US v. Gordon Goodwin, No. 12-4958 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4958 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GORDON MILLER GOODWIN, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:12-cr-00213-CCE-1) Submitted: October 22, 2013 Decided: November 1, 2013 Before NIEMEYER, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. George E. Crump, III, Rockingham, North Carolina, for Appellant. Ripley Rand, United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gordon sentence Miller imposed Goodwin after he pled appeals guilty, the forty-seven pursuant to month a plea agreement, to one count of bank robbery, in violation of 18 U.S.C. § 2113(a) (2006). district pursuant court to erred U.S. in On appeal, Goodwin argues that the imposing Sentencing a two-level Guidelines enhancement Manual (USSG) § 2B3.1(b)(2)(F) (2011), because a threat of death was made. We affirm. In effecting the robbery, Goodwin produced a note that stated, among other things, that he possessed a gun. As the teller was reading the note and collecting the money, Goodwin made movements with his hands near his waist. The district court found that the statement that Goodwin had a gun was a threat hands. of death Goodwin that was argues bolstered that the by the movements district court of erred his in concluding that the statement I have a gun was a threat to use the gun and in its finding that Goodwin s motions at his waist supported the threat. We review a sentence for procedural and substantive reasonableness under an abuse of discretion standard. United States, 552 U.S. 38, 51 (2007). Miscalculation of the Guidelines range is a significant procedural error. This court reviews de novo 2 the Gall v. district Id. at 51. court s legal interpretation of guidelines terminology and its application of the guidelines to a known set of facts. Franks, 183 F.3d 335, 337 (4th Cir. 1999). United States v. The district court s factual findings are reviewed for clear error. United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010). In Franks, the court affirmed an enhancement for a threat of death based on a bank robber s note that stated, You don t have to give me all your cash. gun. I have nothing to lose. No dye packs. I have a Franks, 183 F.3d at 337. The court noted that a threat to shoot a teller is a threat of death, and concluded that the note in question can only be meant to indicate that Franks is both armed and prepared to use his gun. court Id. at 338. also noted § 2B3.1(b)(2)(F) in In rejecting Franks arguments, the that the 1997 by Sentencing deleting the Commission requirement amended of an express threat of death, and explained that the enhancement applied to actions by the defendant that would instill in a reasonable person in the position of the immediate victim (e.g., a bank teller) a greater amount of fear than necessary to commit the robbery. Id. at 338-39. Goodwin acknowledges the holding in Franks, as well as the court s earlier decision in United States v. Murray, 65 F.3d 1161 (4th Cir. 1995), which also affirmed a threat of death enhancement. Goodwin argues, however, 3 that his note merely stated that he possessed the gun, while the examples in the Guidelines commentary and the note and statements in Franks and Murray include critical additional language that evinced a willingness to use the gun if the robber s demands were not satisfied. Goodwin s arguments are unavailing. Courts reviewing a threat of death enhancement have uniformly concluded that a robber s statement that he has a gun can justify the enhancement. United States v. Jennings, 439 F.3d 604, 610-11 (9th Cir. 2006) (collecting cases). err in finding that Goodwin s note The district court did not met the requirements for imposition of the enhancement. Goodwin also argues that the district court erred in interpreting his hand gestures as supporting the enhancement because they essentially bolstered his statement that he had a gun. He asserts that the surveillance video shows that the teller was not subjectively in fear of death because she asked a customer to stop Goodwin because he had left his identification at the teller window. Goodwin does not dispute that he made several movements with his hands in the area of his waist, but merely disagrees with the district court s interpretation of those movements as corroborating the statement in the note that he had a gun. However, Goodwin s mere disagreement does not establish that the district court clearly erred in its factual finding. Finally, Goodwin cites a Sixth Circuit decision and 4 argues that the video presents mitigating circumstances such that the statement I have a gun in the note did not constitute a threat of death. Cir. 2012). United States v. Wooten, 689 F.3d 570 (6th Our review leads us to conclude that Wooten is distinguishable, and that the totality of the circumstances of the robbery did not dilute the threat stated by Goodwin s note. Accordingly, dispense with contentions are oral we affirm argument adequately Goodwin s because presented in the the sentence. facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 5
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