USA v. Linda Horton, No. 16-10031 (5th Cir. 2016)

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Case: 16-10031 Document: 00513798452 Page: 1 Date Filed: 12/15/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-10031 Summary Calendar United States Court of Appeals Fifth Circuit FILED December 15, 2016 UNITED STATES OF AMERICA, Plaintiff - Appellee Lyle W. Cayce Clerk v. LINDA GAIL HORTON, Defendant - Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:14-CR-220-1 Before BARKSDALE, GRAVES, and COSTA, Circuit Judges PER CURIAM: * Linda Gail Horton pleaded guilty without a plea agreement to one count of bank robbery, in violation of 18 U.S.C. § 2113(a). Horton challenges a twopoint enhancement to her base-offense level under Guideline § 2B3.1(b)(2)(F) for making a threat of death during the commission of the robbery. Along that line, Horton asserts the enhancement applies only if “(1) a reasonable person in the position of the immediate victim would very likely believe the defendant Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. * Case: 16-10031 Document: 00513798452 Page: 2 Date Filed: 12/15/2016 No. 16-10031 made a threat and the threat was to kill, and (2) the victim likely thought his life was in peril”. U.S.S.G app. C, amend. 552. Because the presentence investigation report did not mention whether the victim experienced a fear of death, Horton claims the court erred in imposing the enhancement. Although post-Booker, the Sentencing Guidelines are advisory only, the district court must avoid significant procedural error, such as improperly calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51 (2007). If no such procedural error exists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuse-of-discretion standard. Id. at 51; United States v. DelgadoMartinez, 564 F.3d 750, 751–53 (2009). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Horton did not object in district court to the application of the threat-ofdeath enhancement. The absence of a “threat of death” was urged only in seeking a downward departure. Therefore, review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Horton must show a forfeited plain (clear or obvious) error that affected her substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If she does so, we have the discretion to correct the reversible plain error, but should do so only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id. The commentary for Guideline § 2B3.1(b)(2)(F) explains a threat of death “may be in the form of an oral or written statement, act, gesture, or combination thereof”. U.S.S.G. § 2B3.1, cmt. n.6. The defendant need not expressly threaten to kill the victim. 2 Id. Instead, under the applicable Case: 16-10031 Document: 00513798452 Page: 3 Date Filed: 12/15/2016 No. 16-10031 objective standard, the enhancement applies when a reasonable person would reasonably fear his life was in danger. United States v. Soto-Martinez, 317 F.3d 477, 479 (5th Cir. 2003). Horton’s note to the bank teller demanded money and stated Horton had a bomb. It is not clear or obvious error to decide such a statement would instill a fear of death in a reasonable person, especially in a tense and stressful situation like a bank robbery. See id. Therefore, Horton fails to show the court plainly erred in applying the “threat of death” enhancement. See Puckett, 556 U.S. at 135; Soto-Martinez, 317 F.3d at 479. AFFIRMED. 3