F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 12, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 04-5123
v. (Northern District of Oklahoma)
(D.C. No. 04-CR-35-K)
MARTIN SHANE YOHO,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is,
therefore, ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I. INTRODUCTION
Defendant-appellant Martin Shane Yoho pleaded guilty to bank robbery and
interference with interstate commerce, along with aiding and abetting each of
these offenses, in violation of 18 U.S.C. §§ 2, 1951, and 2113(a). The district
court sentenced Yoho to 100 months’ imprisonment and three years’ supervised
release. Yoho now appeals his sentence, arguing that the district court erred in
imposing both a two-point sentencing enhancement based on an alleged death
threat and a three-point enhancement for possession of a weapon during a robbery
offense. Yoho also asserts that he must be resentenced in light of the Supreme
Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005). Exercising
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms
Yoho’s sentence.
II. BACKGROUND
On March 1, 2004, Yoho, along with co-defendant Michael Cazzell, robbed
QuikTrip, a convenience store located in Tulsa, Oklahoma. Yoho entered the
store and “implied [he] had a weapon” by keeping his hand in his pocket. The
store employee gave Yoho $174. Later that same day, the two men robbed Gold
Bank in Tulsa. While Cazzell waited in a vehicle outside, Yoho entered the bank
and handed a note to a teller. The note read, “Give me all of the 100s and 50s. I
have a gun.” The teller complied and handed Yoho approximately $2300.
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Yoho was charged by superseding indictment on April 13, 2004, and
subsequently entered a guilty plea. After calculating Yoho’s sentence under the
United States Sentencing Guidelines (“U.S.S.G.”), the presentence report (“PSR”)
recommended a sentencing range of 92 to 115 months. This was based on a
criminal history category of VI and a final adjusted offense level of twenty-three.
The base offense level for the robbery count was twenty, which was enhanced by
two levels because the property of a financial institution was taken. U.S.S.G.
§ 2B3.1(b)(1). 1 An additional two-level increase was applied because a threat of
death was made during the bank robbery. Id. § 2B3.1(2)(F). The two
enhancements resulted in an adjusted offense level of twenty-four. The base
offense level for interference with interstate commerce was twenty. Id. § 2B3.1.
This was enhanced three levels because Yoho possessed a weapon during the
robbery of the convenience store, yielding an adjusted offense level of twenty-
three. Id. § 2B3.1(b)(2)(E). Pursuant to § 3D1.4, the multiple-count adjustment
provision of the Guidelines, the greatest adjusted offense level (twenty-four) was
enhanced two levels, resulting in a combined adjusted offense level of twenty-six.
A three-level reduction was applied for acceptance of responsibility, producing a
final adjusted offense level of twenty-three. Id. § 3E1.1.
Because Yoho was sentenced under the 2003 edition of the United States
1
Sentencing Guidelines Manual, all Guidelines citations are to the 2003 edition.
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Yoho objected to two of the sentencing enhancements contained in the
PSR. He argued that the statement “I have a gun,” without more, is not a threat of
death sufficient to justify the enhancement. Yoho also contended that the
sentencing enhancement for possession of a weapon was not warranted by the
facts of his case. Yoho further asserted that neither enhancement was appropriate
in light of the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct.
2536 (2004), because the facts were not admitted by Yoho nor found beyond a
reasonable doubt by a jury. The district court overruled Yoho’s objections and
sentenced him to 100 months’ imprisonment, the middle of the applicable
Guidelines range.
III. DISCUSSION
A. Application of the Sentencing Guidelines
“When reviewing a district court’s application of the Sentencing
Guidelines, we review legal questions de novo and we review any factual findings
for clear error, giving due deference to the district court’s application of the
guidelines to the facts.” United States v. Doe, 398 F.3d 1254, 1257 (10th Cir.
2005) (quotation omitted).
Yoho challenges the district court’s application of a two-level enhancement
for an alleged death threat, arguing that simply stating “I have a gun” is not
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legally sufficient to support the enhancement. The Guidelines specify that a
threat of death
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. For example, an oral or written demand using
the 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 the defendant draws his hand across his throat in a
slashing motion)”, or “Give me the money or you are dead” would
constitute a threat of death. 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 analyzing the threat-of-death enhancement under
§ 2B3.1(b)(2)(F), this court has recognized that “a reasonable teller would
ordinarily experience a fear of being shot when the robber confronting her
announces he has a gun.” United States v. Arevalo, 242 F.3d 925, 928 (10th Cir.
2001) (citing United States v. Carbaugh, 141 F.3d 791, 794 (7th Cir. 1998)
(holding that the statement “I have a gun” is a “threat of death”)); see also United
States v. Jennette, 295 F.3d 290, 292-93 (2d Cir. 2002) (collecting cases). The
statement “I have a gun” is therefore sufficient to justify imposition of the threat-
of-death enhancement. Accordingly, the district court did not err when it applied
the two-level enhancement under U.S.S.G. § 2B3.1(b)(2)(F) to increase Yoho’s
base offense level.
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In his appellate brief, Yoho asserts, in one short sentence, that “the
enhancement of 3 points in reference to possessing a weapon under the facts of
this case would not be appropriate or supported by the facts.” The failure to
provide any argument or legal authority to support his claim, is insufficient to
invoke appellate review. See Eateries, Inc. v. J.R. Simplot Co., 346 F.3d 1225,
1232 (10th Cir. 2003). Even if we were to reach the issue, however, any potential
error in applying the enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(E) would
be harmless because it had no effect on the calculation of Yoho’s sentence. See
Williams v. United States, 503 U.S. 193, 203 (1992) (“[O]nce the court of appeals
has decided that the district court misapplied the Guidelines, a remand is
appropriate unless the reviewing court concludes, on the record as a whole, that
the error . . . did not affect the district court’s selection of the sentence
imposed.”).
B. United States v. Booker
During the pendency of Yoho’s appeal, the Supreme Court decided United
States v. Booker in which the Court held that “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt.” 125 S.
Ct. at 756. Because the district court did not rely on judge-found facts to
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mandatorily enhance Yoho’s sentence, the district court committed only non-
constitutional Booker error by applying the Guidelines in a mandatory, as opposed
to an advisory, fashion. 2 See United States v. Gonzalez-Huerta, 403 F.3d 727,
731-32 (10th Cir. 2005) (en banc) (discussing two types of Booker errors).
Yoho’s objection under Blakely v. Washington, 124 S. Ct. 2531 (2004), preserved
his Booker argument and we review for harmlessness. See Fed. R. Crim. P. 52(a);
United States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005). In
non-constitutional Booker errors such as this, “the government bears the burden
of demonstrating, by a preponderance of the evidence, that the substantial rights
of the defendant were not affected.” United States v. Glover, 413 F.3d 1206,
1210 (10th Cir. 2005).
We have no difficulty concluding that the government has satisfied its
burden. Given that the district court utilized its limited pre-Booker discretion to
sentence Yoho to the middle of the applicable Guidelines range, there is no reason
to think that the district court would have imposed a lesser sentence had it had the
opportunity to do so. See United States v. Riccardi, 405 F.3d 852, 876 (10th Cir.
2005) (applying harmless error analysis to constitutional Booker error). Indeed,
2
Yoho admitted all of the underlying facts supporting application of the
threat of death enhancement and the weapon enhancement had no effect on his
sentence. See United States v. Yazzie, 407 F.3d 1139, 1144-45 (10th Cir. 2005)
(en banc).
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at sentencing, the district court said, “A sentence is imposed at this range because
of the defendant’s extensive criminal history. It’s not a higher sentence because
his crimes have consisted primarily of property crimes. It is a sufficient sentence,
though, for these crimes. . . . I think a sentence toward the middle is appropriate
in this case.” After reviewing the record, the statements of the district court, and
the court’s decision to sentence Yoho in the middle of the applicable Guidelines
range, we conclude that the sentencing error was harmless.
IV. CONCLUSION
For the reasons set out above, the sentence imposed by the district court is
AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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