United States v. Nava

94 F. App'x 660

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 16, 2004
• Docket: No. 03-50198
• Status: Published

Opinion

MEMORANDUM

**

Orlando Oscar Nava appeals his 57-month sentence following his guilty plea conviction for unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). We have jurisdiction pursuant to 18 U.S.C. § 3742. We review de novo the district court’s application of the Sentencing Guidelines and for clear error the factual findings underlying its decision, United, States v. France, 57 F.3d 865, 866 (9th Cir.1995), and we affirm.

Nava contends that the district court erred by enhancing his offense level pursuant to U.S.S.G. § 2B3.1(b)(2)(F) for making a threat of death during a bank robbery. He argues particularly that the district court failed to look at the surrounding circumstances of the robbery, instead focusing only on the demand note, which said “I have a gun. Don’t be stupid. If anything goes off, someone’s going down.”

Based on our review of the record, we conclude that the district court’s finding, that Nava’s note and the surrounding circumstances constituted a threat of death, was not clearly erroneous. See U.S.S.G. § 2B3.1, cmt. n. 6; France, 57 F.3d at 866-67. The record demonstrates that the district court considered the circumstances surrounding the robbery as well as the language of the note itself. See France, 57 F.3d at 866-67.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.