Aragon

ORDER DENYING DEFENDANT’S OBJECTION TO THE PRE-SENTENCE REPORT

INTRODUCTION

Defendant Rene Aragon pleaded guilty to violations of 18 U.S.C. § 2113 (a), robbery of banks insured by the Federal Deposit Insurance Corporation. In the plea agreement, Defendant’s base offense level under the Sentencing Guidelines was calculated to be twenty-two. However, the presentence report suggested an offense level of twenty-four, applying a two level enhancement pursuant to the United States Sentencing Commission, Guidelines Manual § 2B3.1(b)(2)(F) (Nov. 1995), which allows such an enhancement whenever there has been an “express threat of death” during the commission of the robbery. Defendant filed an objection to this finding which is the subject of this order.

FACTS AND ISSUE

The limited facts which are relevant to the issue under review are essentially undisputed. Defendant’s modus operandi was to walk into a bank and present a note to the teller which would state in part, “I have a *427 gun and I’m not afraid to use it.” There were no accompanying gestures or comments and the Defendant neither displayed nor did he carry a gun during the commission of the robberies. The narrow issue to be…