United States v. Jennings

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, No. 04-10343

v.

 D.C. No.

CR-03-00376-PMP

DAVID FRANK JENNINGS, a/k/a Mike

Frank Stout, OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, District Judge, Presiding

Argued and Submitted

September 13, 2005—San Francisco, California

Filed March 2, 2006

Before: Betty B. Fletcher, John R. Gibson,* and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon;

Concurrence by Judge Gibson

*The Honorable John R. Gibson, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation.

2131

2134 UNITED STATES v. JENNINGS

COUNSEL

Daniel G. Bogden, United States Attorney, Camille W.

Damm, Assistant United States Attorney, and J. Gregory

Damm, Assistant United States Attorney, Las Vegas, Nevada,

for the plaintiff-appellant.

Franny A. Forsman, Federal Public Defender, and Jason Carr,

Assistant Federal Public Defender, Las Vegas, Nevada, for

the defendant-appellee.

OPINION

BERZON, Circuit Judge:

This appeal presents the question left open by this court in

United States v. France, 57 F.3d 865 (9th Cir. 1995): Whether

a defendant who, in the course of a bank robbery, states that

he has a gun but makes no reference to his willingness to use

it is subject to a two-level sentencing enhancement for a

“threat of death” pursuant to United States Sentencing Guide-

lines (U.S.S.G. or Guidelines) § 2B3.1(b)(2)(F).1 Although we

1

Unless otherwise indicated, all citations in this opinion are to the 2003

edition of the Guidelines.

UNITED STATES v. JENNINGS 2135

decline to impose a per se rule in answer to this question, we

hold that under most circumstances, a bank robber’s statement

that he has a gun is sufficient to instill a fear of death in a rea-

sonable victim and therefore warrants the threat-of-death

enhancement.

I.

On the afternoon of August 14, 2003, the defendant, David

Frank Jennings, entered a Bank of America branch in Las

Vegas, Nevada, approached a teller and demanded money,

stating: “Put all your money on top of the counter. I have a

gun. Just do it now.” The teller summoned the bank manager,

who approached the teller window. Jennings then told the

manager: “Sir, tell her to put the money on the counter, hurry

up.” Jennings fled on foot with just over one thousand dollars

in cash. He was apprehended shortly thereafter and arrested.

Jennings was indicted for bank robbery in violation of 18

U.S.C. § 2113(a). After he pleaded guilty, the Department of

Probation prepared an initial presentence report (PSR), rec-

ommending a two-level enhancement for robbery of a finan-

cial institution and a three-level downward adjustment for

acceptance of responsibility. The government filed an objec-

tion to the initial PSR arguing for the imposition of a two-

level enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(F),

which provides: “if a threat of death was made, increase by

2 levels.” After considering the government’s objection, the

Department of Probation agreed that the enhancement was

warranted and amended the PSR to reflect the application of

the two-level increase, resulting in a sentencing range of 70-

87 months.

At Jennings’s sentencing hearing the district court enter-

tained argument on the threat-of-death enhancement. Both

Jennings and his attorney stated that there were no factual

errors in the revised PSR.2 After an extensive colloquy, the

2

In the proceedings before the district court, defense counsel initially

refused to concede that Jennings had made the statement in question, spe-

2136 UNITED STATES v. JENNINGS

district court sustained the defendant’s objection to the two-

level sentence enhancement, holding that, taken in context,

Jennings’s statement did not warrant the adjustment. Noting

that neither the commentary to the Guidelines nor the Ninth

Circuit’s opinion in France states that simply asserting that

one has a gun is sufficient to constitute a threat of death, the

court concluded that Jennings’s statement “alone without

more is simply not sufficient” to justify the enhancement. In

addition, the district court foreshadowed this appeal by not-

ing: “I think the Ninth Circuit is entitled to revisit this issue.

I hope they will. I hope this case will be employed to revisit

it. I think it would be an excellent crystal-clear case to do

that.”

After the two-level enhancement was stricken, the applica-

ble Guidelines range was 57-71 months. Consistent with the

Department of Probation’s revised mid-range recommenda-

tion, the district court sentenced Jennings to a prison term of

63 months. The government timely appealed.

II.

