United States v. Figueroa

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit

1-30-1997

United States v. Figueroa
Precedential or Non-Precedential:

Docket 96-1421

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1421

UNITED STATES OF AMERICA

v.

JUAN FIGUEROA,

Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 95-00504)

Submitted under Third Circuit LAR 34.1(a)
December 10, 1996

BEFORE: BECKER, MANSMANN, and GREENBERG, Circuit Judges

(Filed: January 30, l997)

Michael R. Stiles
United States Attorney
Robert R. Calo
Assistant United States Attorney
Walter S. Batty, Jr.
Assistant United States Attorney
Chief of Appeals
615 Chestnut Street
Philadelphia, PA 19106

Attorneys for Appellee

Mark D. Mungello
103 LaCosta Drive
Blackwood, NJ 08012

Attorney for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge.

1
 Appellant Juan Figueroa appeals from the sentence

imposed by the district court after he pleaded guilty to bank

robbery in violation of 18 U.S.C. § 2113(a). Figueroa argues

that the district court erred by enhancing his offense level by

two levels for an express threat of death under United States

Sentencing Guideline § 2B3.1(b)(2)(F). We will affirm and hold

that a written statement Figueroa presented to a bank teller

during the robbery informing the teller that he possessed a gun

constituted an express threat of death and subjected him to a 2-

level enhancement under section 2B3.1(b)(2)(F).

1. Jurisdiction and Standard of Review

Figueroa was indicted for violation of 18 U.S.C. §

2113(a) and 18 U.S.C. § 2, and thus the district court had

subject matter jurisdiction over this prosecution. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). A

defendant may appeal a sentence imposed by a district court if

the sentence "was imposed in violation of law [or] was imposed as

a result of an incorrect application of the sentencing

guidelines. . . ." 18 U.S.C. § 3742(a)(1) and (2). We exercise

plenary review over the district court’s interpretation and

application of the Sentencing Guidelines. United States v.

Hallman, 23 F.3d 821, 823 (3d Cir.), cert. denied, 115 S.Ct. 216

(1994). If, however, the district court's application of the

Guidelines was based on factual analysis, we will reverse for

clear error only. Id. In this case we regard the issue as

2
involving the interpretation and application of the Guidelines so

we exercise plenary review.

2. Background

On April 24, 1995, Figueroa entered the Meridian Bank

at 1470 East High Street in Pottstown, Pennsylvania, and

approached a bank teller. His co-defendant, Marcellus Hammond,

waited in a car outside the bank. Figueroa gave a note written

by Hammond on a white napkin to the teller which read "I have a

gun. Give me all the money." The note had some other writing to

the effect that Figueroa needed a bag for the money. The teller

gave Figueroa $2,379.00, and Figueroa left the bank.

On September 14, 1995, a grand jury indicted Figueroa

for committing robbery against Meridian Bank in violation of 18

U.S.C. § 2113(a) and 18 U.S.C. § 2. Figueroa entered a plea of

guilty to violation of 18 U.S.C. § 2113(a) on October 5, 1995.

On May 16, 1996, the district court sentenced Figueroa to 40

months imprisonment, five years supervised release, a $50.00

special assessment, and $2,379.00 in restitution. At the

sentencing, Figueroa objected to the section

2B3.1(b)(2)(F) 2-level enhancement for an express threat of

death. On May 20, 1996, Figueroa filed this appeal.

3. Discussion

U.S.S.G. § 2B3.1 provides that the base offense level

for robbery is 20. Subsection (b) then lists several offense

characteristics for which the court should apply specific

3
enhancements. Under section 2B3.1(b)(2)(F), "if an express

threat of death was made [during the commission of the offense],

increase by 2 levels." The commentary to the Guidelines further

explicates, through illustration, the meaning of "express threat

of death":
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 the 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 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.

This commentary is binding on a court unless it violates the

Constitution or a federal statute, is inconsistent with the

guideline, or clearly misinterprets the guideline. Stinson v.

United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915 (1993). In

this case none of these exceptions applies, so the commentary is

binding and this appeal turns on our application of it.

