United States v. Burns

Opinion

USCA1 Opinion

                    UNITED STATES COURT OF APPEALS

                         FOR THE FIRST CIRCUIT


No. 98-1271



                       UNITED STATES OF AMERICA,



                               Appellee,



                                  v.



                           THOMAS J. BURNS,



                         Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                   FOR THE DISTRICT OF MASSACHUSETTS



              [Hon. Patti B. Saris, U.S. District Judge]


Before



                         Lynch, Circuit Judge,



                      Cyr, Senior Circuit Judge,



                       and Lipez, Circuit Judge.


Miriam Conrad for appellant.

     Robert E. Richardson, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.


November 20, 1998

                                                       CYR, Senior Circuit Judge.  Defendant Thomas J. Burns

challenges the two-point sentencing enhancement imposed upon him by

the district court pursuant to USSG  2B3.1(b)(2)(F) (1995) for

having made "express threat[s] of death" during two separate bank

robberies.  We affirm.

                                I

                            BACKGROUND

          Burns robbed the banks in the spring of 1997, on each

occasion handing the teller a note warning: "I have a gun!  Don't

make me use it."  After the government charged Burns with two

counts of bank robbery, see 18 U.S.C.  2113(a), the parties

arrived at a plea agreement whereby the government promised to

refrain, "at sentencing," from recommending that Burns receive the

two-level enhancement under  2B3.1(b)(2)(F) for making "express

threat[s] of death" during the robberies.  Although the government

abided by its agreement, the district court nevertheless elected to

impose the two-level enhancement.

                                II

                            DISCUSSION

A.   The Scope of the Plea Agreement

          Before addressing the merits, we turn to Burns' motion to

strike the government's brief on appeal.  Burns insists that the

government cannot be heard to contend on appeal that the district

court correctly imposed the very sentencing enhancement which the

government, pursuant to the plea agreement, agreed to refrain from

recommending "at sentencing," see Plea Agreement  3.

          We acknowledge concerns regarding the government's

ambivalence, especially since a commonsense understanding of the

language of the plea agreement itself offers little hint that the

parties mutually contemplated that the government remained free to

advocate a two-level enhancement on appeal.  As we repeatedly have

made clear, moreover, "[b]ecause plea bargaining requires

defendants to waive fundamental constitutional rights, we hold

prosecutors engaging in plea bargaining to 'the most meticulous

standards of both promise and performance.'"   United States v.

Velez-Carrero,  77 F.3d 11, 11 (1st Cir. 1996) (citation omitted).

See United States v. Clark, 55 F.3d 9, 12 (1st Cir. 1995); Correalev. United States, 479 F.2d 944, 947 (1st Cir. 1973).  We think the

message is clear, therefore, that significant plea-agreement terms

should be stated explicitly and unambiguously so as to preclude

their subsequent circumvention by either party.  See United Statesv. Canada, 960 F.2d 263, 269 (1st Cir. 1992) (noting that the

government not only is forbidden from any "explicit repudiation of

[its] assurances," but from "end-runs around them"); United Statesv. Garcia, 698 F.2d 31, 37 (1st Cir. 1983) ("'A plea agreement is

not an appropriate context for the Government to resort to a

rigidly literal approach in the construction of language.'")

(citation omitted).  Thus, defense counsel too must be alert to the

need for clear and explicit articulation of all pertinent terms in

any plea agreement negotiated with government counsel.

          In the instant case, however, it is not necessary to

determine whether the government breached its plea agreement, as we

would be obliged in all events to consider whether the district

court correctly imposed the sentencing enhancement at issue in this

case, with or without the benefit of the government's advocacy on

appeal.  Accordingly, we now turn to the language of 

2B3.1(b)(2)(F), which we construe de novo.  See United States v.

Nicholas, 133 F.3d 133, 134 (1st Cir. 1998).

B.   USSG  2B3.1(b)(2)(F)

          Burns argues that the notes handed to the bank tellers ÄÄ

expressly threatening to use a gun ÄÄ were not "express threat[s]

of death" for purposes of  2B3.1(b)(2)(F) because they fairly

could be interpreted simply to imply an intention to use a gun to

fire warning shots or to shoot only to wound, rather than to kill. 