Jennings suggests that we should decline to decide the gov-

ernment’s appeal of the district court’s interpretation of the

Guidelines because of the intervening decision in United

States v. Booker, 125 S. Ct. 738 (2005). After Booker, district

courts must consider but need not follow the formerly manda-

tory aspects of the Guidelines. Id. at 764-65. In the post-

Booker world of advisory Guidelines, after this court has clar-

cifically noting in the defendant’s Objections to the Presentence Report

that the argument in opposition to the enhancement proceeded on the

assumption that the statement was, in fact, made. During oral argument on

appeal, however, defense counsel conceded that when Jennings and his

attorney agreed that the PSR contained no factual errors, they were con-

ceding that Jennings had in fact told the teller that he had a gun. Accord-

ingly, we proceed on the understanding that Jennings made the statement

alleged.

UNITED STATES v. JENNINGS 2137

ified the interpretation of the Guidelines a district court could

impose the same sentence on remand. Still, because district

courts must, after Booker, consult the Guidelines for advice in

fashioning appropriate sentences and must do so accurately,

we continue to address challenges to pre-Booker district court

interpretations of the Guidelines. See United States v. Kim-

brew, 406 F.3d 1149, 1152 (9th Cir. 2005); see also United

States v. Cantrell, ___ F.3d ___, No. 03-30562, 2006 WL

73483, at *5 (9th Cir. Jan. 13, 2006); United States v.

Moreno-Hernandez, 419 F.3d 906, 916 n.10 (9th Cir. 2005).

Jennings’s broad objection to the continued vitality of this

appeal is therefore not well taken.3

Although a defendant’s overall sentence under the Guide-

lines is reviewed for reasonableness, see Booker, 125 S. Ct. at

765-66, within the reasonableness inquiry “[t]he district

court’s interpretation of the Sentencing Guidelines is a ques-

tion of law which is subject to de novo review, while factual

determinations made in the course of applying the guidelines

are reviewed for clear error.” See United States v. Lindholm,

24 F.3d 1078, 1085 (9th Cir. 1994).

3

Kimbrew did not consider the question whether the now-advisory

nature of the Guidelines has rendered the precise computation of a Guide-

line range unnecessary in a certain range of cases that require complicated

factual determinations, such as the amount of monetary loss. There may

be little point in requiring district courts to engage in the purely academic

exercise of resolving complicated factual questions in order to delineate an

exact Guidelines range if the court has already settled on a reasonable sen-

tence in light of the factors set forth in 18 U.S.C. § 3553(a). Although the

Second Circuit has determined that, in such cases, a precise calculation is

not always necessary, see United States v. Crosby, 397 F.3d 103, 112 (2d

Cir. 2005), the Ninth Circuit has not yet reached this issue. See Cantrell,

2006 WL 73483, at *6 n.3 (noting but not deciding same issue). Given that

the threat-of-death enhancement ordinarily does not present a difficult fac-

tual issue — and that here, the defendant has conceded that the statement

at issue was in fact made — this case is not a proper vehicle to consider

the question. Accordingly, as we did in Cantrell, we leave that question

for another day.

2138 UNITED STATES v. JENNINGS

As a preliminary matter, to determine the proper standard

of review we must establish the correct characterization of the

district court’s decision on the applicability of the threat-of-

death enhancement. Jennings’s argument that the district court

was making a factual determination, reviewable only for clear

error, reflects the district court’s statement that the question

whether to impose the enhancement was a “very factually-

specific assessment that has to be made looking at the facts

and the words that are used, the gestures that are used, [and]

the circumstances” and that the statement needed to be evalu-

ated “in the context in which it was made.” In contrast to

these statements, however, is the district court’s remark that

the government should appeal its decision to this court to

resolve a generic issue, indicating that the court was rendering

a legal determination as to whether a statement such as the

one made by Jennings could ever qualify as a threat of death.

In addition, despite the district court’s reference to context

and the circumstances surrounding the robbery, at no time

during the colloquy did the district court explain what, if any,

circumstances it relied upon to conclude that Jennings did not

make a threat of death. We therefore view the district court’s

decision that Jennings’s proclamation to the bank teller “alone

without more is simply not sufficient” as making a legal

determination that the bald statement “I have a gun” is legally

insufficient, standing alone, to amount to a threat of death.

[1] In further support of his contention that our review in

this case should be for clear error, Jennings relies on a single

statement from our prior decision in France, where we con-

sidered § 2B3.1(b)(2)(F) and concluded that the district

court’s finding that the enhancement applied was not “clearly

erroneous when considered in the context of a bank robbery.”

