United States v. Paul A. Carbaugh

141 F.3d 791, 1998 WL 171514
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 30, 1998
Docket97-2311
StatusPublished
Cited by34 cases

This text of 141 F.3d 791 (United States v. Paul A. Carbaugh) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Paul A. Carbaugh, 141 F.3d 791, 1998 WL 171514 (7th Cir. 1998).

Opinions

ESCHBACH, Circuit Judge.

In this case the parties ask us to decide whether the words “I have a gun” constitute a “threat of death” for purposes of U.S.S.G. § 2B3.1(b)(2)(F) when made in the context of a bank robbery.

On September 11, 1996, defendant entered a bank, placed a bag on the counter and declared, “This is a robbery.” The teller asked, “Are you for real?” Defendant responded, “This is a robbery. Put the money in the bag. I have a gun.” According to the teller, as the defendant announced that he had a gun, he also moved his hand toward his waist. The teller saw a bulge in the defendant’s shirt near his waist and she thought the bulge was a gun. The defendant departed from the bank with a bag containing $2600. He was arrested shortly thereafter and pled guilty to bank robbery.

At sentencing, defendant admitted to saying, “I have a gun,” but denied making any downward gesture. Although the district judge invited the parties to address the factual dispute regarding the existence or nature of a gesture, neither party offered testimony on that point. The district court assumed, for purposes of sentencing, that the defendant made some downward gesture but concluded that the words, “I have a gun” plus the gesture fall short of an “express threat of death” under U.S.S.G. § 2B3.1(b)(2)(F).

The government, as the party seeking the enhancement, had the burden of proving the factual basis for the increase by a preponderance of the evidence. See United States v. Wyatt, 102 F.3d 241, 246 (7th Cir. 1996); United States v. Foutris, 966 F.2d 1158, 1160 (7th Cir.1992). Since the government declined to carry its burden, we assume that the defendant made no gesture. Accordingly, we must decide whether the words alone merit the enhancement.

Whether a robber’s statement can constitute an express threat of death involves the legal interpretation of a sentencing guideline which we review de novo. See United States v. Jones, 83 F.3d 927, 929 (7th Cir.1996). If it can constitute a death threat, then we must decide whether the robber’s statement constituted such a threat in this case. The latter issue is a fact question, which we review for clear error. “This court must give ‘due deference’ to the district court’s application of the Guidelines to the [793]*793facts.” United States v. Hunn, 24 F.3d 994, 998 (7th Cir.1994).

We address the legal question first— whether “I have a gun” can constitute a threat of death. Until November 1,1997, the Sentencing Guidelines required a two-level enhancement for a robber who makes an express threat of death. The Circuits were split on the question whether an express threat of death must, in fact, be express. Compare United States, v. Canzater, 994 F.2d 773, 775 (11th Cir.1993) (stating that the enhancement “is appropriate only when the threat of death is express, meaning directly or distinctly stated, and not when*the threat is implied or left to inference”) with United States v. Robinson, 86 F.3d 1197, 1203 (D.C.Cir.1996) (“[W]e have concluded that express threats of death can be based on inferences.”). The majority of circuits have taken the latter approach. United States v. Figueroa, 105 F.3d 874, 877 (3d Cir.1997) (“The majority of the courts of appeals ... have held that the defendant can make an express threat of death without explicitly threatening to kill the victim.”). Our Circuit has adopted the majority approach—implied threats of death fall within the meaning of the guideline. See United States v. Hunn, 24 F.3d at 994.

Effective November 1, 1997, the Sentencing Commission omitted the word “express” from the Guideline; the guideline now applies where there is simply “a threat of death.” The Commission also added a sentence to the commentary stating that “the defendant does not have to state expressly his intent to kill the victim in order for the enhancement to apply.” U.S.S.G. § 2B3.1 comment, (n.6). The amendment “addresses a circuit court conflict” and “adopts the majority appellate view which holds that the enhancement applies when the combination of the defendant’s actions and words would instill in a reasonable [victim teller] a greater amount of fear than necessary to commit the robbery.” U.S.S.G. Appendix C, amendment 552.

Thus, an issue is raised whether to apply only the foregoing guideline or to consider the amended version as well. “[I]f a court applies an earlier edition of the Guidelines Manual, the court shall consider subsequent amendments, to the extent that such amendments are clarifying rather than substantive changes.” U.S.S.G. § lBl.ll(b)(2); see United States v. Goudy, 78 F.3d 309, 314 (7th Cir.1996). We need not decide whether the amendment is technically substantive or clarifying because the amendment adopted our Circuit’s view, and therefore, our analysis remains the same before and after November 1,1997.1

No cases in our circuit are precisely on point. In United States v. Hunn, 24 F.3d at 994, the defendant entered a bank and handed the teller a note that read “This is a holdup. I have a gun,” while keeping his right hand in a coat pocket, pointed at the teller. We held that the defendant had made an express threat of death because “a reasonable victim could understand Hunn’s message loud and clear as a death-threat.” Id. at 998. Likewise, in United States v. Bomski, 125 F.3d 1115 (7th Cir.1997), the defendant placed a bag on the counter and said,, “this is a bomb,” and “give me all of your money.” We held that the defendant had made an express threat of death.

The defendant’s threat here poses a slightly different question than that raised by Hunn’s gun and Bomski’s bomb. In those cases, the defendant’s statement was accompanied with a threatening gesture. In Hunn there was a finger pointed through a coat pocket,2 and in Bomski there was a purport[794]*794ed bomb placed on the counter. These gestures combined with the verbal statements would succeed in causing a reasonable teller to fear for his life.

In United States v. Jones, 83 F.3d 927, 929 (7th Cir.1996), the defendant entered a bank and stated “(1) that he had a gun, (2) that it was ‘no joke,’ (3) that the tellers were ‘not to pull any alarms,’ for if they did (4) ‘I’ll use it.’ ” Id. We held that these statements constituted an express threat of death because “Jones’ statements were sufficient to put a reasonable person in the teller’s position in fear of death ...”3 Id.

Carbaugh argues that his case is different than Jones

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141 F.3d 791, 1998 WL 171514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-paul-a-carbaugh-ca7-1998.