Figueroa argues that he should not be subjected to the

2-level enhancement of section 2B3.1(b)(2)(F) because his written

note merely stated that he possessed a gun, but did not contain

any threat to use the gun. He contends that "the comments and

the caselaw construing this Section all require something more

than a single statement or communication that the actor is in

4
possession of a weapon; [Figueroa's] position is that there must

be, at a minimum, some words or physical gestures from which it

could be reasonably inferred by the victim that the Defendant

intends to actually use his weapon in the event that the victim

fails to comply with the actor's directive." Br. at 4.

In response, the Government argues that the statement

"I have a gun" is an express threat of death because the

reasonable inference to be drawn from that statement is that the

person will use the gun if his demands are not satisfied. The

Government argues further that by informing the teller he had a

gun, Figueroa "instilled significantly greater fear [in the

teller] than would have occurred had he merely made a demand for

money, which is the only act necessary to satisfy the element of

a taking by force, violence, and intimidation." Br. at 7-8. For

these reasons, the Government contends that Figueroa's conduct

qualifies as an express threat of death, subject to a 2-level

enhancement.

The application of section 2B3.1(b)(2)(F) presents a

question of first impression in this court. However, we are

guided by the opinions of other courts of appeals. As in the

examples presented in the commentary, in none of these cases are

the facts exactly like those in this case, but the principles

they enunciate persuade us that Figueroa's statement that he had

a gun was an "express threat of death" within the meaning of

section 2B3.1(b)(2)(F).

The majority of the courts of appeals which have

interpreted and applied section 2B3.1(b)(2)(F) have held that the

5
defendant can make an express threat of death without explicitly

threatening to kill the victim. Their reasoning has turned on a

reading of the word "express" combined with adherence to the

commentary's instruction to consider the reasonable perceptions

of the recipient of the threat. For example, one court has

explained that "express" need not be read as meaning distinct or

explicit, but rather also can be interpreted reasonably as

"clear." United States v. Robinson, 86 F.3d 1197, 1200 (D.C.

Cir. 1996) (citations omitted). Defining "express" to mean

“clear” has enabled the courts to focus on the reasonable

implications of, and inferences from, the defendant's words or

actions. Id. at 1203.1 The courts thus have concluded that an

“express threat need not be specific in order to instill the

requisite level of fear in a reasonable person." United States

v. France, 57 F.3d 865, 868 (9th Cir. 1995) (citation omitted).

The Court of Appeals for the Fourth Circuit has

emphasized that the "crucial determination. . . is whether a

1
The Court of Appeals for the District of Columbia Circuit
explained in Robinson that it believed its interpretation of
section 2B3.1(b)(2)(F) to be stricter than that of the Courts of
Appeals of the Eighth and Ninth Circuits as set forth in United
States v. Cadotte, 57 F.3d 661, 662 (8th Cir. 1995), cert. denied,
116 S.Ct. 783 (1996), and United States v. Strandberg, 952 F.2d
1149, 1151 (9th Cir. 1991). Robinson, 86 F.3d at 1203. The Court
of Appeals for the District of Columbia Circuit felt that those
courts focused too narrowly on the victim's perception and thereby
ignored the requirement that the threat be "express," however
defined. Id. We are not forced to choose between these formulas,
but we do not agree that the guideline's requirement that the
threat be express has been discarded by the Courts of Appeals for
the Eighth and Ninth Circuits. Instead, they have molded what the
Court of Appeals for the District of Columbia Circuit views as two
factors, that there be an express threat and that it is reasonable
for the victim to infer his life is in danger, into one inquiry.

6
reasonable victim would fear for his or her life because of the

robber’s actions." United States v. Murray, 65 F.3d 1161, 1166

n.3 (4th Cir. 1995). Similarly, the Court of Appeals for the

Ninth Circuit has explained that what "is determinative is

whether a reasonable person, given the conduct of the defendant

and the context in which it occurred, would experience

significantly greater fear than the level of intimidation

necessary to constitute an element of the offense of robbery."

