United States v. David Frank Jennings, A/K/A Mike Frank Stout

This appeal presents the question left open by this court in United States v. France, 57 F.3d 865 (9th Cir.1995): Whether a defendant who, in the course of a bank robbery, states that he has a gun but makes no reference to his willingness to use it is subject to a two-level sentencing enhancement for a “threat of death” pursuant to United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 2B3.1(b)(2)(F). 1 Although we decline to impose a per se rule in answer to this question, we hold that under most circumstances, a bank robber’s statement that he has a gun is sufficient to instill a fear of death in a reasonable victim and therefore warrants the threat-of-death enhancement.

I.

On the afternoon of August 14, 2003, the defendant, David Frank Jennings, entered a Bank of America branch in Las Vegas, Nevada, approached a teller and demanded money, stating: “Put all your money on top of the counter. I have a gun. Just do it now.” The teller summoned the bank manager, who approached the teller window. Jennings then told the manager: “Sir, tell her to put the money on the counter, hurry up.” Jennings fled on foot with just over one thousand dollars in cash. He was apprehended…

concurring:

The record demonstrates that the district court in the sentencing colloquy acknowledged the language in, and based its sentencing decision on, paragraph 7 of the Presentencing Investigation Report which contained all of Jennings statements, “I have a gun,” the “Just do it now” and “Hurry up” utterances. The court today commences Part I by setting out the full colloquy. It is clear that the district court acknowledged the complete statement, which had been the subject of statements by both the prosecutor and defense attorney, but made the general ruling. “[B]ut I just don’t think that the statement was made in the context in which it was made warrants the two level enhancement under Guideline § 2(b)(3)(1).” It is evident the district court erred. The court’s opinion today clarifies the rules applicable to the “I have a gun” utterance.

439 F.3d 604 UNITED STATES of America, Plaintiff-Appellant, v. David Frank JENNINGS, a/k/a Mike Frank Stout, Defendant-Appellee. No. 04-10343. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 13, 2005. Filed March 2, 2006. Daniel G. Bogden, United States Attorney, Camille W. Damm, Assistant United States Attorney, and J. Gregory Damm, Assistant United States Attorney, Las Vegas, NV, for the plaintiff-appellant. Franny A. Forsman, Federal Public Defender, and Jason Carr, Assistant Federal Public Defender, Las Vegas, Nevada, for the defendant-appellee. Appeal from the United States District Court for the District of Nevada Philip M. Pro, District Judge, Presiding. D.C. No. CR-03-00376-PMP. Before BETTY B. FLETCHER, JOHN R. GIBSON, * and MARSHA S. BERZON, Circuit Judges. BERZON, Circuit Judge. 1 This appeal presents the question left open by this court in United States v. France, 57 F.3d 865 (9th Cir.1995): Whether a defendant who, in the course of a bank robbery, states that he has a gun but makes no reference to his willingness to use it is subject to a two-level sentencing enhancement for a "threat of death" pursuant to United States Sentencing…