                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4799


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

NEAL ALVIN POWELL,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:11-cr-00139-RJC-1)


Submitted:   April 24, 2013                 Decided:   April 30, 2013


Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Henderson Hill, Executive Director, Joshua B. Carpenter, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant.      Anne M. Tompkins, United States
Attorney, William M. Miller, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Neal Alvin Powell pled guilty to three counts of bank

robbery, in violation of 18 U.S.C. § 2113(a) (2006), and was

sentenced to sixty-two months’ imprisonment.                            Powell appeals his

sentence, challenging the district court’s application of a two-

level    increase      in      his    offense       level   for    making    a    threat    of

death.       U.S.      Sentencing          Guidelines       Manual        § 2B3.1(b)(2)(F)

(2011).    We affirm.

            In each of the three robberies, Powell used a demand

note.     In the first robbery, the note said, “All of the money in

your cash Drawer Before I shoot Hurry.”                        In the second robbery,

the note said, ”Give me all the money or I’ll shoot hurry the

drawer $ ssh!!”           In the last robbery, the note said, ”Give me

your    money     in     the      cash     drawer     before      I     shoot.”     At     the

sentencing      hearing,          Powell    argued     that       the    threat   of     death

enhancement should not be applied because his threat was not an

explicit threat to kill and he did not make any gestures or take

any action that would have heightened the threat.                            Therefore, in

his view, his notes were unlikely to cause a fear of death.                                The

district court disagreed and decided that Powell’s notes would

cause a reasonable teller to fear death.                                On appeal, Powell

contends that the district court erred by failing to consider

the    totality     of      the      circumstances      before        deciding    that     the

enhancement applied.

                                                2
              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.

A threat to shoot a teller is a threat of death.                       United States

v. Franks, 183 F.3d 335, 337-38 (4th Cir. 1999).                    Generally, the

test is an objective one—whether the defendant’s statement would

“instill a fear of death in a reasonable victim—not the reaction

of the particular teller[.]”              United States v. Jennings, 439

F.3d 604, 613 (9th Cir. 2006); Franks, 183 F.3d at 338; United

States v. Gibson, 155 F.3d 844, 846 (7th Cir. 1998).                        However,

if mitigating circumstances are present, “the court must . . .

evaluate the overall circumstances of the robbery to determine

whether a reasonable teller in that particular scenario would

have perceived a threat of death.”              United States v. Wooten, 689

F.3d 570 (6th Cir. 2012); see also Jennings, 439 F.3d at 611;

Gibson, 155 F.3d at 847.

              Powell maintains that the district court should have

conducted an analysis of the totality of the circumstances in

his case and that, had it done so, it would have found the

enhancement     inapplicable.        He       contends     that    the    government

failed   to    bear   its   burden   of       proving    facts    to     support   the

enhancement      because    it   failed         to      prove     that    mitigating

circumstances were not present.               However, at sentencing, Powell

                                          3
himself     argued         to     the      court       that,          in     the     particular

circumstances of his case, the enhancement did not apply because

the bank teller could see that he was not going to harm anyone,

did not have a weapon, and made no threatening gestures.                                          In

this     appeal,      Powell        does         not       identify          any     mitigating

circumstances other than those already presented in the district

court.         Powell      argues        that       the     burden          of     proving       the

enhancement’s applicability cannot be shifted to the defendant.

However, a      similar         argument    that       Application           Note    3    to    USSG

§ 2D1.1 improperly shifts the burden of proof to the defendant

to   show   that     the    possessed       weapon         was    not       connected      to    the

offense has been rejected by this court and by other circuits.

See, e.g., United States v. Holmes, 81 F. App’x 467, 469-70 (4th

Cir. 2003) (No. 03-4306); United States v. Fudge, 325 F.3d 910,

922 (7th Cir. 2003) (rejecting claim of improper burden shifting

in   USSG   § 2D1.1(b)(1));             United      States       v.    Restrepo,         884    F.2d

1294, 1296 (9th Cir. 1989) (“The Due Process Clause does not

require that the government prove the absence of every possible

exception or mitigating circumstance”); United States v. McGhee,

882 F.2d 1095, 1097-99 (6th Cir. 1989) (same).

            Powell         also     argues          that     the           threat    of        death

enhancement requires more than intimidation, to which he admits,

because otherwise it would always be applicable where the crime

is   robbery    by   intimidation          under       18   U.S.C.          § 2113(a).          This

                                                4
argument fails because a robbery by force or intimidation can be

committed without threats of death.      Jennings, 439 F.3d at 612-

13.   The same is true in this case.

           We therefore affirm the district court’s judgment.       We

dispense   with   oral   argument   because   the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                              AFFIRMED




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