United States v. Martin , 47 F. App'x 218 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4085
JOHN ADAM MARTIN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Henry M. Herlong, Jr., District Judge.
(CR-01-440)
Submitted: August 29, 2002
Decided: September 24, 2002
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Isaac Louis Johnson, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MARTIN
OPINION
PER CURIAM:
John Adam Martin pled guilty to two counts of bank robbery, 18
U.S.C. § 2113(a) (2000), and was sentenced to a term of sixty months
imprisonment. Martin’s attorney has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), contesting two- and three-level
enhancements under U.S. Sentencing Guidelines Manual
§ 2B3.1(b)(2)(F)-(E) (2001), but asserting that in his view there are
no meritious issues for appeal. Martin has been informed of his right
to file a pro se supplemental brief, but has not filed a brief. We affirm
the conviction and sentence.
In Martin’s first robbery (Count One), he handed the teller an enve-
lope and a note that said, "I have a gun. Put all your money in the
envelope." During the second robbery (Count Two), Martin handed
the teller an envelope and a note that said, "This is a robbery. I have
a gun." When the teller hesitated, Martin pointed to the inside of his
coat and stated, "I have a gun." Martin was apprehended shortly after
the second robbery. No gun was found, and Martin told police he had
not carried a gun.
At sentencing, over Martin’s objection, the district court deter-
mined that a two-level enhancement for a threat of death was war-
ranted for the first robbery under USSG § 2B3.1(b)(2)(F) (2001), and
that a three-level enhancement for possession of a dangerous weapon
was appropriate for the second robbery under USSG
§ 2B3.1(b)(2)(E). Martin’s offense level for Count One was 24. His
offense level for Count Two was 25. With a two-level multiple-count
adjustment under USSG § 3D1.4 and a three-level reduction for
acceptance of responsibility, USSG § 3E1.1, Martin’s final offense
level was 24. He was in criminal history category I, giving him a
guideline range of 51-63 months. The district court imposed a sen-
tence of sixty months and a supervised release term of three years.
Both issues involve the district court’s legal interpretation of a
guideline term, which we review de novo. United States v. Franks,
183 F.3d 335, 337 (4th Cir. 1999). A threat of death,* as defined in
*The guideline was amended in 1997 to remove the requirement that
the threat of death be express. USSG App. C, amend. 552.
UNITED STATES v. MARTIN 3
Application Note 6 to § 2B3.1, "may be in the form of an oral or writ-
ten statement, act, gesture, or combination thereof." Application Note
6 further states 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." This court has held that conduct and
statements that indicate that a bank robber "is both armed and pre-
pared to use his gun" constitute a threat of death. Franks, 183 F.3d
at 338. While Martin’s note stated only that he had a gun, three cir-
cuits have held that the words "I have a gun," uttered during a bank
robbery, constitute a threat of death because a reasonable teller would
fear being shot when a bank robber confronting her says that he has
a gun. See United States v. Jennette, 295 F.3d 290, 292-93 (2d Cir.
2002); United States v. Day, 272 F.3d 216, 217-18 (3d Cir. 2001);
United States v. Gibson, 155 F.3d 844, 845 (7th Cir. 1998) (statement
"I have a gun" qualifies for threat of death enhancement unless
unusual mitigating circumstances deprive words of their "ordinary
and expected meaning," citing United States v. Carbaugh, 141 F.3d
791, 794 (7th Cir. 1998)). We find these authorities persuasive.
Therefore, we conclude that the district court did not err in making
a two-level enhancement for a threat of death in connection with the
robbery charged in Count One.
Guideline section 2B3.2 (b)(2)(E) provides for a three-level
enhancement "if a dangerous weapon was brandished or possessed."
Application Note 2 states that:
Consistent with Application Note 1(d)(ii) of § 1B1.1 (Appli-
cation Instructions), an object shall be considered to be a
dangerous weapon for purposes of subsection (b)(2)(E) if
(A) the object closely resembles an instrument capable of
inflicting death or serious bodily injury; or (B) the defendant
used the object in a manner that created the impression that
the object was an instrument capable of inflicting death or
serious bodily injury (e.g., a defendant wrapped a hand in a
towel during a bank robbery to create the impression of a
gun).
During his second robbery, Martin gave the teller a note reading "I
have a gun. Put the money in the envelope." When the teller did not
4 UNITED STATES v. MARTIN
act immediately, Martin pointed to his jacket and told her, "I have a
gun." In making the enhancement, the district court relied on United
States v. Souther, 221 F.3d 626 (4th Cir. 2000), cert. denied, 531 U.S.
1099 (2001), in which the defendant gave the teller a note stating that
he had a gun and he placed his hands in his coat pockets during most
of the robbery. Although Souther did not possess an object or make
his concealed hand appear to be a gun, "the note made Souther’s con-
cealed hand appear to be a dangerous weapon to whomever was
presented the note." Id. at 630.
Although Martin did not possess any object that could be perceived
as a weapon and did not conceal his hands, he used a hand gesture
to simulate possession of a gun. In United States v. Bates, 213 F.3d
1336, 1338-39 (11th Cir.), cert. denied, 531 U.S. 1056 (2000), the
Eleventh Circuit held that a hand gesture that simulates possession of
what appears to be a dangerous weapon is sufficient to trigger the
enhancement. Id. at 1339. We find the reasoning in Bates persuasive.
Therefore, the district court did not err in making the three-level
enhancement under § 2B3.1(b)(2)(E).
Pursuant to Anders, this court has reviewed the record for revers-
ible error and found none. We therefore affirm the conviction and
sentence. This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States for fur-
ther review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on the client. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED