Wednesday, October 3, 2012
Saying, “I have a gun” during a bank robbery not always enough to require sentencing enhancement
On September 23, 2010, James Wooten robbed a bank in Gordonsville, Tennessee. In the midst of the robbery Wooten calmly walked up to the teller and told him that he was going to rob the bank. At first, the teller doubted Wooten given his tone, the teller felt like Wooten was just joking around. However, the teller decided to hand over $4,130 in cash later after Wooten said that he had a gun and again demanded money.
The teller said that the bank had told all its employees to hand over money during a robbery without asking further questions. Thus, once Wooten’s demand appeared to be real, the teller opened the register and gave Wooten the money he requested. The teller stated that Wooten had his hands on the counter and was not reaching for anything and that it did not seem as if Wooten intended to harm anyone in the bank. The teller specifically said that he never felt threatened by Wooten during the robbery, despite his statement concerning the gun.
Wooten was arrested and pled guilty in federal court to one count of bank robbery. Because he had a gun at the time of the robbery and made a threat about the gun, he was given a sentencing enhancement for making a death threat. Wooten disputes this enhancement; saying that despite his use of the phrase, “I have a gun,” his demeanor was so nonthreatening as to eliminate fear from a reasonable teller’s mind that his or her life was actually in danger.
The Sixth Circuit noted that the threat of death need not be explicit for a sentencing enhancement to occur. Although the statement, “I have a gun,” lacks a certain force more commonly found in such threats, there have been cases that have determined that the phrase can be sufficient on its own to warrant the threat-of-death enhancement. The Sixth Circuit said that it has clearly established that the statement “I have a gun” can constitute a threat. However, it has not been established as a per se rule that the statement “I have a gun” always constitutes a threat of death.
The Court said that where potentially mitigating factors are present, the court must go a step further and evaluate the overall circumstances of the robbery to determine whether a reasonable teller in that particular scenario would have perceived a threat of death. So, while the statement “I have a gun” certainly can be enough to support the threat-of-death enhancement, the statement is not necessarily enough, especially when circumstances exist that undermine the threatening nature of the statement.
The Court says that facts such as the robber’s statements, body language and overall demeanor, tone of voice, and mode of communication are all relevant to the analysis. The Court also stated that it believes that a teller’s perceptions of an incident also play a role in the objective evaluation of whether a reasonable teller in that specific teller’s shoes would have experienced a fear of death.
Applying the rules to this case, the Court found that, despite Wooten’s use of the phrase, “I have a gun,” the circumstances of the robbery did not warrant application of the threat-of-death enhancement. The teller’s description of Wooten’s nonaggressive demeanor suggests that Wooten would not have appeared threatening to a reasonable observer. Wooten approached the tellers calmly, placed both hands in a visible position on the counter, and softly said that he was engaged in a robbery. Wooten’s demeanor was described as “nonthreatening,” and Wooten was not engaged in any conduct that would suggest intent to harm anyone. Finally, the Court pointed out that the teller himself explained that he handed over the money because he had been trained to do so, not because of any perceived danger.
In this case, the Court agreed with Wooten’s argument and decided to reverse the district court’s sentencing enhancement, vacate his sentence and remand the case for resentencing.
To read the full opinion, click: U.S. v. James Wooten
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