Hicks

MEMORANDUM **

Douglas Ray Hicks appeals the 92-month sentence imposed after his guilty-plea conviction for bank robbery, in violation of 18 U.S.C. § 2113 (a). Hicks argues that the district court erred by applying a two-level enhancement under United States Sentencing Guidelines (“U.S.S.G.”) § 2B3.1(b)(2)(F) for making a “threat of death” during the robbery. We have jurisdiction pursuant to 18 U.S.C. § 3742 , and we affirm.

Hicks handed the teller a note which read: “This is a robbery. I am armed.” He contends that the note was insufficient in the circumstances of this case to “instill in a reasonable person, who is a victim of the offense, a fear of death.” U.S.S.G. § 2B3.1(b)(2)(F), cmt. 6. We disagree. Given the context, a bank teller could have reasonably interpreted the note as a threat to her life if she did not comply with his demands. Id. Thus, in the circumstances of this case the district court did not err by applying the two-level enhancement under U.S.S.G. § 2B3.1(b)(2)(F).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

dissenting.

There are of course no “circumstances of this case” that justify the majority’s finding. That is why the government did not support the enhancement. In fact, the circumstances demonstrate that a reasonable person would not have been in fear for his life. As the majority appears to recognize, there is no per se rule mandating an enhancement whenever a note is presented stating that the robber is armed. The district judge appears to believe otherwise, or so the transcript shows. That belief is erroneous. I would vacate the sentence and remand for resentencing without the enhancement.