I have a gun” is not




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legally sufficient to support the enhancement. The Guidelines specify that a

threat of death

      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
      the 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 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. § 2B3.1, cmt. n.6. In analyzing the threat-of-death enhancement under

§ 2B3.1(b)(2)(F), this court has recognized that “a reasonable teller would

ordinarily experience a fear of being shot when the robber confronting her

announces he has a gun.” United States v. Arevalo, 242 F.3d 925, 928 (10th Cir.

2001) (citing United States v. Carbaugh, 141 F.3d 791, 794 (7th Cir. 1998)

(holding that the statement “I have a gun” is a “threat of death”)); see also United

States v. Jennette, 295 F.3d 290, 292-93 (2d Cir. 2002) (collecting cases). The

statement “I have a gun” is therefore sufficient to justify imposition of the threat-

of-death enhancement. Accordingly, the district court did not err when it applied

the two-level enhancement under U.S.S.G. § 2B3.1(b)(2)(F) to increase Yoho’s

base offense level.


                                          -5-
       In his appellate brief, Yoho asserts, in one short sentence, that “the

enhancement of 3 points in reference to possessing a weapon under the facts of

this case would not be appropriate or supported by the facts.” The failure to

provide any argument or legal authority to support his claim, is insufficient to

invoke appellate review. See Eateries, Inc. v. J.R. Simplot Co., 346 F.3d 1225,

1232 (10th Cir. 2003). Even if we were to reach the issue, however, any potential

error in applying the enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(E) would

be harmless because it had no effect on the calculation of Yoho’s sentence. See

Williams v. United States, 503 U.S. 193, 203 (1992) (“[O]nce the court of appeals

has decided that the district court misapplied the Guidelines, a remand is

appropriate unless the reviewing court concludes, on the record as a whole, that

the error . . . did not affect the district court’s selection of the sentence

imposed.”).

       B.     United States v. Booker

       During the pendency of Yoho’s appeal, the Supreme Court decided United

States v. Booker in which the Court held that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” 125 S.

Ct. at 756. Because the district court did not rely on judge-found facts to


                                            -6-
mandatorily enhance Yoho’s sentence, the district court committed only non-

constitutional Booker error by applying the Guidelines in a mandatory, as opposed

to an advisory, fashion. 2 See United States v. Gonzalez-Huerta, 403 F.3d 727,

731-32 (10th Cir. 2005) (en banc) (discussing two types of Booker errors).

Yoho’s objection under Blakely v. Washington, 124 S. Ct. 2531 (2004), preserved

his Booker argument and we review for harmlessness. See Fed. R. Crim. P. 52(a);

United States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005). In

non-constitutional Booker errors such as this, “the government bears the burden

of demonstrating, by a preponderance of the evidence, that the substantial rights

of the defendant were not affected.” United States v. Glover, 413 F.3d 1206,

1210 (10th Cir. 2005).

      We have no difficulty concluding that the government has satisfied its

burden. Given that the district court utilized its limited pre-Booker discretion to

sentence Yoho to the middle of the applicable Guidelines range, there is no reason

to think that the district court would have imposed a lesser sentence had it had the

opportunity to do so. See United States v. Riccardi, 405 F.3d 852, 876 (10th Cir.

2005) (applying harmless error analysis to constitutional Booker error). Indeed,



      2
        Yoho admitted all of the underlying facts supporting application of the
threat of death enhancement and the weapon enhancement had no effect on his
sentence. See United States v. Yazzie, 407 F.3d 1139, 1144-45 (10th Cir. 2005)
(en banc).

                                         -7-
at sentencing, the district court said, “A sentence is imposed at this range because

of the defendant’s extensive criminal history. It’s not a higher sentence because

his crimes have consisted primarily of property crimes. It is a sufficient sentence,

though, for these crimes. . . . I think a sentence toward the middle is appropriate

in this case.” After reviewing the record, the statements of the district court, and

the court’s decision to sentence Yoho in the middle of the applicable Guidelines

range, we conclude that the sentencing error was harmless.

IV.   CONCLUSION

      For the reasons set out above, the sentence imposed by the district court is

AFFIRMED.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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