On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Criminal No. 01-cr-00230 (Honorable Petrese B. Tucker)
Before: Becker, Chief Judge, and Scirica,
Circuit Judges, and Shadur, District Judge *fn1
The opinion of the court was delivered by: Scirica, Circuit Judge.
Submitted Pursuant to Third Circuit LAR 34.1(a) February 24, 2003
This case requires us to determine the applicability of a United States Sentencing Guidelines sentencing enhancement for making a "threat of death" in connection with a robbery. The District Court found that defendant Leon Thomas had implicitly made such a threat in a note he handed to a bank teller in the course of a bank robbery, and consequently imposed a two-level enhancement. We will affirm.
On June 4, 2001, Leon Thomas pleaded guilty to two counts of bank robbery, in violation of 18 U.S.C. § 2113(a). It is uncontested that during the course of one of the robberies, Thomas handed a bank teller a note reading:
Do exactly what this says, fill the bag with $100s, $50s and $20s, a dye pack will bring me back for your ass, do it quick now. Truely yours.
On January 3, 2002, Thomas was sentenced to forty months' incarceration and three years' supervised release. He was also required to pay $6,807 in restitution. The District Court arrived at this sentence by first determining that Thomas's offense level was twenty-three, which prescribes a range of fifty-seven to seventy-one months' imprisonment for those, like Thomas, having a criminal history category of III. The court then granted the government's motion to depart downward under United States Sentencing Guideline section 5K1.*fn2 for substantial assistance, and sentenced defendant to forty months in prison.
In determining the original offense level, the District Court applied a two-level enhancement under United States Sentencing Guideline section 2B3.1(b)(2)(f), which applies "if a threat of death was made" in connection with the robbery. Thomas contends the District Court erred in applying this enhancement. Accordingly, Thomas argues the District Court should have begun with an offense level of twenty-one and departed downward from there.
Our review of a district court's interpretation of the Sentencing Guidelines is plenary. United States v. Day, 272 F.3d 216, 217 (3d Cir. 2001). We review determinations of fact for clear error. United States v. Carr, 25 F.3d 1194 (3d Cir. 1994). Furthermore, we must "give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e).
Before 1997, the Guideline at issue required an "express threat of death." Even under that formulation, we held that the statement "I have a gun," because it might be seen by a reasonable person as a clear threat to her life, could give rise to a two-level enhancement under section 2B3.1(b)(2)(f). United States v. Figueroa, 105 F.3d 874, 880 (3d Cir. 1997). In 1997, the Sentencing Commission modified the guideline by omitting the word "express." We have held that the amendment "broadened the Guideline rather than narrowed it." United States v. Day, 272 F.3d 216, 218 (3d ...