                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                                                         U.S. COURT OF APPEALS
                      ________________________             ELEVENTH CIRCUIT
                                                           SEPTEMBER 9, 2009
                             No. 09-10550                      THOMAS K. KAHN
                                                                   CLERK
                         Non-Argument Calendar
                       ________________________

                  D. C. Docket No. 07-00067-CR-AAA-2

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ROY ANTHONY PRUITT,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________

                           (September 9, 2009)

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:
       After pleading guilty, Roy Anthony Pruitt appeals his 78-month sentence for

bank robbery. After review, we affirm.

                                    I. DISCUSSION

       Pursuant to a written plea agreement, Pruitt pled guilty to bank robbery, in

violation of 18 U.S.C. § 2113(a). The government agreed not to object to a

recommendation that Pruitt receive an acceptance-of-responsibility reduction if he

“truthfully admits the conduct comprising the offense of conviction.”

       The Presentence Investigation Report (“PSI”) outlined the offense conduct

as follows. On October 1, 2007, Pruitt entered a SunTrust Bank branch located

inside a Publix supermarket in Brunswick, Georgia. Pruitt approached the bank

teller, Gabriel Jimenez, and handed him an envelope with a demand note, stating:

       Do not panic!

       This man is a pawn. We have his wife and child. He have been told
       to leave the package he carrying with you. There is 2 sets of eyes on
       you and him. Along with this letter place in envelope –

       1 pak of 100’s (10,000 Dollars)
       1 pak of 20’s + cash in drawer.

       No ink paks, tracking device or alarms for 10 minutes. Do not follow
       him.

       Cooperate or boom and bang! We are watching and listening.1


       1
       We quote the text from the copy of the demand note that was attached to the PSI
addendum. There are a few minor discrepancies between this language and the PSI’s recitation

                                              2
Jimenez filled the envelope with $5,375.01. Pruitt took the envelope and fled from

the SunTrust Bank on foot. In December 2007, Pruitt was arrested in South

Carolina and confessed to the bank robbery.

        Bank teller Rhonda Diggs was in close proximity to Jimenez and observed

Pruitt giving the envelope to Jimenez. According to Diggs, defendant Pruitt

verbally informed her and Jimenez that there were “black guys” watching them

who had driven him from Florida to rob banks. Defendant Pruitt stated that the

“black guys” were holding his family captive and were threatening to kill them if

he did not follow their commands. Pruitt also told Diggs and Jimenez that “if they

did not give him the money then ‘boom, you are dead.’” Jimenez also said Pruitt

“threatened several times that if [Jimenez and Diggs] did not cooperate they would

die.”

        The PSI calculated a base offense level of 20, pursuant to U.S.S.G.

§ 2B3.1(a). The PSI also applied (1) a two-level increase, pursuant to

§ 2B3.1(b)(1), because the property of a financial institution was taken, and (2) a

two-level increase, pursuant to § 2B3.1(b)(2)(F), because Pruitt made a threat of

death. The PSI recommended a two-level acceptance-of-responsibility reduction,

pursuant to U.S.S.G. § 3E1.1(a), but stated that the government had advised that it



of the demand note so we quote from the note itself.

                                                3
would not move for an additional one-level reduction, pursuant to § 3E1.1(b). This

resulted in a total offense level of 22.

      The PSI determined that Pruitt had a criminal history category of IV based

on eight criminal history points. First, the PSI calculated three points for Pruitt’s

1999 conviction for breach of trust. Second, the PSI calculated three criminal

history points based on a three-year sentence imposed in January 2008 upon

revocation of Pruitt’s state probation on a fraudulent check conviction. More

specifically, in June 2006, Pruitt was convicted in South Carolina for presenting a

fraudulent check and was sentenced to five years’ imprisonment, suspended during

probation. In February 2007, a state warrant was issued for Pruitt’s arrest due to

his failure to report, to pay a supervision fee and restitution, and to follow the

advice and instructions of the state probation officer. Thus, a state probation

warrant was issued before Pruitt’s October 1, 2007 bank robbery. In December

2007, Pruitt was arrested on that February 2007 probation violation warrant. In

January 2008, his state probation was revoked based on technical probation

violations, and he was sentenced to three years’ imprisonment on his fraudulent

check conviction.