France, 57 F.3d at 866-67 (citing United States v. Strandberg,

952 F.2d 1149, 1151 (9th Cir. 1991)) (footnote omitted). These

courts therefore have found that statements that defendants

possessed weapons or would shoot, as well as gestures simulating

the appearance of a gun, are express threats of death within the

meaning of section 2B3.1(b)(2)(F). See Robinson, 86 F.3d at 1202

(defendant's statements that he would shoot someone if not given

the money constituted express threats of death because they

reasonably could be interpreted as threats to kill); France, 57

F.3d at 867-68 (defendant’s statement that he had dynamite

qualified as express threat of death); Murray, 65 F.3d at 1167

(defendant's statement "I have a gun pointed at you" constituted

express threat of death); United States v. Hunn, 24 F.3d 994,

997 (7th Cir. 1994) ("a bank robber's pointing his hand through

his coat pocket, while claiming to have a gun, can be a sentence-

enhancing, death threat expression"); United States v. Lambert,

995 F.2d 1006, 1008 (10th Cir.) (instruction to teller to put

money in the bag or "'the person behind me will shoot someone'"

is an express threat of death), cert. denied, 510 U.S. 926, 114

7
S.Ct. 333 (1993); United States v. Smith, 973 F.2d 1374, 1377-78

(8th Cir. 1992) (defendant's statement that teller would not want

to find out if defendant's demand for money was a joke, combined

with defendant's holding his hand under his coat as if holding a

gun, qualified for section 2B3.1(b)(2)(F) enhancement); United

States v. Strandberg, 952 F.2d, 1149, 1151-52 (9th Cir. 1991)

(statement to teller that if she pulled alarm defendant's "friend

would start shooting" constituted express threat of death).

These courts often have focused their attention on how a

reasonable victim would be affected by the threat.

It appears that only the Courts of Appeals for the

Eleventh and Sixth Circuit have applied a stricter definition of

"express threat of death." The Court of Appeals for the Eleventh

Circuit has held that "the threat must be directly and distinctly

stated or expressed rather than implied or left to inference, and

the threat 'must be of death, or activity that would cause the

victim to be in reasonable apprehension of his or her life. . .

.'" United States v. Moore, 6 F.3d 715, 721-22 (11th Cir. 1993)

(citation omitted) (holding that statement that defendant had a

gun and nothing to lose was not an express threat of death).2 The
2
In Moore, the court relied in part on United States v. Tuck,
964 F.2d 1079 (11th Cir. 1992). In Tuck, the court found that the
commentary's reference to the fear instilled in the victim by the
threat was potentially inconsistent with the guideline and, in any
event, not binding upon the court. Tuck, 964 F.2d at 1081. The
Tuck court reconciled the commentary and guideline by reading the
commentary as applying the enhancement “only to defendants who
have engaged in conduct that would instill in the victim a
reasonable fear for his or her life." Id. Stinson overrules
Tuck to the extent Tuck held that the guidelines should be
interpreted like legislative history. This flaw does not in
itself undermine the Court of Appeals for the Eleventh Circuit's
reasoning, because in later cases, such as Moore, the court did

8
Court of Appeals for the Sixth Circuit recently has adopted the

reasoning of the Court of Appeals for the Eleventh Circuit to

hold that "to satisfy the qualifier 'express,' a defendant's

statement must distinctly and directly indicate that the

defendant intends to kill or otherwise cause the death of the

victim." United States v. Alexander, 88 F.3d 427, 431 (6th Cir.

1996) (footnote omitted).

We reject the Court of Appeals for the Eleventh

Circuit's definition of "express threat of death" as too narrow.

See also Hunn, 24 F.3d at 997 (finding the Court of Appeals for

the Eleventh Circuit's reading of section 2B3.1(b)(2)(F)

"unnecessarily cramped"); France, 57 F.3d at 868 (same). Reading

"express" as "clear," as the Court of Appeals for the District of

Columbia Circuit suggests, reconciles the text of section

2B3.1(b)(2)(F) with the accompanying commentary. Robinson, 86

F.3d at 1200. If the word "express" were read to require an

explicit, precise statement of a defendant’s intent to kill, the

commentary’s direction to analyze the perception of the victim

would be undermined.

Moreover, the Court of Appeals for the Eleventh

Circuit's interpretation of the guideline could result in

disparate sentences for defendants who commit the same crimes.

Under its reasoning, a defendant could escape the effect of

section 2B3.1(b)(2)(F) because of his brevity or random choice of

consider whether the robber's threat reasonably would instill
greater fear in the victim than the robbery alone (without the
threat) would have.

9
words; that is, he could avoid the 2-level enhancement simply

because he wrote a shorter note or spoke less than another

defendant, choosing only to announce that he would shoot the

victim rather than threaten to kill the victim. In the calmer

atmosphere of a sentencing colloquy, the different wordings may

seem significant; however, in the tense environment of a bank

robbery, the differences are truly only semantic and negligible.