The applicable guidelines section provided:

          (A) If a firearm was discharged, increase [the

          base offense level] by 7 levels; (B) if a

          firearm was otherwise used, increase by 6

          levels; (C) if a firearm was brandished,

          displayed, or possessed, increase by 5 levels;

          (D) if a dangerous weapon was otherwise used,

          increase by 4 levels; (E) if a dangerous

          weapon was brandished, displayed, or

          possessed, increase by 3 levels; or (F) if an

          express threat of death was made, increase by

          2 levels.



USSG  2B3.1(b)(2) (emphasis added).



          The courts of appeals which have considered the issue to

date ascribe two conflicting interpretations to the pivotal

guideline phrase "express threat of death."  Seven circuits

presently hold that the defendant need not have expressed in words

or actions an intention "to kill," provided the words or actions

employed were such as to place the victim in objectively reasonable

fear for his or her life.  See United States v. Figueroa, 105 F.3d

874 (3d Cir.), cert. denied, 117 S. Ct. 1860 (1997); United Statesv. Murray, 65 F.3d 1161 (4th Cir. 1995); United States v. Carbaugh,

141 F.3d 791 (7th Cir. 1998); United States v. Tolen, 143 F.3d 1121

(8th Cir. 1998); United States v. France, 57 F.3d 865 (9th Cir.

1995); United States v. Lambert, 995 F.2d 1006 (10th Cir. 1993);

United States v. Robinson, 86 F.3d 1197 (D.C. Cir. 1996).

          These decisions rely on guideline commentary squarely in

point here:

          An "express 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.  For example, an oral or

          written demand using 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

          defendant draws his hand across his throat in

          a slashing motion)", "Give me your money or you

          are dead" would constitute an express threat of

          death.  The court should consider that the

          intent of the underlying 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, significantly

          greater fear than that necessary to constitute

          an element of the offense of robbery.



USSG  2B3.1, comment. (n.6) (1995) (emphasis added).  Importantly,

these courts accord the quoted commentary deference as a reasonable

interpretation of  2B3.1(b)(2)(F) by the United States Sentencing

Commission.  "The Commission, after all, drafts the guidelines as

well as the commentary interpreting them, so we can presume that

the interpretations of the guidelines contained in the commentary

represent the most accurate indications of how the Commission deems

that the guidelines should be applied to be consistent with the

Guidelines Manual as a whole as well as the authorizing statute." 

Stinson v. United States, 508 U.S. 36, 45 (1993).

          Two other courts of appeals have held that the term

"express" contemplates nothing less than that the defendant have

unambiguously declared, either through words or unambiguous

conduct, that he intends to kill the victim.  See United States v.

Alexander, 88 F.3d 427 (6th Cir. 1996); United States v. Moore, 6

F.3d 715 (11th Cir. 1993).  Citing one common definition of the

adjective "express" ÄÄ "[d]irectly and distinctly stated or

expressed rather than implied or left to inference," Alexander, 88

F.3d at 430 (emphasis added) ÄÄ these courts hold that Application

Note 6 cannot control the interpretation of  2B3.1(b)(2)(F)

because Note 6 focuses on the victim's reasonable perceptions, thus

is inconsistent with the guideline language itself, which focuses

exclusively on the literal wording of the threat.  See Stinson, 508

U.S. at 38  ("[C]ommentary in the Guidelines Manual that interprets

or explains a guideline is authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with, or a

plainly erroneous reading of, that guideline.") (emphasis added);

United States v. Damon, 127 F.3d 139, 145 n.7 (1st Cir. 1997)

(same).  Thus, declarations such as "I have a gun," or even "I will

use my gun," are not to be considered "express threats of death"

because the victim necessarily must supply the ultimate inference

that the defendant means to shoot to kill, not merely to wound.  We

opt for the majority view. 