      Finally, the PSI calculated two criminal history points because Pruitt

committed the instant bank robbery offense on October 1, 2007 while on his



                                            4
probation. Based on a total offense of 22 and a criminal history category of IV, the

PSI calculated an advisory guidelines range of 63 to 78 months’ imprisonment.

      Pruitt objected, inter alia, to the two-level threat-of-death enhancement and

to the criminal history category calculation. Before the sentencing hearing, the

government filed a memorandum stating, inter alia, that it would not move the

court to grant Pruitt an additional one-level reduction for acceptance of

responsibility under § 3E1.1(b) because he denied making any death threats to the

bank tellers.

      At the sentencing hearing in January 2009, Pruitt’s counsel reiterated his

objection to the PSI’s assertion that Pruitt verbally threatened the bank tellers. In

response, the government presented testimony from Federal Bureau of

Investigation Special Agent Mark Alig, who responded to the SunTrust Bank

robbery. Agent Alig stated that bank teller Jimenez said that “when he asked the

Defendant about the statement here, that cooperate or boom and bang, we are

watching and listening, Mr. Jimenez repeated that aloud and he said the Defendant

immediately said there are two black men inside this bank that are watching you

and there is one outside and if you do not cooperate, boom.” Agent Alig testified

that bank teller Diggs overheard Pruitt saying this. According to Agent Alig,




                                           5
Diggs and Jimenez repeated these threats to other officers at the scene of the bank

robbery and this was reflected in the officers’ supplemental reports.

      After Pruitt’s counsel objected that Agent Alig’s testimony was hearsay,

Alig testified that the tellers’ statements regarding Pruitt’s verbal death threat were

repeated and corroborated and that he had no reason to disbelieve them. However,

Agent Alig acknowledged that neither of the tellers mentioned Pruitt’s threat in the

internal reports they prepared for SunTrust Bank after the robbery. Agent Alig

also acknowledged that the officers’ supplemental reports did not say that Pruitt

said anyone was going to die or specify at whom the threat was directed.

      With respect to the contested PSI facts regarding the threats to the bank

tellers, the district court found that “the position of the probation officer is much

more credible than the evidence to the contrary by a preponderance” and expressly

adopted the probation officer’s factual account as stated in the PSI addendum. The

district court also stated that it concurred with the probation officer’s response to

Pruitt’s guidelines calculations. The district court adopted the PSI’s factual

findings and advisory guidelines calculations and sentenced Pruitt to 78 months’

imprisonment, the high-end of the applicable advisory guidelines range.

                                  II. DISCUSSION

A.    Threat-of-Death Enhancement



                                            6
       Pruitt argues that the district court erred by applying a two-level threat-of-

death enhancement under U.S.S.G. § 2B3.1(b)(2)(F).2 A defendant’s base offense

level is increased by two levels “if a threat of death was made.” U.S.S.G.

§ 2B3.1(b)(2)(F). The guidelines commentary explains this enhancement, as

follows:

     “A threat of death,” as used in subsection (b)(2)(F), 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. . . . 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 applying U.S.S.G. § 2B3.1(b)(2)(F), “[w]e do not

understand the robber’s intent to be determinative. It is the impact of his message

on reasonable hearers that is important.” United States v. Murphy, 306 F.3d 1087,

1089 n.1 (11th Cir. 2002).