It would be reasonable for the teller who is the target of a

bank robbery to interpret "I will shoot you" and "I will kill

you" as identical statements indicating that the teller's life is

in jeopardy. We believe that Moore seized on a distinction

without a difference, and in light of the commentary's direction

to consider the effect of the threat upon the reasonable victim,

we find the reasoning of the Courts of Appeals for the Fourth,

Seventh, Eighth, Ninth, Tenth, and District of Columbia Circuits

more persuasive.

We recognize that most of the cases we have cited

involved a more detailed statement than an announcement such as

that here that the defendant possessed a weapon. Yet there are

cases where courts have held that such a possessory statement,

accompanied by little else, is sufficient to qualify for the

section 2B3.1(b)(2)(F) enhancement. The Court of Appeals for the

Eighth Circuit has held that a defendant who told a bank teller

who did not accede immediately to his demands that he had a .357

magnum in his pocket and no one would be hurt if she gave him the

money was subject to a section 2B3.1(b)(2)(F) enhancement.

United States v. Cadotte, 57 F.3d 661 (8th Cir. 1995), cert.

10
denied, 116 S.Ct. 783 (1996). In France, the court held that a

robber's statement that he had dynamite constituted an express

threat of death, although the court expressly refused to

determine whether section 2B3.1(b)(2)(F) would apply to a

defendant who stated he had a gun. France, 57 F.3d at 865-68.

In this case, Figueroa presented a written note to the

teller that stated he had a gun but he did not communicate any

explicit intention to use the weapon.3 However, it is not

unreasonable for a bank teller, confronted by a robber demanding

money, and, as here, claiming to have a gun, to fear that his or

her life is in danger. During the sentencing colloquy, the

district court imagined aloud how a bank teller would perceive

this situation:
I think the purpose of this was, I think to allow
an enhancement where a reasonable person felt by
looking at the person in the eye, normally in this
situation, as well, the wrongdoer is very close to
the teller. You go to a bank, the counter is
there, the glass is there, sometimes the teller is
as close as 24, 30 inches away. So you put all of
these things together, the person's head and the
top part of the body is looking at a person 24
inches away or so with a gun, it seems to me, that
is the sort of a thing that would place a
reasonable person in fear of this, a death threat,
that would seem so to me. . . . [H]ere is a
person, eyeball to eyeball, that close, that says,
I have a gun, give me the money. I think that’s
what it is for.
3
In fact, Figueroa claims that he did not have a gun at the
time of the robbery, and this claim appears to be uncontested.
Br. at 2. However, this fact does not affect the applicability of
section 2B3.1(b)(2)(F). See, e.g., United States v. Jones, 83
F.3d 927, 929 (7th Cir. 1996) (“But the fact that he may have
actually been unarmed is of no consequence provided he instilled
in the tellers significantly greater fear than that necessary to
constitute an element of the offense of robbery.") (internal
quotation marks omitted); Murray, 65 F.3d at 1167; Hunn, 24 F.3d
at 997 n.5; Cadotte, 57 F.3d at 662.

11
App. at 16-17. A teller confronted by a robber is in a tense and

frightening situation; moreover, once a weapon is introduced, the

level of fear intensifies. "If a person robbed a bank by

delivering a note to a teller stating something like 'give me the

money and keep your mouth shut,' an enhancement would be

inappropriate. But once a robber starts embellishing -- 'I have

a gun -- I'm not afraid to use it -- don't pull any alarms' --

he's asking for an enhancement under the guidelines because those

sorts of comments place a teller, who is seriously vulnerable, in

a position of enhanced fear." Jones, 83 F.3d at 929.

The Government argues that common sense dictates that

the inference to be drawn from a statement that a robber

possesses a gun is that he is willing to use it. Br. at 7. This

is a logical inference, and one that a reasonable recipient of

the statement likely would draw. The Court of Appeals for the

Fourth Circuit has held that a robber's statement that she has a

gun pointed at the teller is tantamount to threatening to shoot

the teller. Murray, 65 F.3d at 1167; see also Robinson, 86 F.3d

at 1202.

We think that the logic of those cases applies here.

