Roberto Arturo Perez robs two banks. He was not carrying a weapon and gave the teller a note that read, “Put $5000 in an envelope. Put the note inside as well. Stay calm. Do this and no one will get hurt. Press the alarm after I walk out. I have kids to feed. Thanks.”
He pleads guilty to two counts of violating 18 U.S.C. Sec. 2113(a). The PSI recommends a two-level enhancement for making threats of death, under USSG Sec. 2B3.1(b)(2)(F). District Court sentences Perez to the low end of the guideline (including the enhancement) to 46 months imprisonment.
All bank robberies involve threats of harm of some type in order to qualify as robberies under § 2113(a), a rule subjecting generic threats of harm, without more, to the threat-of-death enhancement would effectively render the threat-of-death enhancement applicable to every bank robbery under § 2113(a).
Treating all threats in the course of a robbery as threats of death would defeat the distinction the [threat-of-death] enhancement seeks to capture.
The court held that his actions would not have caused a reasonable person to fear for their life, and he should not have received the enhancement.
Interestingly, the government was agreeing with the defendant on appeal. It is rare to see opposing sides agree on appeal. The 11th Circuit appointed a lawyer as amicus to defend the district court’s ruling.
Anton Vialtsin, Esq.
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