       Here, we cannot say that the district court clearly erred in applying the two-

level threat-of-death enhancement in light of the demand note and Pruitt’s verbal

statements to the tellers. The demand note informed the teller that: (1) “There is 2

sets of eyes on you and [Pruitt],” (2) “We are watching and listening,” and (3)


       2
        This Court reviews a district court’s factual findings for clear error and its application of
the Sentencing Guidelines to those facts de novo. United States v. Phillips, 413 F.3d 1288, 1292
(11th Cir. 2005).

                                                  7
“Cooperate or boom and bang!” A reasonable bank teller would have received this

note and concluded: If I do not give the money requested, then there are two people

watching and listening who will either detonate a bomb or shoot me and I will die.

See Murphy, 306 F.3d at 1089 (concluding that a reasonable bank teller’s

interpretation of a note stating that the teller had ten seconds to hand the Defendant

all the money in the top drawer and that the Defendant had a gun was “If I do not

give this robber money within ten seconds, I will be shot; and people who are shot

often die.”). The fact that the demand note did not expressly state that Pruitt or the

two observers intended to kill the bank teller does not preclude this fact finding.

See U.S.S.G. § 2B3.1 cmt. n.6 (“[T]he defendant does not have to state expressly

his intent to kill the victim in order for the enhancement to apply.”). Nor does the

fact that the note warns “Cooperate or boom and bang!” instead of stating

expressly that Pruitt or the observers had a lethal weapon. See id. (providing as an

example of conduct constituting a threat of death “‘Give me your money or else

(where the defendant draws his hand across his throat in a slashing motion)’”).

      In addition, a reasonable bank teller would have interpreted the “boom or

bang” threat to be directed at the teller and the bank because the note advised that

there were “2 sets of eyes” watching to ensure that the teller cooperated with the




                                           8
note’s demands. At a minimum, a reasonable interpretation of the note was that

both the bank teller and Pruitt’s family were being threatened.

       Second, in addition to the demand note, there was evidence that Pruitt

verbally threatened tellers Jimenez and Diggs. Specifically, the PSI stated that

Pruitt told Diggs and Jimenez that “if they did not give him the money then ‘boom,

you are dead’” and “threatened several times that if [Jimenez and Diggs] did not

cooperate they would die.” According to Agent Agiz’s testimony at sentencing,

Pruitt told Jimenez that “there are two black men inside this bank that are watching

you and there is one outside and if you do not cooperate, boom,” and Driggs

overheard Pruitt saying this to Jimenez. After hearing Agent Agiz’s testimony and

Pruitt’s cross-examination, the district court found Agent Agiz’s testimony

regarding the threats to be credible. It was within the province of the district court

to make this credibility finding, and we will not disturb it.3 See United States v.

Glinton, 154 F.3d 1245, 1258-59 (11th Cir. 1998) (stating that “the appellate court

shall give due regard to the opportunity of the sentencing court to judge the

credibility of the witnesses” (internal quotation marks and brackets omitted)).



       3
         Furthermore, it was permissible for the district court to rely on hearsay in applying the
enhancement. See United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001) (stating that
a district court may rely on hearsay evidence at sentencing as long as the evidence has sufficient
indicia of reliability, the court makes explicit findings of fact as to credibility, and the defendant
has an opportunity to rebut the evidence).


                                                   9
B.     Criminal History Category

       Next, Pruitt challenges the district court’s calculation of his criminal history

category.4 First, Pruitt argues that the assigned three criminal history points for the

January 2008 sentence imposed upon revocation of his state probation was not a

“prior sentence” under U.S.S.G. § 4A1.1(a) because it was based on conduct that

was part of the instant offense. U.S.S.G. § 4A1.1(a) instructs the district court to

“[a]dd 3 points for each prior sentence of imprisonment exceeding one year and

one month.” U.S.S.G. § 4A1.1(a). The guidelines explain that “[a] sentence

imposed after the defendant’s commencement of the instant offense, but prior to

sentencing on the instant offense, is a prior sentence if it was for conduct other than

conduct that was part of the instant offense.” U.S.S.G. § 4A1.2 cmt. n.1.