France, 57 F.3d at 868. Three sentences after that statement,

however, we clarified that our holding affirming the district

court was premised on the dual conclusions that “the district

court properly interpreted and applied U.S.S.G.

§ 2B3.1(b)(2)(F)” and that “[t]he district court’s factual find-

ings were not clearly erroneous.” Id. Thus, our decision in

UNITED STATES v. JENNINGS 2139

France is best understood as recognizing that the decision to

impose such an enhancement involves both a legal conclusion

— whether the statement at issue could ever, as a matter of

law, constitute a threat of death — and a factual determination

— whether, under the specific circumstances present, the

statement was in fact a threat of death. We therefore take this

opportunity to clarify what was implicit in France, and hold

that whether a bank robber’s statement can constitute an

express threat of death is a legal interpretation of the Guide-

lines, which is reviewed de novo, but whether the statement

itself, taken in context, amounts to a threat of death under the

circumstances is a factual determination, which is reviewed

for clear error.4

[2] Accordingly, we review de novo the district court’s

conclusion that the lone statement “I have a gun” is, as a mat-

ter of law, insufficient to warrant a threat-of-death enhance-

ment. It is to that question that we now turn.

4

The Seventh Circuit has concluded, as do we, that the application of

the threat-of-death enhancement actually involves two separate determina-

tions, one legal and the other factual. See United States v. Gibson, 155

F.3d 844, 846 (7th Cir. 1998) (holding that “[w]hether a robber’s state-

ment can constitute an express threat of death involves the legal interpreta-

tion of a sentencing guideline” which is reviewed de novo but “[w]hether

the statement amounts to a threat of death under the circumstances is a

factual question” to be reviewed for clear error); see also United States v.

Gray, 177 F.3d 86, 91-92 (1st Cir. 1999) (applying de novo review to “the

trial court’s interpretation of the guidelines or its final determination to see

whether the facts here supported a finding that [the defendant] made a

threat of death” but applying clear error review as to any “factual dis-

putes”). Both the Fifth and Sixth Circuits, in contrast, have held that the

applicability of the threat-of-death enhancement is a legal determination.

See United States v. Soto-Martinez, 317 F.3d 477, 478-79 (5th Cir. 2003)

(holding that when the facts of a robbery are undisputed, the imposition

of the enhancement is a question of the application of the Guidelines, to

be reviewed de novo); United States v. Winbush, 296 F.3d 442, 443 (6th

Cir. 2002) (“Whether these facts warrant a sentence enhancement pursuant

to § 2B3.1(b)(2)(F) is a legal conclusion subject to de novo review.”).

2140 UNITED STATES v. JENNINGS

III.

[3] The Guidelines provision at issue in this case, U.S.S.G.

§ 2B3.1(b)(2)(F), imposes a two-level increase to a defen-

dant’s base offense level when a “threat of death” was made

during the commission of a criminal offense. The commen-

tary applicable to this enhancement reads:

“A 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. Accordingly,

the defendant does not have to state expressly his

intent to kill the victim in order for the enhancement

to apply . . . . 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. As further elaboration, the com-

mentary lists several examples of statements that would war-

rant the threat-of-death enhancement, including:

“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 defen-

dant draws his hand across his throat in a slashing

motion)”, or “Give me the money or you are dead.”

Id. Absent from the list of examples provided in the commen-

tary to § 2B3.1 is a statement, like the one made by Jennings,

in which a bank robber claims to have a weapon but does not

in any manner threaten to use the weapon, or any force at all,

in the course of the robbery.

We begin our analysis with our prior decision in France, in

which we considered the applicability of the threat-of-death

UNITED STATES v. JENNINGS 2141

enhancement contained in § 2B3.1(b)(2)(F). In France, the

bank-robbery defendant passed the teller a note which stated

“Give me all the 100s and 50s in your drawer. I have dyna-

mite.” France, 57 F.3d at 865. Under the then-existing ver-

sion § 2B3.1(b)(2)(F), a defendant was subject to a two-level

enhancement for an “express threat of death,” defined by the

commentary as a statement “that would instill in a reasonable

person, who is the victim of the offense, significantly greater

fear than that necessary to constitute an element of the offense

of robbery.” U.S.S.G. § 2B3.1(b)(2)(F) (1995); id. § 2B3.1

cmt. n.6.