When a robber announces, by word or by action, that he possesses

a gun, he also is communicating to the reasonable victim his

intention to use that weapon. After all, what is the purpose of

announcing the presence of the weapon other than to convey to the

victim that the weapon will be used unless the victim complies

with the robber's demands? Surely the robber does not announce

that he has a weapon for his own defense. Even if there is no

12
gun, or if the defendant actually never would use the gun, the

victim alerted that there is a gun is justified in believing it

exists and will be used, and that his or her life is therefore in

danger. The commentary to section 2B3.1(b)(2)(F) has directed

our attention to the reasonable belief of the victim, and we find

it is reasonable for a bank teller to interpret a defendant's

statement of possession of a gun as a threat to his or her life.

Our interpretation of section 2B3.1(b)(2)(F) is also

consistent with the underlying purpose of the Guidelines: to

create a more systematic and equitable sentencing scheme. A

defendant might find simply announcing the existence of the weapon

sufficiently effective to cause the victim bank teller to act

quickly and quietly. If section 2B3.1(b)(2)(F) applies only to

the defendant who explicitly communicates his intention to use the

weapon if necessary, the result will be disparate sentences for

defendants who have committed the same crime using the same means

but who have differed in their verbosity or articulateness. The

commentary directs our attention to the perspective of the victim

for a reason; it is the effect of the threat, not its actual

wording, which triggers the 2-level enhancement under section

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

The note Figueroa presented to the bank teller stating

that he wanted the money and that he had a gun, reasonably would

have been perceived by the teller as communicating Figueroa's

intention to use the weapon. The teller therefore reasonably

would have believed that Figueroa endangered her life. Figueroa's

13
statement constituted an express threat of death subject to a 2-

level enhancement under § 2B3.1(b)(2)(F).

While we do not doubt that our result is correct under

section 2B3.1(b)(2)(F) and the commentary as it is now written, we

take note of the circumstance that the United States Sentencing

Commission has proposed an amendment to the commentary to make

clear that the Commission's intent has been in accord with the

majority position we now are joining:
This amendment adopts the majority view and clarifies
the Commission's intent to enhance offense
levels for defendants whose intimidation of
the victim exceeds that amount necessary to
constitute an element of a robbery offense.
The amendment deletes the reference to
'express' in § 2B3.1(b)(2)(F) and provides
for a two-level enhancement 'if a threat of
death was made'.

Proposed Amendment to the Federal Sentencing Guidelines, 60 Crim.

L. Rep. (BNA) 2019, 2035 (Jan. 15, 1997). Inasmuch as we never

before have addressed the application of section 2B1.3(b)(2)(F)

and the majority of the courts of appeals already have adopted the

position taken by the Commission in the clarifying amendment, it

is entirely appropriate for us to consider the amendment as

further support for our holding. See United States v. Bertoli, 40

F.3d 1384, 1404-06 (3d Cir. 1994); United States v. Ofchinick, 877

F.2d 251, 257 n.9 (3d Cir. 1989).

4. Conclusion

U.S.S.G. § 2B3.1(b)(2)(F) applies to a defendant who

announces in the course of a robbery, either by word or action,

that he has a gun. Figueroa is thus eligible for the 2-level

14
enhancement under section 2B3.1(b)(2)(F). Accordingly, the

district court properly applied and construed section

2B3.1(b)(2)(F) when sentencing Figueroa. Therefore, we will

affirm the judgment of conviction and sentence of May 16, 1996.

UNITED STATES OF AMERICA v. JUAN FIGUEROA, No. 96-1421

BECKER, Circuit Judge, dissenting.

I.

The majority concludes that the defendant's statement

to a bank teller -- "I have a gun; give me all the money" --

constituted an "express threat of death" so as to justify a two-

level increase above the base offense level for robbery under the

Sentencing Guidelines. See 1995 U.S.S.G. § 2B3.1(b)(2)(F). In

contrast to the majority -- which spins out an intricate

15
explanation for this counter-intuitive holding -- I think the case

is very simple.

The majority rests its holding on the last sentence of

the relevant Guideline Commentary, which reads:
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.

Id. § 2B3.1, comment., application note 6. The language in the

Commentary appears to allow an increase above the base offense

level if there is any threat of death, express or implied.