       The January 2008 state sentence was imposed after Pruitt committed the

instant bank robbery in October 2007, but before he was sentenced for this bank

robbery offense in January 2009. Also, according to the PSI, the January 2008

state probation revocation and three-year sentence were based on a state probation

warrant for Pruitt’s arrest issued in February 2007 (which was several months

before the instant bank robbery) due to Pruitt’s failure to report, to pay a


       4
        We review a district court’s factual findings for clear error and its application of the
guidelines de novo. Phillips, 413 F.3d at 1292. We review de novo a claim of double counting.
United States v. Dudley, 463 F.3d 1221, 1226 (11th Cir. 2006).


                                               10
supervision fee and restitution, and to follow the advice and instructions of the

state probation officer. Pruitt admitted these facts in the PSI by not challenging

them in the district court. See United States v. Wade, 458 F.3d 1273, 1277 (11th

Cir. 2006) (“It is the law of this circuit that a failure to object to allegations of fact

in a PSI admits those facts for sentencing purposes.”). Furthermore, Pruitt’s

argument that, “[b]ecause the probation revocation occurred subsequent to the

[instant] offense, the likelihood that the revocation was based in large part on the

instant offense is substantial” is pure speculation. Thus, Pruitt’s January 2008 state

sentence satisfies the definition of a “prior sentence” in U.S.S.G. § 4A1.2(a).

       Second, Pruitt argues that it was impermissible double-counting for the

district court to award him criminal history points for both committing the instant

bank robbery offense while on state probation and for the January 2008 state

sentence imposed upon revocation of that state probation. Impermissible double-

counting occurs “when one part of the Guidelines is applied to increase a

defendant’s punishment on account of a kind of harm that has already been fully

accounted for by application of another part of the Guidelines.” United States v.

Phillips, 363 F.3d 1167, 1168 (11th Cir. 2004) (quotation marks omitted).

       Here, there was no double-counting because these two sets of criminal

history points were awarded for distinct reasons. Pruitt received two criminal



                                             11
history points for committing the instant bank robbery offense while on state

probation. See U.S.S.G. § 4A1.1(d) (instructing the district court to “[a]dd 2 points

if the defendant committed the instant offense while under any criminal justice

sentence, including probation”). Pruitt received three criminal history points for

the January 2008 sentence of three years’ imprisonment that was imposed upon

revocation of his probation. See U.S.S.G. § 4A1.1(a). The PSI addendum, which

the district court adopted, stated that: (1) the state probation revocation order

indicated that Pruitt’s probation was revoked based only on the technical violations

listed in the February 2007 probation warrant; and (2) South Carolina probation

officials confirmed that Pruitt’s October 2007 bank robbery did not serve as a basis

for the probation revocation. In any event, as also noted in the PSI addendum, the

Supreme Court has stated that post-revocation penalties are attributable to the

original conviction, not the offenses that caused the revocation. Johnson v. United

States, 529 U.S. 694, 700-01, 120 S. Ct. 1795, 1800-01 (2000). Thus, the three

criminal history points for his January 2008 three-year imprisonment sentence

were attributable to his 2005 state fraudulent check conviction, even if the bank

robbery was a basis for the revocation of Pruitt’s state probation.

      Finally, Pruitt argues that “the vagaries of the Court’s schedule” resulted in a

violation of his equal protection rights because he would not have received as



                                           12
many criminal history points if had he been sentenced for the instant bank robbery

offense before he was sentenced for violating his state probation. Because Pruitt

raises this argument for the first time on appeal, we review only for plain error.

United States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006).5 And because Pruitt

cites no case law from this Court or the United States Supreme Court that supports

this argument, he cannot show that any alleged error in this regard by the district

court was plain. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th

Cir. 2003).

