In United States v. Perez, No. 17-14136 (Nov. 26, 2018) (Rosenbaum, Tjoflat, Pauley) (per curiam), the Court held that the district court clearly erred by applying the threat-of-death enhancement in the bank robbery Guideline, 2B3.1(b)(2)(F).
Accepting the government's concession, the Court concluded that, on the facts of this case, the defendant's conduct during two bank robberies would not have put a reasonable person in fear of death (as opposed to mere harm or danger). While the defendant's notes to the tellers threatened harm in general, there was nothing to communicate a threat of death. He did not state or imply that he had a weapon. He did not wear clothing that could have concealed a weapon. He did not wear a disguise. He did not make any threatening gestures or act menacingly. His note stated that he had kids to feed. He did not aggressively demand money. And, during one robbery, the teller rebuffed his demands; and, during the other, the teller left the counter and returned several minutes later. Applying the enhancement under these facts would have impermissibly led to applying the enhancement in all bank robberies.