[4] France held that when considering the applicability of

the threat-of-death enhancement, courts are to conduct an

objective inquiry into the effect the defendant’s words and

actions would have on a reasonable victim. France, 57 F.3d

at 866. We concluded that a reasonable teller reading the

demand note at issue “would experience significantly greater

fear than the level of intimidation necessary to constitute an

element of the offense of robbery.” Id. at 866-67. The refer-

ence to “I have dynamite,” we determined, was akin to the

commentary’s grenade example even though France did not

specifically threaten to use the dynamite to blow up the teller

or the bank. Id. at 867.

In the course of our analysis in France, we noted disagree-

ment with the Eleventh Circuit, which had concluded that

phrases such as “I have a gun” and “I have a gun and nothing

to lose” were insufficiently “direct, distinct, or express” to

constitute “express threat[s] of death.” Id. (quoting United

States v. Tuck, 964 F.2d 1079, 1081 (11th Cir. 1992)). The

Eleventh Circuit’s view, we stated in France, was “unneces-

sarily cramped” because it would require a bank robber to use

“magic words,” such as “I will use the dynamite if you don’t

give me the money.” Id. at 868. Nonetheless, we concluded

the France opinion by declining to answer the question

directly presented by this case: “Finally, we need not decide

in this case whether § 2B3.1(b)(2)(F) would apply to a defen-

2142 UNITED STATES v. JENNINGS

dant who announced during a robbery that he had a gun. In

this case France claimed to have dynamite, which could blow

up the entire bank, not just the people in the immediate vicini-

ty.” Id. The government now asks that we reach the question

left unanswered by France.

[5] Before embarking on that inquiry, we respond to Jen-

nings’s argument that we are no longer bound by our holding

and reasoning in France because of an intervening change in

the language of the Guidelines provision at issue. After

France was decided, the United States Sentencing Commis-

sion amended the text of § 2B3.1 in two significant respects.

While the prior language mandated the two-level enhance-

ment for an “express threat of death,” the amended guideline

softened this standard by removing the requirement that

threats be “express.” Compare U.S.S.G. § 2B3.1(b)(2)(F)

(2003) with U.S.S.G. § 2B3.1(b)(2)(F) (1995). In addition, the

Sentencing Commission amended the commentary to change

the requirement that a threat instill “significantly greater fear

than that necessary to constitute an element of the offense of

robbery” to a requirement that the threat instill “a fear of

death.” See U.S.S.G. app. C, amend. 552 (2005). According

to the Guidelines Manual, the text was amended to address

the circuit conflict discussed in France. See id. The Sentenc-

ing Commission adopted the majority view, which applied the

enhancement “when the combination of the defendant’s

actions and words would instill in a reasonable person in the

position of the immediate victim (e.g., a bank teller) a greater

amount of fear than necessary to commit the robbery.” Id.

(citing United States v. Robinson, 86 F.3d 1197, 1202 (D.C.

Cir. 1996) and United States v. Murray, 65 F.3d 1161, 1167

(4th Cir. 1995)). Thus, the amendment of § 2B3.1 was

designed to endorse the general, objective approach taken by

the Ninth Circuit in France and to reject the “cramped”

requirement of “direct” threats advanced by the Eleventh Cir-

cuit. See United States v. Day, 272 F.3d 216, 220 (3d Cir. 2001).5

5

Tellingly, after the 1997 amendments the Eleventh Circuit recognized

that its prior view was no longer correct and concluded that the statement

“I have a gun” is sufficient to constitute a threat of death. See United

States v. Murphy, 306 F.3d 1087, 1089-90 (11th Cir. 2002).

UNITED STATES v. JENNINGS 2143

Accordingly, contrary to Jennings’s claim, the holding and

reasoning in France remains authoritative.

Jennings is correct, of course, that the phrase “fear of

death” suggests a different inquiry than the phrase “signifi-

cantly greater fear than that necessary to constitute an element

of the offense of robbery.” In neither France nor in this case,

however, was there any doubt that if there was an actual

threat, it was a threat of death, not of some lesser injury.

Although the Ninth Circuit has not considered the applica-

tion of § 2B3.1 since the 1997 amendments, every other cir-

cuit to consider the issue of whether “I have a gun”

constitutes a threat of death under the current version of the

Guidelines has answered that question in the affirmative. See

United States v. Jennette, 295 F.3d 290, 292 (2d Cir. 2002)

(holding that the statement “I have a gun” is a threat of death

because a reasonable teller, upon hearing the statement, “nor-

mally and reasonably would fear that his or her life is in dan-

ger”); Day, 272 F.3d at 218 (holding that “I have a gun” is a

threat of death under the “broad[er]” amended enhancement);

United States v. Franks, 183 F.3d 335, 338 (4th Cir. 1999)

(holding that a note stating “I have a gun. I have nothing to

lose” warrants the threat-of-death enhancement because a rea-

sonable teller would have been in fear for her life); United

States v. Soto-Martinez, 317 F.3d 477, 479 (5th Cir. 2003)

(holding that “I have a gun” is sufficient to justify the sen-

tencing enhancement because it merely requires a teller to

make the reasonable inference that a robber would use the gun

he claimed to have if he did not receive the money he

demanded); United States v. Winbush, 296 F.3d 442, 443 (6th

Cir. 2002) (holding that “I have a gun” merits an enhance-

ment because a reasonable teller would believe that failure to

comply “would result in being fatally shot”); United States v.

Gibson, 155 F.3d 844, 846-47 (7th Cir. 1998) (holding that

the statement “I have a gun” absent mitigating circumstances

would lead an ordinary teller to fear being shot); United States

v. Roberts, 253 F.3d 1131, 1137 (8th Cir. 2001) (noting in

2144 UNITED STATES v. JENNINGS

dicta that a defendant’s statement that he had a gun would be

sufficient to warrant two-level enhancement); United States v.

Arevalo, 242 F.3d 925, 928 (10th Cir. 2001) (holding that the

statement “I have a gun” would cause a reasonable teller to

fear being shot and that the phrase “[I] am willing to use it”

would make a fear of death even more likely); United States

v. Murphy, 306 F.3d 1087, 1089 (11th Cir. 2002) (holding

that a demand note that read “You have ten seconds to hand

me all the money in your top drawer. I have a gun” warranted

the two-level enhancement because a reasonable teller would

interpret the statement to mean: “If I do not give this robber

money within ten seconds, I will be shot; and people who are

shot often die.”).

[6] Guided by the text and commentary of § 2B3.1, our

prior decision in France, and the reasoning of the nine other

circuit courts to consider the issue, we have no difficulty in

concluding that a bank robber’s plain statement that he has a

gun can justify a threat-of-death enhancement.

[7] Both the commentary of § 2B3.1 as well as the lan-

guage of France require the courts to apply an objective

approach to determine whether a given statement qualifies as

a threat of death. U.S.S.G. § 2B3.1 cmt. n.6; France, 57 F.3d

at 866. The emphasis, then, is on how a reasonable teller, as

the victim of the robbery, would view the statement. Both a

bank robber’s intent in making the statement and the likeli-

hood that he actually would have used deadly force are both

irrelevant. See Murphy, 306 F.3d at 1089 n.1 (“We do not

understand the robber’s intent to be determinative . . . . A

threatened shooting might have a different effect on the

shooter than on the potential target: The shooter might intend

at most to harm, but the target might reasonably fear that the

shot would be fatal.”); United States v. Gray, 177 F.3d 86, 92

(1st Cir. 1999) (finding “no meaningful difference” in the fact

that the robber was not actually carrying a gun during the

course of the robbery because the teller “could not have dis-

cerned that from all the outward signs”).

UNITED STATES v. JENNINGS 2145

In addition, because the objective approach is based on the

likely reaction of a reasonable teller, an examination into the

subjective reaction of one specific teller is also inappropriate.

The commentary to § 2B3.1 states that the enhancement

should apply when a statement 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. Any other approach would create

a windfall for defendants who fortuitously selected to victim-

ize a bank teller with an unusually thick skin.

[8] At the same time, the objective approach requires that

courts take into account the overall context in which a state-

ment is made. Thus, as the Seventh Circuit has noted, a rob-

ber’s statement that he has a gun will not always amount to

a threat of death, given the inquiry’s “sensitivity to fact and

context.” Gibson, 155 F.3d at 847. Rather, “[i]t is conceivable

that unusual mitigating circumstances accompanying [the]

statement could deprive the words of their ordinary and

expected meaning.” Id. (internal quotation marks omitted).

