by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit ruled that the general threat of harm required in every bank robbery under 18 U.S.C. § 2113(a) does not justify the two-level “threat-of-death” enhancement of U.S.S.G. § 2B3.1(b)(2)(F).

In March 2017, an unarmed Roberto Arturo Perez entered a Chase Bank and handed a note to a teller that read: “Put $5000 in an envelope. Put the note inside as well. Stay calm. Do this and no one will get hurt. Press the alarm after I walk out. I have kids to feed. Thanks.”

The teller explained to Perez that the teller would need to type a code into the computer to dispense any cash. After the code was entered, the teller placed $1,000 on top of the counter.

Perez counted it and then asked if that was the most cash the teller could dispense. In response, the teller placed another $1,000 on the counter. This process occurred three more times, and then Perez took the money and fled.

Less than a week later, an unarmed Perez entered a Wells Fargo Bank and handed a note to a teller that read: “[A]ct normal and stay calm[.] [T]ake [$]20,000 and put it in an envelope and nobody gets hurt[.] [P]lease sound the alarm in 10 minutes[.] I got kids to feed[.] [T]hanks.”

In response, the teller signaled the bank’s alarm system, left the counter, and entered a back room to inform others of the robbery. They called law enforcement. Several minutes later, the teller returned to the counter and stalled a “visibly agitated and aggressive” Perez until law enforcement arrived and took him into custody.

Perez pleaded guilty to charges of attempted bank robbery and bank robbery. His Pre-Sentence Investigation (“PSI”) report recommended an offense level of 23, including a two-level enhancement under U.S.S.G. § 2B3.1(b)(2)(F) for making threats of death. Perez objected to the two-level enhancement.

The district court determined that Perez had had “sort of a conversation ... or back-and-forth” with the first teller. As for the second note, it had “a sense of overall threatening and, yet, it ha[d] a blandness to it ... a plea for his kids[.]” Finding there was an “element of fear” that would “put somebody in concern about harm” — regardless of the absence of weapons or threatening non-verbal cues — the district court concluded a reasonable person “could have been in sufficient fear to warrant” application of the two-level enhancement.

Perez appealed, arguing that the district court erred in applying the enhancement. The Government agreed with Perez.

The Eleventh Circuit observed that the Court nevertheless had an independent duty to decide the matter according to law regardless of whether the parties agreed. United States v. Linville, 228 F.3d 1330 (11th Cir. 2000). A defendant is guilty of bank robbery, or attempted bank robbery, if he takes or attempts to take money from a bank “by force and violence, or by intimidation.” 18 U.S.C. § 2113(a).

However, depending on how the robbery was carried out, it may qualify for harsher sentences under the sentencing enhancements of U.S.S.G. § 2B3.1(b). One qualifier is when a defendant makes a “threat of death” during the robbery. § 2B3.1(b)(2)(F). It applies when a fear of death is instilled in a reasonable person who is a victim of the robbery by the defendant’s oral or written statements, acts, gestures, or combinations thereof. Id. at comment 6.

The defendant need not make a specific threat of death, but any gesture or statement indicating noncompliance may result in death is sufficient. For example, in United States v. Murphy, 306 F.3d 1087 (11th Cir. 2002), the court held that a note stating, “You have ten seconds to hand me all of the money in your top drawer. I have gun” qualified for the enhancement because a reasonable person would conclude he would be shot if he did not comply, and people who are shot often die.

And in United States v. Raszkiewicz, 169 F.3d 459 (7th Cir. 1999), the court held the enhancement was properly applied where the defendant told one teller, “this is it for you, you’re being robbed,” while forcing another teller to lie on the floor and pointing an object that made the teller believe the defendant had a gun even though the defendant was unarmed.

But in the instant case, the Court determined Perez’s notes — while conveying a sense of harm — lacked that “something more” to transform the general threat of harm inherent in every bank robbery to be a taking by “force or intimidation” into a threat of death. The first teller engaged in a “conversation” with Perez and refused four times to comply with Perez’s demand for $5,000. Instead, the teller provided $1,000 on multiple occasions after having been asked by Perez time-after-time it that was the most cash the teller could access. The Court concluded that that was not the behavior of someone who was in fear of death.

The second teller, after leaving the counter and entering a back room, returned to Perez and talked with him until law enforcement arrived. None of these actions indicate that either teller ever felt in fear of death if he or she did not comply.

The Court concluded that “[t]reating all threats in the course of a robbery as threats of death would defeat the distinction the threat-of-death enhancement seeks to capture,” and “Perez’s conduct and language did not rise to the level of a threat of death.”

Accordingly, the Court vacated Perez’s sentence and remanded to the district court for resentencing. See: United States v. Perez, 943 F.3d 1329 (11th Cir. 2019). 

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