          Before sentencing guideline language and its related

commentary may be deemed mutually inconsistent, the court must

determine that "following one will result in violating the dictates

of the other."  Stinson, 508 U.S. at 43.  Although the adjective

"express" commonly connotes "[d]irectly and distinctly stated or

expressed rather than implied or left to inference," in the

alternative it may simply mean something which is perceived as"clear" and "unambiguous."  See Figueroa, 105 F.3d at 877 (citing

Robinson, 86 F.3d at 1200).  Thus construed,  2B3.1(b)(2)(F)

focuses not upon the criminal defendant's subjective intent as

expressed through the literal language of the threat, but upon the

likely inferences which the victim reasonably might draw in the

circumstances.  Moreover, nothing in the term "express" itself

remotely compels the conclusion that Congress intended the most

restrictive interpretation of  2B3.1(b)(2)(F).  Consequently, even

if we were inclined to interpret the term "express" differently than

the Commission, we would defer to the guideline commentary because

the term "express" reasonably is construed in context as synonymous

with "perceived as clear and unambiguous."

          The Sentencing Commission gloss on  2B3.1(b)(2)(F) goes

well beyond the merely plausible, however; it is an eminently

sensible assessment of the likely legislative intent.  The

commentary instructs that "[t]he court should consider 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, significantly greater fear than that necessary to

constitute an element of the offense of robbery."  See USSG 

2B3.1, comment. (n.6) (1995) (emphasis added).

          The offense of robbery contemplates simply that the

defendant have subjected his victim to minimal levels of fear or

"intimidation."  See 18 U.S.C.  2133(a).  Courts generally evaluate

levels of "intimidation" under an objective standard:  whether a

reasonable person in the same circumstances would have felt coerced

by a threat of bodily harm.  See, e.g., United States v. Henson,

945 F.2d 430, 439-40 (1st Cir. 1991); see also United States v.

Askari, 140 F.3d 536, 541 (3d Cir. 1998) (en banc); United Statesv. Woodrup, 86 F.3d 359, 363-64 (4th Cir. 1996); United States v.

Foppe, 993 F.2d 1444, 1451 (9th Cir. 1993). 

          Section 2B3.1(b)(2) identifies six settings, in

descending order of seriousness, wherein a defendant will be found

to have engaged in something more than mere "intimidation," so as

to enhance the actual or perceived risk to the victim.  SeeLambert, 995 F.2d at 1008 ("Although coercion and at least implied

threats are necessarily involved in the bank robbery offense,

express threats of death are not.").  Thus, the Sentencing

Commission determination to interpret "express threat of death"

under an objective, reasonable-person standard, rather than the

subjective standard advocated in Alexander and Moore, supra,

comports with the standard for assessing "intimidation" under 18

U.S.C.  2113(a).  The remaining question, then, is whether the

notes Burns passed to the tellers came within the definition of

"express" contained in the guideline commentary.

          We would be loathe to hold that a reasonable bank teller

ÄÄ presented with a demand for money stating:  "I have a gun! 

Don't make me use it." ÄÄ would be unlikely to infer that the

robber was announcing his readiness to use the gun.  Moreover, even

assuming that quibbles as to whether the robber meant to shoot to

kill, or merely to wound, are likely to occur at all to a teller

actually confronted by a bank robber, they simply do not represent

distinctions of compelling weight under an "objective

reasonableness" standard.  As the Third Circuit has observed, "[i]n

the calmer atmosphere of a sentencing colloquy, the[se] different

wordings may seem significant; however, in the tense environment of

a bank robbery, the differences are truly only semantic and

negligible."  Figueroa, 105 F.3d at 878.  See United States v.

Hunn, 24 F.3d 994, 998 (7th Cir. 1994) (requiring that defendant

say "I will kill you" "discounts real-world uncertainties").

          In our judgment it is highly probable that an objectively

reasonable person, confronted by Burns' threat to "use" the gun he

claimed to possess unless the teller turned over the money, would

draw little comfort from any surmise concerning whether Burns

actually had a gun; whether he really meant to use it; and, if so,

whether he intended merely to wound rather than kill absent

compliance.  Thus, the coercive power Burns brought to bear in

these robberies far exceeded the minimal level of "intimidation"

required under 18 U.S.C.  2133(a), see supra.  See, e.g.,

Robinson, 86 F.3d at 1202 ("[A] reasonable teller receiving a note

from a bank robber would very likely infer that 'shoot' means

'kill'."); United States v. Jones, 83 F.3d 927, 929 (7th Cir. 1996)

(noting:  when defendant states he has a gun and will use it,

"[w]hy would anyone want to assume that he was merely a liar or a

bluffer?").

