[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 26, 2005
No. 05-10752 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00002-CR-RH-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN EARNEST,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Florida
_________________________
(September 26, 2005)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Benjamin Earnest appeals his 137-month sentence, imposed after he pled
guilty to thirteen counts of bank robbery and attempted bank robbery, in violation
of 18 U.S.C. § 2113(a). According to the Presentence Investigation Report
(“PSI”), in the course of robbing a bank, Earnest handed a bank teller a note, which
read: “I have gun, do not alert anyone, give me all the money from the drawer
now.” At sentencing, the district court enhanced Earnest’s sentence, pursuant to
U.S.S.G. § 2B3.1(b)(2)(F), which provides for a 2-level offense level enhancement
“if a threat of death was made” during the robbery. See U.S.S.G. § 2B3.1(b)(2)(F).
On appeal, Earnest argues that the written statement that he had a gun was
not an affirmative statement of intended deadly action, such that it would cause a
bank teller to have a fear of death. He urges us to reconsider and overrule our
decision in United States v. Murphy, 306 F.3d 1087 (11th Cir. 2002), in which we
held that a written note, given to a bank teller during a bank robbery and stating
that the defendant had a gun, constituted a “threat of death,” even though the
defendant made no express threat to use the gun, thereby supporting an
enhancement under § 2B3.1(b)(2)(F). See 306 F.3d at 1088-89. In a footnote in
Murphy, we specifically rejected the position, stated in the dissenting opinion in
United States v. Clark, 294 F.3d 791, 797 (6th Cir. 2002), which Earnest asserts we
should adopt here, that a robber’s intent is not determinative because “guns are
widely known to be capable of producing death.” 306 F.3d at 1089 n.1.
Under our prior panel precedent rule, Murphy is the controlling law on the
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instant issue and we must follow it here. See United States v. Hogan, 986 F.2d
1364, 1369 (11th Cir. 1993) (“[I]t is the firmly established rule of this Circuit that
each succeeding panel is bound by the holding of the first panel to address an issue
of law, unless and until that holding is overruled en banc or by the Supreme
Court.”). Accordingly, we affirm Earnest’s sentence.
AFFIRMED.
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