The opinion of the court was delivered by: WARE
ORDER DENYING DEFENDANT'S OBJECTION TO THE PRESENTENCE REPORT
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.
1. "Express Threat Of Death"
The Sentencing Guidelines state that "if an express threat of death was made, increase by 2 levels." The scope of this section is outlined in the commentary.
An "express threat of death," as used in subsection (b)(2)(F) may be in the form of an oral or written statement, act, gesture, or combination thereof. For example, an oral or written demand using words such as "Give me the money or I will kill you", "Give me the money or I will pull the pin on the grenade I have in my pocket", "Give me the money or I will shoot you", "Give me the money or else (where the defendant draws his hand across his throat in a slashing motion)", or "Give me the money or you are dead" would constitute an express threat of death. The court should consider that the intent of the underlying provision is to provide an increased offense level for cases in which the offender(s) engaged in conduct that would instill in a reasonable person, who is a victim of the offense, significantly greater fear than that necessary to constitute an element of the offense of robbery.
USSG § 2B3.1, comment. (n.6) (hereinafter referred to as the "commentary").
In deciding whether an express threat of death has been made, it is not relevant that the defendant was unarmed. U.S.A. v. Cadotte, 57 F.3d 661, 662 (8th Cir. 1995). Nor is it relevant that the victim felt unthreatened. Id. Rather, the guideline commentary calls for an objective test. "The determination is whether a reasonable person, given the conduct of the defendant and the context in which it occurred, would experience significantly greater fear than the level of intimidation necessary to constitute an element of the offense of robbery." U.S. v. France, 57 F.3d 865, 866-7 (9th Cir. 1995).
2. The Commentary To USSG § 2B3.1(b)(2)(F)
Much of the case law construing § 2B3.1(b)(2)(F) relies heavily upon the commentary. Defendant argues that this reliance is improper because the commentary expands the guideline too far. In support of this, Defendant cites U.S. v. Alexander, 88 F.3d 427 (6th Cir. 1996), where a defendant effectuated several bank robberies by presenting demand notes. The most threatening note informed the teller that the defendant had both a bomb and a gun. In finding that this action did not amount to an express threat of death, the Alexander court rejected portions of the guideline commentary as being inconsistent with the plain meaning of the guideline itself.
To satisfy the qualifier "express," a defendant's statement must distinctly and directly indicate that the defendant intends to kill or otherwise cause the death of the victim. Because four of the five examples in Application Note 6 [the commentary to USSG § 2B3.1(b)(2)(F)] do not, they are not controlling. Similarly, reliance on the commentary's statement regarding the underlying intent of the ...