Holmes

MEMORANDUM **

Michael Holmes pleaded guilty to three counts of unarmed bank robbery. He contends on appeal that the district court erred by adjusting his offense level based on a finding that he made threats of death during commission of the crimes. We reject that contention and we affirm.

DISCUSSION

The Sentencing Guidelines provide for a two-level adjustment to a defendant’s base offense for robbery “if a threat of death was made.” U.S.S.G. § 2B3.1(b)(2)(F). The commentary explains that the threat “may be in the form of an oral or written statement, act, gesture, or combination thereof.” U.S.S.G. § 2B3.1, comment. (n.6). The threat does not, however, need to be express. See id. All that is required is that the defendant “engaged in conduct that would instill in a reasonable person, who is the victim of the offense, a fear of death.” Id.

Holmes argues that his demand notes indicating that he had a gun are insufficient to constitute threats of death. He correctly observes that in United States v. France, 57 F.3d 865, 867 (9th Cir.1995), we did not decide “whether § 2B3.1(b)(2)(F) would apply to a defendant who announced during the robbery that he had a gun.” We again conclude…