However, that Commentary is not binding on the court if it is

inconsistent with the Guideline or if it clearly misinterprets the

Guideline. See Stinson v. United States, 113 S. Ct. 1913, 1918

(1993) ("If, for example, commentary and the guideline it

interprets are inconsistent in that following one will result in

violating the dictates of the other, the Sentencing Reform Act

itself commands compliance with the guideline."). I believe that

the Commentary at issue is either inconsistent with or clearly

misinterprets the relevant Guideline text, which provides:
if an express threat of death was made [during the commission of
the robbery], increase by 2 levels.

1995 U.S.S.G. § 2B3.1(b)(2)(F) (emphasis added).

The Guideline itself, then, allows the increase only if

the threat is express. Therefore, as I understand Stinson, only

an express threat of death will satisfy § 2B3.1(b)(2)(F),

16
regardless of the language in the Commentary. The adjective

"express" is defined as:
directly and distinctly stated or expressed rather than implied or
left to inference . . . Definite, Clear, Explicit,
Unmistakable . . .

Webster's Third New International Dictionary 803 (1966). There is

no way, I submit, that the defendant's statement meets that

definition. It may be an implied threat, but it is surely not an

express threat.

I could elaborate upon these views, but they have

recently been articulated quite forcefully by the Sixth Circuit in

United States v. Alexander, 88 F.3d 427, 428-31 (6th Cir. 1996),

and by Judge Easterbrook, dissenting in United States v. Hunn, 24

F.3d 994, 999-1000 (7th Cir. 1994) (Easterbrook, J., dissenting).4

Judge Easterbrook put it best:
The Sentencing Commission set out to distinguish degrees of
threats. Saying that you have a gun does not
invariably induce a fear of death. To separate
ordinary references to guns, and the apprehension they
produce, from the terror that a threat of death yields,
the Sentencing Commission provided that only an
"express threat of death" justifies the two-level
increase. An implication from words and gestures is
not enough. Only what the bandit says or conveys in
signs, not what the victim reads into shadings of "I
have a gun," is an "express" threat. Anything else
dissolves the difference between posturing and genuine
threats of death.

. . . .

Threats lie along a continuum of seriousness and gravity. Yet the
Sentencing Commission did not compose a multi-factor
approach or ask the courts to balance objectives. It
created a dichotomy between "express" and "implied"
4
In his dissenting opinion in United States v. Cadotte, 57
F.3d 661 (8th Cir. 1995), Judge Morris Arnold also expressed his
view that the threat of death need be express to satisfy §
2B3.1(b)(2)(F). See id. at 662 (Arnold, J., dissenting).

17
 threats of death. . . . [F]eigning is ordinary for a
bank robbery. It may have placed the teller in fear of
harm, but harm is not death, and an inference from the
announcement of a weapon is not an "express" threat.
The application note shows . . . that a conditional
threat can be "express"; if, as the majority holds, an
implied conditional threat also qualified, then
"express" has been read out of the Guideline.

Id. (emphasis in original). I endorse these views; hence I

respectfully dissent.

II.

Having been alerted to the Judicial uncertainty over

the import of § 2B3.1(b)(2)(F), the Sentencing Commission has

recently proposed amendments to that Guideline and the Commentary

thereto. See Proposed Amendments to the Federal Sentencing

Guidelines, 60 Crim. L. Rep. (BNA) 2019, 2034 (Jan. 15, 1997).

Significantly, the amendment deletes from the Guideline itself

reference to "express" in the clause "an express threat of death."

That clause is the source of the difficulty I identified in Part

I. This deletion suggests that, whatever the Commission's

intention may originally have been (the Commission writes that the

amendments are crafted "to clarif[y] the Commission's intent to

enhance offense levels for defendants whose intimidation of the

victim exceeds that amount necessary to constitute an element of a

robbery offense"), its original drafting prevented the courts from

uniformly effectuating that intention. That the Commission had to

remove "express" from the Guideline itself, in order now to ensure

uniform application of the Guideline in the courts, makes clear

that the original Commentary was without legal force. The

Commission impliedly recognizes that the Commentary was

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inconsistent with the Guideline text, the very inconsistency Judge

Easterbrook described in Hunn.

In sum, while in cases that arise after the effective

date of the Amendment (assuming that it passes) the district

courts will be authorized to impose an upward adjustment on the

basis of any intimidation of the victim that exceeds that amount

necessary to constitute an element of a robbery offense, in the

present case the Guideline must be construed to require an express

threat of death. Because the record contains no evidence of such

a threat, I would vacate the judgment and remand for resentencing.

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