United States of America v. Leon A. Thomas

PRECEDENTIAL
Filed May 1, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1140
UNITED STATES OF AMERICA
v.
LEON A. THOMAS,
Appellant
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)
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 24, 2003
Before: BECKER, Chief Judge, and SCIRICA,
Circuit Judges, and SHADUR, District Judge*
(Filed: May 1, 2003)
* The Honorable Milton I. Shadur, United States District Judge for the
Northern District of Illinois, sitting by designation.

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BURTON A. ROSE, ESQUIRE
Washington West Building
235 South 8th Street
Philadelphia, Pennsylvania 19106
Attorney for Appellant
VIRGIL B. WALKER, ESQUIRE
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
Attorney for Appellee
OPINION OF THE COURT
SCIRICA, Circuit Judge.
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.
I.
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’
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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 5K1.1 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.
II.
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 Cir. 2001).
Consequently, the fact that Thomas’s note did not expressly
mention death does not alone imply that he is not subject
to the enhancement.
In determining whether a threat is a “threat of death,” the
focus is on the reasonable response of the victim of the
threat. Courts are directed by the Sentencing Guidelines
Manual to “consider that the intent of this provision is to
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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 app. n.6. The District Court
correctly directed its focus to the question whether
Thomas’s note, which stated “a dye pack will bring me back
for your ass,” would have been viewed, under the
circumstances, as a threat of death by a reasonable teller
receiving the note.
A.
Thomas contends there is an important difference
between the statement, “I have a gun,” and a note stating,
“a dye pack will bring me back for your ass.” The former, he
claims, is a special kind of threat that is reasonably viewed
as implicitly threatening death. A gun is a deadly weapon;
its use is commonly intended to cause death. As we stated
in Figueroa, when a robber claims possession of a 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.” 105 F.3d at 880. By contrast, Thomas’s note
contained no reference to a gun or other deadly weapon,
and the government acknowledges that Thomas did not
otherwise threaten the tellers.
Thomas also refers to the examples of threats of death in
the Guidelines commentary. Each of them includes some
element from which it can be inferred that the threat is not
merely a threat of violence or harm, but one of death.1 Most
relevantly, the Guidelines state that an enhancement is
appropriate when a robber states, “Give me your money or
else (where the defendant draws his hand across his throat
1. The commentary states the following:
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 your 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 a threat of death.
U.S.S.G. § 2B3.1 app. n. 6.
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in a slashing motion).” U.S.S.G. § 2B3.1 app. n. 6. On
Thomas’s approach, this might be read as suggesting that
merely giving a general threat (“or else”) is not enough—
some particular indication that death is threatened, such
as by making a slashing motion across one’s neck, must
exist to separate threats of death from mere threats of
harm.
The Sentencing Commission’s limiting the enhancement
to threats of death counsels that this particular
enhancement does not subsume all threats. There may be
a difference between a threat of violence and a threat of
death. For this reason, a district court applying this
enhancement should identify the features of the threat, or
of the situation or context in which the threat is made, that
supports the conclusion that a reasonable victim would
understand that his life had been threatened.
Nevertheless, context can be everything in these cases. In
certain contexts, a general threat of violence may readily be
viewed as encompassing the possibility of death. This
determination requires a broad view of the situation that
cannot be reduced to a set of necessary and sufficient
conditions. Just as courts should not necessarily equate all
threats of violence with threats of death, they should not
require any specific feature of the threat to find that it is a
threat of death. The reasonable person will view threats as
deadly or not depending on innumerable aspects of the
situation in which they are made.
B.
In this case, there is no dispute as to what happened.
The threat in question was contained in a note that was
handed to a bank teller. And there is no real dispute as to
the applicable legal standard. A threat is a “threat of death”
if it would reasonably so appear to the receiver of that
threat—a standard the District Court applied. The question
is how the legal standard is to be applied to the facts.
Would a reasonable person in the place of the teller who
received the note view it as a threat to her life?
As noted, we are required to grant “due deference” to the
District Court’s application of the Guidelines to the facts.
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“Hence the question we must answer is what kind of
‘deference’ is ‘due.’ ” Buford v. United States, 532 U.S. 59,
63 (2001). The determination whether a threat amounts to
a threat of death is one in which “factual nuance may
closely guide the legal decision, with legal results depending
heavily upon an understanding of the significance of case-
specific details,” id. at 64, a feature particularly important
in determining the level of deference due a district court in
sentencing matters. Id.; United States v. Zats, 298 F.3d
182, 185 (3d Cir. 2002). Accordingly, it is appropriate to
employ a deferential standard of review to this
determination.
Whether Thomas’s threat was a threat of death or only a
threat of harm is not free from doubt. Under the penal code
and the Sentencing Guidelines, the penalties for robbery
necessarily contemplate that some threat has been made.
Thus, any threat of harm carries serious consequences, but
a threat of death is viewed as deserving of special sanction
as provided by Guideline 2B3.1(b)(2)(f). Treating all threats
in the course of a robbery as threats of death would defeat
the distinction the enhancement seeks to capture.
Nevertheless, given the inherently intimidating nature of a
bank robbery, it may be reasonable for a teller to believe
her life is at risk when she has been directly threatened. Of
course, the circumstances and context are paramount
considerations. This is reflected in the nature of our
appellate review.
In any event, under the facts here, we do not believe the
District Court clearly erred in finding that Thomas’s
statement, “a dye pack will bring me back on your ass,”
amounted to a threat of death.
Accordingly, we will affirm the judgment of sentence.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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