United States of America, Plaintiff-appellee, v. Peter Allen Jesser, Defendant-appellant, 98 F.3d 1347 (9th Cir. 1996)

MEMORANDUM^** 

Peter Allen Jesser appeals his sentence imposed following his guilty plea to unarmed bank robbery in violation of 18 U.S.C. § 2113(a). Jesser contends that in adjusting his offense level upward under U.S.S.G. § 2B3.1(b) (2) (F), the district court erred by concluding Jesser made an express threat of death to a teller while robbing the bank. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Jesser contends that his note to the bank teller which read: "I have a gun. Don't be stupid," is not sufficient to constitute an express threat of death under the Guidelines because Jesser's note did not include words which signify an immediate threat to shoot or kill the teller, nor did he use any threatening gestures. We conclude the district court properly applied United States v. France, 57 F.3d 865, 867 (9th Cir. 1995) in determining that the victim teller reasonably would fear Jesser's gun and consider his note a death threat. Accordingly, the district court is

AFFIRMED.