Houser

MEMORANDUM *

Arthur James Houser appeals his 27 month sentence following a guilty plea to bank robbery, in violation of 18 U.S.C. § 2113 (a). Specifically, Houser argues that the district court should not have enhanced his sentence for making a “threat of death” under U.S. Sentencing Guideline (“U.S.S.G.”) § 2B3.1(b)(2)(f) because he was unarmed, despite the fact that Houser wrote a note promising not to use a gun if the bank teller cooperated. Houser also claims the district court erred in concluding that it lacked the authority to make a diminished capacity downward *615 departure on the basis that U.S.S.G. § 5K2.13 makes such a departure unavailable when there is a “serious threat of violence.”

The threat of gun use during a robbery or similar offense counts as a threat of death. See, e.g., U.S. v. Eaton, 934 F.2d 1077, 1079 (9th Cir.l991)(threat to shoot a gun during a bank robbery amounts to a “threat of death” as defined in U.S.S.G. § 2B3.1(b)(2)). A threat to use deadly force can trigger an increase in the offense level even where the defendant does not explicitly state that the use of such force will occur unless the target complies with the defendant’s demands. U.S. v.…