Third Circuit disposition — 063456np-pdf

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 06-3456 and 06-3503
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UNITED STATES OF AMERICA
vs.
WILLIAM WALKER,
Appellant in 06-3456
UNITED STATES OF AMERICA
vs.
DAVID SCHENCK,
Appellant in 06-3503
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim No. 05-cr-00310)
District Judge: Honorable Gustave Diamond
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Submitted Under Third Circuit L.A.R. 34.1(a)
November 1, 2007
Before: RENDELL, WEIS and NYGAARD, Circuit Judges.
(Filed: November 8, 2007)
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OPINION

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WEIS, Circuit Judge.
Defendants Walker and Schenck were convicted of bank robbery in
violation of 18 U.S.C. § 2113(a). Their appeals have been consolidated. Schenck was
sentenced to 70 months incarceration and Walker to 57 months.
On September 2, 2005, Schenck entered a bank and handed the teller a
plastic bag along with a note stating, “Put all money in the bag nobody will get hurt or
you die.” After the teller handed him some money, Schenck left the bank and handed the
money to Walker, who had been waiting outside. The two then split up in an effort to foil
any pursuit.
In calculating the applicable Guidelines range for both defendants, the
District Court added a two point enhancement under U.S.S.G. § 2B3.1(b)(2)(F) for a
threat of death. Defendants appeal only the threat of death enhancement. They argue that
a reasonable person would not be put in fear of death by the demand note because
Schenck was “visibly intoxicated and noticeably homeless” and that their argument is
supported by the teller’s testimony that she did not really believe that Schenck’s demand
was real. We conclude that the District Court did not err in its ruling.
We have held that the test for application of the threat of death
enhancement is the effect on a reasonable person. See United States v. Thomas, 327 F.3d
253, 255 (3d Cir. 2003). The teller’s response is irrelevant because this is an objective,

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rather than a subjective, standard. Under the facts here, the District Court did not err in
concluding that a reasonable person in the teller’s position would believe her life was
threatened. The argument that Schenck was visibly intoxicated and harmless was just that
– mere argument. No evidence to this effect was produced.
Accordingly, the judgment of the District Court will be affirmed.

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