United States of America, Plaintiff-appellee, v. Michael Leon Pierce, Defendant-appellant, 990 F.2d 1264 (9th Cir. 1993)

MEMORANDUM^** 

Michael Leon Pierce appeals his sentence under the Sentencing Guidelines following his guilty plea to bank robbery in violation of 18 U.S.C. § 2113(a). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Pierce argues that the district court erred by increasing the offense level by two, pursuant to U.S.S.G. § 2B3.1(b) (2) (F), for making an "express threat of death." At the sentencing hearing, the victim, teller Paula Grimes, testified that Pierce handed her a note demanding money, and then told her "Do what it says or I'll kill you." Grimes had earlier told the FBI that Pierce stated "Give me all your money, or I'll kill you." Pierce argues unconvincingly that the two "versions" of the statements are fatally inconsistent.

Pierce concedes, as he must, that such a statement, if made, constitutes an "express threat of death" under U.S.S.G. § 2B3.1(b) (2) (F). United States v. Bachiero, 969 F.2d 733, 734 (9th Cir. 1992) (upholding 2 level adjustment where note stated "Your money or life, quick"); United States v. Eaton, 934 F.2d 1077, 1079 (9th Cir. 1991) ("Give me all your money or I'll shoot"). Pierce testified that he made no such statement.

The district court believed the teller, and found that Pierce did state "Do what it says or I will kill you." We review for clear error, United States v. Chapnick, 963 F.2d 224, 226 (9th Cir. 1992), recognizing that the district court's credibility determination is entitled to special deference. United States v. Ramos, 923 F.2d 1346, 1356 (9th Cir. 1991). The finding that Pierce made an "express threat of death" is not clearly erroneous.

AFFIRMED.