A man convicted of robbing one bank and attempting to rob another, using polite notes and no mention of a weapon, shouldn’t have received a sentence enhancement for making threats of death, the Eleventh Circuit ruled Nov. 26.
All robberies under the federal bank-robbery statute necessarily involve some threat of harm, the appeals court said. And treating all threats as threats of death would defeat the distinction created by the sentencing-enhancement provision, the court said.
The appeals court sent the case back to the district court for resentencing.
Roberto Arturo Perez went to two banks within a week, according to the pre-sentence investigation report. At the first, wearing a t-shirt and pants, he gave the teller a note with instructions to put $5,000 in an envelope, according to the report. “Do this and no one will get hurt,” the note said. It said he had “kids to feed” and ended, “Thanks.”
The teller gave him $1,000. The pair then engaged in a dialogue that brought the total up to $5,000 by $1,000 increments, according to the report.
At the second bank, Perez, in a shirt and shorts, offered a similar note instructing the teller to give him $20,000, the report said. The teller went to a back room to tell a supervisor and call 911. The teller then returned to the counter and stalled Perez until the police arrived.
Perez received a two-level threat-of-death sentencing enhancement after pleading guilty without a plea agreement.
On appeal, the government agreed with Perez that he shouldn’t receive the enhancement. An attorney was appointed to argue in favor of the lower court’s judgment.
The facts of Perez’s case are different from those in which courts have applied the enhancement, the U.S Court of Appeals for the Eleventh Circuit said in a per curiam opinion.
He threatened harm, but he didn’t wear clothes that suggested he might have a gun or make threatening gestures, the court said. His reference to his children “suggested that he was not devoid of empathy,” it said. And the tellers’ reactions showed they weren’t acting in fear of death, it said.
The Department of Justice represented the government.
The federal public defender’s office and Prof. Ricardo Bascuas of the University of Miami School of Law represented Perez.
Podhurst Orseck PA argued in favor of the lower court’s sentencing decision.
The case is United States v. Perez, 11th Cir., No. 17-14136, 11/26/19.