UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-40496
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ESCAMILLA QUINTANILLA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(95-CR-243-1)
_________________________________________________________________
April 7, 1997
Before REAVLEY, KING, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Juan Escamilla Quintanilla appeals the imposition of a two-
level enhancement, for making an “express threat of death”, to his
base offense level for bank robbery. We AFFIRM.
I.
In December 1995, Quintanilla entered a bank dressed in a
Santa Claus outfit. Upon Quintanilla asking to speak with a bank
manager, Debbie Bledsoe, a bank vice-president, met him in the
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
lobby. Quintanilla told Bledsoe he wanted to speak with her
privately and followed her to her office. Once there, Quintanilla
told her, “You are being robbed”. She replied, “This is not very
funny”, and Quintanilla responded “No, it’s not”. Quintanilla then
raised his left hand, which was covered with white material (later
determined to be a fake beard from the Santa Claus costume), and
pointed it at Bledsoe. At this point, Quintanilla was about eight
to ten inches away from her. According to Bledsoe, she could not
see what was in Quintanilla’s hand, but it “looked like there was
something” there. Restated, she did not actually see a weapon in
his hand.
Bledsoe told Quintanilla that she had no money in her office,
so he followed her to the bank teller counter — with his raised
hand pointed at her back — where she gave him approximately $4,700.
He departed, but was soon apprehended.
In February 1996, Quintanilla pled guilty to bank robbery, in
violation of 18 U.S.C. § 2113(a), in accordance with a plea
agreement whereby the Government agreed to recommend a three-level
reduction for acceptance of responsibility and a sentence at the
low end of the applicable guideline range. The Presentence
Investigation Report recommended, inter alia, a two-level
enhancement under Guidelines § 2B3.1(b)(2)(F) for making an
“express threat of death”.
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Quintanilla filed a written objection to this enhancement
recommendation. At the sentencing hearing, following Bledsoe’s
testimony about the robbery and argument by counsel, the court
found that such a threat had been made. Counsel for Quintanilla
moved to reopen the proceedings, and the court allowed Quintanilla
to make a few statements, some of which contradicted Bledsoe’s
testimony. The court re-entered its earlier finding.
II.
Quintanilla presents two issues: whether the district court’s
factual findings were clearly erroneous because it credited
statements to Bledsoe that she never made; and whether the court
misapplied the guideline because Quintanilla made, at best, only an
implied threat of death.
A.
Along this line, there is considerable disagreement between
the parties as to the proper standard of review, primarily because
there is some confusion in this circuit as to what standard applies
to an express threat of death ruling. Quintanilla states correctly
that fact findings are reviewed for clear error but claims that the
application of this guideline to the facts is reviewed de novo.
The government maintains that Quintanilla’s “misapplication”
contention should be reviewed only for plain error, asserting that
it is being raised for the first time on appeal. It contends, in
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the alternative, that application questions are reviewed for abuse
of discretion.
We are not convinced that an express threat of death ruling is
properly characterized as an “application” of a sentencing
guideline. Application questions typically arise when a given set
of facts are undisputed, and the district court is faced with two
or more possible guidelines to apply to that conduct. See United
States v. Gonzales, 40 F.3d 735, 738 (5th Cir. 1994). We review
such questions de novo. Id.
Determining whether a given set of facts constitutes an
express threat of death seems more analogous, for example, to the
determination that a defendant’s conduct constitutes “obstruction
of justice”, a finding reviewed only for clear error. See United
States v. Como, 53 F.3d 87, 89 (5th Cir. 1995) (finding of
“obstruction of justice” reviewed for clear error), cert. denied,
116 S. Ct. 714 (1996); see also United States v. Puig-Infante, 19
F.3d 929, 942 (5th Cir. 1994) (finding that criminal enterprise is
“foreseeable” reviewed for clear error); United States v. Fisher,
7 F.3d 69, 70 (5th Cir. 1993) (finding of “abuse of position of
trust” reviewed for clear error); cf. United States v. Flucas, 99
F.3d 173, 180 (5th Cir. 1996) (reviewing sentencing court’s
determination of “acceptance of responsibility” with “even more
deference than the pure ‘clearly erroneous’ standard”), cert.
denied, 117 S. Ct. 1097 (1997).
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On the other hand, our court has suggested previously that an
express threat of death ruling is reviewed de novo. See United
States v. Ashburn, 20 F.3d 1336, 1340 (5th Cir.), reinstated in
part, 38 F.3d 803, 807 n.11 (5th Cir. 1994) (en banc). And, we
have characterized a finding under a different subsection of §
2B3.1(b)(2) as an “application” question and reviewed it de novo.
See United States v. McCarty, 36 F.3d 1349, 1360 (5th Cir. 1994)
(reviewing finding under § 2B3.1(b)(2)(C) that firearm was
“brandished, displayed, or possessed” during a bank robbery — an
“application of the sentencing guidelines” — de novo).
For purposes of this appeal, however, we need not resolve this
dispute, because we conclude that under either de novo or clear
error review, Quintanilla’s sentence should be affirmed. Likewise,
we need not address the contention that plain error review should
be applied.
B.
The commentary to § 2B3.1(b)(2)(F) states that an express
threat of death “may be in the form of an oral or written
statement, act, gesture, or combination thereof”. U.S.S.G. §
2B3.1, comment. (n.6). In making its determination, a district
court is to consider the intent of the guideline — “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
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victim of the offense, significantly greater fear than that
necessary to constitute an element of the offense of robbery”. Id.
The district court found that Quintanilla “created a gesture
in the face and shape of a gun” and pointed it at Bledsoe with his
hand hidden under a “Santa Claus beard”. The court determined also
that a reasonable person could conclude that there was a gun
underneath the beard and that, as a whole, Quintanilla’s conduct
“would instill fear in a reasonable person beyond that necessary to
commit the crime of bank robbery”.
1.
Based on our review of the sentencing hearing transcript, we
find no merit in Quintanilla’s attack on the findings of fact.
Although Quintanilla testified that he never pointed at Bledsoe,
the court was entitled to credit Bledsoe’s testimony as more
credible, especially since Quintanilla did not testify to that
effect until after the judge concluded (for the first time) that an
express threat of death had been made.
2.
As for the ultimate determination that Quintanilla made an
express threat of death, we refer to the application note
accompanying § 2B3.1, permitting a court to base this finding on
gestures or statements, or combinations thereof. U.S.S.G. § 2B3.1,
comment. (n.6). The combination of Quintanilla’s raising his
covered left hand, forming the shape of a gun, pointing it at
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Bledsoe from a distance of eight to ten inches, and saying “This is
a bank robbery” and “No, it’s not [a joke]” clearly fall within the
parameters of this guideline.
III.
For the foregoing reasons, Quintanilla’s sentence is
AFFIRMED.
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