United States v. Gordon Goodwin , 545 F. App'x 204 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4958
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GORDON MILLER GOODWIN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cr-00213-CCE-1)
Submitted: October 22, 2013 Decided: November 1, 2013
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George E. Crump, III, Rockingham, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gordon Miller Goodwin appeals the forty-seven month
sentence imposed after he pled guilty, pursuant to a plea
agreement, to one count of bank robbery, in violation of 18
U.S.C. § 2113(a) (2006). On appeal, Goodwin argues that the
district court erred in imposing a two-level enhancement
pursuant to U.S. Sentencing Guidelines Manual (USSG)
§ 2B3.1(b)(2)(F) (2011), because a threat of death was made. We
affirm.
In effecting the robbery, Goodwin produced a note that
stated, among other things, that he possessed a gun. As the
teller was reading the note and collecting the money, Goodwin
made movements with his hands near his waist. The district
court found that the statement that Goodwin had a gun was a
threat of death that was bolstered by the movements of his
hands. Goodwin argues that the district court erred in
concluding that the statement “I have a gun” was a threat to use
the gun and in its finding that Goodwin’s motions at his waist
supported the threat.
We review a sentence for procedural and substantive
reasonableness under an abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). Miscalculation of the
Guidelines range is a significant procedural error. Id. at 51.
This court reviews “de novo the district court’s legal
2
interpretation of guidelines terminology and its application of
the guidelines to a known set of facts.” United States v.
Franks, 183 F.3d 335, 337 (4th Cir. 1999). The district court’s
factual findings are reviewed for clear error. United States v.
Llamas, 599 F.3d 381, 387 (4th Cir. 2010).
In Franks, the court affirmed an enhancement for a
threat of death based on a bank robber’s note that stated, “You
don’t have to give me all your cash. No dye packs. I have a
gun. I have nothing to lose.” Franks, 183 F.3d at 337. The
court noted that a threat to shoot a teller is a threat of
death, and concluded that the note in question “can only be
meant to indicate that Franks is both armed and prepared to use
his gun.” Id. at 338. In rejecting Franks’ arguments, the
court also noted that the Sentencing Commission amended
§ 2B3.1(b)(2)(F) in 1997 by deleting the requirement of an
“express” threat of death, and explained that the enhancement
applied to actions by the defendant that “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. at 338-39.
Goodwin acknowledges the holding in Franks, as well as
the court’s earlier decision in United States v. Murray, 65 F.3d
1161 (4th Cir. 1995), which also affirmed a threat of death
enhancement. Goodwin argues, however, that his note merely
3
stated that he possessed the gun, while the examples in the
Guidelines commentary and the note and statements in Franks and
Murray include critical additional language that evinced a
willingness to use the gun if the robber’s demands were not
satisfied. Goodwin’s arguments are unavailing. Courts
reviewing a threat of death enhancement have uniformly concluded
that a robber’s statement that he has a gun can justify the
enhancement. United States v. Jennings, 439 F.3d 604, 610-11
(9th Cir. 2006) (collecting cases). The district court did not
err in finding that Goodwin’s note met the requirements for
imposition of the enhancement.
Goodwin also argues that the district court erred in
interpreting his hand gestures as supporting the enhancement
because they essentially bolstered his statement that he had a
gun. He asserts that the surveillance video shows that the
teller was not subjectively in fear of death because she asked a
customer to stop Goodwin because he had left his identification
at the teller window. Goodwin does not dispute that he made
several movements with his hands in the area of his waist, but
merely disagrees with the district court’s interpretation of
those movements as corroborating the statement in the note that
he had a gun. However, Goodwin’s mere disagreement does not
establish that the district court clearly erred in its factual
finding. Finally, Goodwin cites a Sixth Circuit decision and
4
argues that the video presents mitigating circumstances such
that the statement “I have a gun” in the note did not constitute
a threat of death. United States v. Wooten, 689 F.3d 570 (6th
Cir. 2012). Our review leads us to conclude that Wooten is
distinguishable, and that the totality of the circumstances of
the robbery did not dilute the threat stated by Goodwin’s note.
Accordingly, we affirm Goodwin’s sentence. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
5