We therefore hold that in most, but not all, circumstances,

statements such as “I have a gun” are sufficient to instill a fear

of death in a reasonable victim and warrant the

§ 2B3.1(b)(2)(F) enhancement. We agree with the Seventh

Circuit, however, that there could be circumstances that

would sufficiently dilute the phrase “I have a gun” so that it

would not qualify as a death threat. An example would be a

situation in which a bank robber claimed to have a gun but

brandished what was quite obviously a toy. Thus, it is the

objective, reasonable teller standard adopted in France that

ultimately governs in light of all the circumstances, not any

per se rule.

In this respect, we deviate from the reasoning of the district

court, which made the converse determination, concluding

that the “statement alone without more is simply not suffi-

cient.” In the context of a bank robbery, a reasonable teller

would assume that “I have a gun” was a threat, not an effort

2146 UNITED STATES v. JENNINGS

on the part of the bank robber to propose the sale of a firearm

or to open debate on the historical underpinnings of the Sec-

ond Amendment. See United States v. Figueroa, 105 F.3d

874, 879 (3d Cir. 1997) (asking “what is the purpose of

announcing the presence of a weapon other than to convey to

the victim that the weapon will be used unless the victim

complies with the robber’s demands?”). Moreover, it is not

unreasonable for a teller to perceive such a threat to be

deadly, as “[g]uns are widely known to be capable of produc-

ing death.” Murphy, 306 F.3d at 1089 n.1.

The distinction between dynamite and firearms mentioned

in France does not detract from this conclusion. As noted,

France observed that dynamite has the potential to destroy the

entire bank, not just individuals in the vicinity. France, 57

F.3d at 868. Although true, this consideration does not dem-

onstrate that the statement “I have a gun” does not also consti-

tute a threat of death. Guns are equally capable of causing

death. As the government noted in the proceedings before the

district court, incendiary devices, unlike guns, often have a

lag time, which would allow a victim time to flee or seek

cover. Furthermore, while the damage caused by a bomb can

be more massive and widespread, a robber can more easily

focus a pistol on one victim to ensure serious injury or death.6

In short, no significant difference exists between a bomb and

a gun to justify limiting applicability of § 2B3.1(b)(2)(F) to

the former but not the latter.

Jennings’s strongest argument to the contrary is that the

mere statement that one is armed with a firearm should not be

6

True, the greater control an individual has over a firearm would allow

a robber to direct the shot at the floor or the teller’s foot, thereby decreas-

ing the chances for death. Because the intent of the bank robber is not rele-

vant, however, this argument would necessitate a situation in which a

reasonable teller would conclude that the robber would not shoot to kill.

In the high-pressure context of a bank robbery, a reasonable teller is

unlikely to draw that inference, absent some unusual contextual circum-

stance.

UNITED STATES v. JENNINGS 2147

interpreted as rising to the level of a threat of death because

“[t]here must be some line of demarcation” between conduct

sufficient to satisfy a conviction for bank robbery and conduct

that would warrant the threat-of-death enhancement. The

assertion is that reading § 2B3.1(b)(2)(F) to encompass the

statement “I have a gun” would cause the enhancement to be

applied to “every conceivable circumstance” covered by

§ 2113(a), thereby making it part of the base offense level.

This argument is unavailing for a number of reasons.

First, it fails to account for the fact that § 2B3.1(b)(2)(F)

applies to various robbery, extortion, and blackmail offenses

and not simply the bank-robbery offense for which Jennings

was indicted. See U.S.S.G. § 2B3.1. Even if Jennings’s

offense conduct was determined to be coterminous with the

enhancement, it does not necessarily follow that the threat-of-

death enhancement would be grafted onto all crimes covered

by § 2B3.1.

Furthermore, a reading of the statute under which Jennings

was indicted and convicted reveals that the threat-of-death

enhancement would not be applied in “every conceivable cir-

cumstance” under the statute. 18 U.S.C. § 2113(a) covers not

only individuals who take property from a bank “by force and

violence, or by intimidation,” as did Jennings, but also those

who obtain property from a bank by extortion and those who

enter a bank with the intent to commit a felony therein.7 See

18 U.S.C. § 2113(a).

7

The full text of 18 U.S.C. 2113(a) reads as follows:

Whoever, by force and violence, or by intimidation, takes, or

attempts to take, from the person or presence of another, or

obtains or attempts to obtain by extortion any property or money

or any other thing of value belonging to, or in the care, custody,

control, management, or possession of, any bank, credit union, or

any savings and loan association; or

Whoever enters or attempts to enter any bank, credit union, or

any savings and loan association, or any building used in whole

2148 UNITED STATES v. JENNINGS

Jennings’s contention also does not recognize the fact that

one can commit a robbery with force or intimidation without

threatening lives. See Jennette, 295 F.3d at 292 (holding that

because it is not strictly necessary under the statute for a vic-

tim to fear death, the guideline enhancement is not cotermi-

nous with the basic offense conduct); United States v.