                               III

                            CONCLUSION

          We therefore conclude that the Sentencing Commission

gloss on  2B3.1(b)(2) in Application Note 6 warrants due deference

as a plausible interpretation by the agency entrusted by Congress

with the responsibility to administer the guidelines and that the

Burns threats in this case came within the definition of "express

threat" adopted by the Commission.

          Affirmed.

                  - Dissenting opinion follows -



  LYNCH, Circuit Judge, dissenting.  I respectfully dissent

from the well-crafted majority opinion, joining instead the

reasoning of the Eleventh Circuit in United States v. Tuck, 964

F.2d 1079 (11th Cir. 1992), of the Sixth Circuit in United Statesv. Alexander, 88 F.3d 427 (6th Cir. 1996), of Judge Easterbrook,

dissenting in United States v. Hunn, 24 F.3d 994 (7th Cir. 1994),

of Judge Becker, dissenting in United States v. Figueroa, 105 F.3d

874 (3d Cir.), cert. denied, 117 S. Ct. 1860 (1997), and of Judge

Arnold, dissenting in United States v. Cadotte, 57 F.3d 661 (8th

Cir. 1995).  Given the forceful and clear expressions of the

rationale in those opinions, I add only a few words.

  The issue is whether a note, handed by the defendant bank

robber to a teller, constitutes an "express threat of death."  The

note read: "I have a gun!  Don't make me use it."  No gun was seen

or otherwise gestured to, so the issue entirely turns on the words

of the note.  If the note is an express threat, then an additional

two levels, or a range of 14 to 18 months, were properly added by

the district court to the sentence.

  The common definition of an "express" threat is a threat

which is "definitely and explicitly stated,"  The American Heritage

Dictionary (2d College ed. 1985), or "distinctly stated or

expressed rather than implied or left to inference,"  Webster's

Third New International Dictionary 803 (1993), or "clear; definite;

explicit; unmistakable; not dubious or ambiguous," Black's Law

Dictionary 691 (4th ed. 1951).  By any common understanding of the

term "express threat of death," this note was not such a threat.

  Nevertheless, the majority and several other circuits are

persuaded by the commentary to the Guidelines, as the majority

opinion skillfully explains.  But the Commission in the guise of

commentary is not free to change the meaning of the Guidelines, seeStinson v. United States, 508 U.S. 36, 43 (1993), and that, on the

facts of this case, is what is happening here.  As Chief Justice

John Marshall said almost one hundred and eighty years ago:  "Where

there is no ambiguity in the words, there is no room for

construction. The case must be a strong one indeed, which would

justify a Court in departing from the plain meaning of words,

especially in a penal act, in search of an intention which the

words themselves did not suggest. To determine that a case is

within the intention of a statute, its language must authorise us

to say so."  United States v. Wiltberger, 18 U.S. (5 Wheat.) 76,

95-96 (1820).

  What harm is there in this?  The harm to Burns is

concrete   more time in prison.  There is harm to the law as well. 

One harm is that articulated by Judge Easterbrook   that this

Guideline is part of a series of sanctions meant to gradate degrees

of threats, and this result "dissolves the difference" in degree. 

See Hunn, 24 F.3d at 999 (Easterbrook, J., dissenting).  The intent

of this particular law is thus perverted.

  Another harm is even more fundamental and is to the

structure of the law.  The law should mean what it says.  The

Supreme Court has weighed the constitutional effects of laws by

taking them to mean what they say, finding that the appropriate

measure.  See Baggett v. Bullitt, 377 U.S. 360, 374 (1963)

(invalidating state-mandated oath of office and replying to state's

contention   that people would not decline to take the oath out of

fear because there was little reason to fear prosecution   by

saying that "[t]his contention ignores not only the effect of the

oath on those who will not solemnly swear unless they can do so

honestly and without prevarication and reservation, but also its

effect on those who believe the written law means what it says."). 

If the law does not mean what it says, as has happened here, then

it has failed to meet one of the most basic requirements for any

fair and just legal system.