C.      Acceptance-of-Responsibility Reduction

        Finally, Pruitt argues that the district court erred by failing to award him a

one-level acceptance-of-responsibility reduction, pursuant to U.S.S.G. § 3E1.1(b).6

“[U]pon motion of the government stating that the defendant has assisted

authorities in the investigation or prosecution of his own misconduct by timely

notifying authorities of his intention to enter a plea guilty,” the district court may



        5
         Under plain error review, we will reverse only if there was (1) an error, (2) that was
plain, (3) that affected substantial rights, and (4) the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Castro, 455 F.3d at 1253.
        6
         We generally review a denial of an acceptance-of-responsibility reduction for clear
error. United States v. Knight, 562 F.3d 1314, 1322 (11th Cir. 2009), petition for cert. filed,
(June 23, 2009) (No. 08-11096). However, because Pruitt did not object to the district court’s
failure to award him an additional one-level reduction, we review only for plain error. See
United States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006) (stating that this Court “review[s]
objections to sentencing calculation issues raised for the first time on appeal for plain error”).

                                                   13
award a defendant an additional one-level reduction for acceptance of

responsibility under § 3E1.1(b), so long as he qualifies for the two-level reduction

under § 3E1.1(a) and has an offense level of 16 or greater prior to the two-level

reduction. U.S.S.G. § 3E1.1(b). The guidelines commentary specifies that “an

adjustment under subsection (b) may only be granted upon a formal motion by the

Government at the time of sentencing.” U.S.S.G. § 3E1.1 cmt. n.6. The guidelines

require a motion from the government “[b]ecause the Government is in the best

position to determine whether the defendant has assisted authorities in a manner

that avoids preparing for trial.” Id.

      Here, the government did not move for an additional one-level acceptance-

of-responsibility reduction under § 3E1.1(b), and the district court thus declined to

award Pruitt the reduction. Pruitt cites this Court’s precedent stating that “once a

defendant is awarded a two-level reduction for acceptance of responsibility,

whether or not to grant the additional one-level reduction is a matter of

determining only whether the defendant timely provided information and notified

authorities of his intention to enter a plea of guilty.” United States v. McPhee, 108

F.3d 287, 289-90 (11th Cir. 1997); see also United States v. Johnson, 132 F.3d

628, 631-32 (11th Cir. 1998) (applying McPhee). However, McPhee and Johnson

were decided before § 3E1.1(b) was amended in 2003 to require that the



                                          14
government file a motion before the additional one-level reduction can be applied.

See U.S.S.G. App. C, amend. 649 (effective April 30, 2003). Thus, Pruitt’s

reliance on this Court’s precedent interpreting the pre-amendment version of §

3E1.1(b) is unavailing.

      Pruitt contends, however, that the government refused to file such a motion

in retaliation for his attorney’s pre-sentencing discovery requests. We have not

addressed previously whether, or to what extent, we may review the government’s

decision not to file a § 3E1.1(b) motion. In the related context of government

motions for U.S.S.G. § 5K1.1 substantial-assistance departures, we may review the

government’s decision not to file such a motion only for an unconstitutional

motive. United States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000) (citing Wade

v. United States, 504 U.S. 181, 112 S. Ct. 1840 (1992)); see also United States v.

Lapsins, 570 F.3d 758, 769 (6th Cir. 2009) (applying Wade to the § 3E1.1(b)

context and citing cases from other circuits doing the same). Even assuming

arguendo that the review framework for a § 5K1.1 motion applies here, there is no

record evidence that the type of unconstitutional motive contemplated by Wade

was involved here. Rather, the government’s sentencing memorandum stated that

it would not file a § 3E1.1(b) motion because Pruitt denied making death threats

during the bank robbery, despite his guilty plea. Pruitt’s assertion that the



                                          15
government refused to file the motion in retaliation for his requests for pre-

sentencing discovery is pure speculation.

                                III. CONCLUSION

      In conclusion, we affirm Pruitt’s 78-month sentence on his bank robbery

conviction.




                                            16