Bingham, 628 F.2d 548, 549 (9th Cir. 1980) (holding that

bank robbery by intimidation can be committed without “ex-

press threats of bodily harm, threatening body motions, or the

physical possibility of concealed weapon[s]”). It takes no

stretch of the imagination to proffer examples of statements

by bank robbers that would not justify the two-level enhance-

ment. As the Seventh Circuit observed, a demand note that

stated “give me the money and keep your mouth shut” would

be insufficient to warrant the enhancement. United States v.

Jones, 83 F.3d 927, 929 (7th Cir. 1996). Likewise, a bank

robber could threaten to hit a bank teller with his fist, or to tie

him up and lock him in a room. While either threat would cer-

tainly suffice for robbery by intimidation, it would be unlikely

for a reasonable teller to fear death under those circumstances.

Finally, Jennings’s argument fails to account for the fact

that the other sentencing enhancement he received, for taking

the property of a financial institution pursuant to U.S.S.G.

§ 2B3.1(b)(1), would always be applicable to bank-robbery

offenses under 18 U.S.C. § 2113(a). He offers no reason why

the threat-of-death enhancement must offer a “line of demar-

cation” when the financial institution enhancement clearly

does not.

or in part as a bank, credit union, or as a savings and loan associ-

ation, with intent to commit in such bank, credit union, or in such

savings and loan association, or building, or part thereof, so used,

any felony affecting such bank, credit union, or such savings and

loan association and in violation of any statute of the United

States, or any larceny —

Shall be fined under this title or imprisoned not more than twenty

years, or both.

UNITED STATES v. JENNINGS 2149

[9] In conclusion, while we decline to adopt a per se rule

that “I have a gun” will always constitute a threat of death

under § 2B3.1(b)(2)(F), we hold that, under ordinary circum-

stances, such a statement made by a bank robber would instill

a fear of death in a reasonable teller and therefore would jus-

tify the imposition of the two-level sentencing enhancement.

Absent any circumstances that would “deprive the words of

their ordinary and expected meaning,” see Gibson, 155 F.3d

at 847, “I have a gun” qualifies as a threat of death.

IV.

In sum, a bank robber’s statement that he has a gun is usu-

ally, but not always, sufficient to trigger the threat-of-death

enhancement. We stress that the test is whether the statement

is sufficient to instill a fear of death in a reasonable victim,

not the reaction of the particular teller — such as the decision

of the teller here to call her manager. Also, the defendant’s

exact words — for example, that Jennings added “Just do it

now” after “I have a gun,” implying urgency — may be perti-

nent in determining whether a reasonable teller would fear

death.

[10] In light of the conclusion that “I have a gun” can qual-

ify as a threat of death, we remand this case to the district

court to reconsider the applicability of the enhancement, tak-

ing into account all the pertinent circumstances, and to resen-

tence Jennings.8

REVERSED AND REMANDED.

8

Booker will, of course, apply at resentencing. See United States v.

Dupas, 419 F.3d 916, 920-21 (9th Cir. 2005).

2150 UNITED STATES v. JENNINGS

GIBSON, Circuit Judge, concurring:

The record demonstrates that the district court in the sen-

tencing colloquy acknowledged the language in, and based its

sentencing decision on, paragraph 7 of the Presentencing

Investigation Report which contained all of Jennings state-

ments, “I have a gun,” the “Just do it now” and “Hurry up”

utterances. The court today commences Part I by setting out

the full colloquy. It is clear that the district court acknowl-

edged the complete statement, which had been the subject of

statements by both the prosecutor and defense attorney, but

made the general ruling. “[B]ut I just don’t think that the

statement was made in the context in which it was made war-

rants the two level enhancement under Guideline

§ 2(b)(3)(1).”

It is evident the district court erred. The court’s opinion

today clarifies the rules applicable to the “I have a gun” utter-

ance.