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.
