98 F. 3d 1347 - United States v. Jesser
98 F3d 1347 United States v. Jesser
98 F.3d 1347
UNITED STATES of America, Plaintiff-Appellee,
v.
Peter Allen JESSER, Defendant-Appellant.
No. 96-30038.
United States Court of Appeals, Ninth Circuit.
Submitted Oct. 7, 1996.*
Decided Oct. 11, 1996.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Before: BEEZER, KOZINSKI and KLEINFELD, Circuit Judges.
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MEMORANDUM**
Peter Allen Jesser appeals his sentence imposed following his guilty plea to unarmed bank robbery in violation of 18 U.S.C. § 2113(a). Jesser contends that in adjusting his offense level upward under U.S.S.G. § 2B3.1(b)(2)(F), the district court erred by concluding Jesser made an express threat of death to a teller while robbing the bank. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Jesser contends that his note to the bank teller which read: "I have a gun. Don't be stupid," is not sufficient to constitute an express threat of death under the Guidelines because Jesser's note did not include words which signify an immediate threat to shoot or kill the teller, nor did he use any threatening gestures. We conclude the district court properly applied United States v. France, 57 F.3d 865, 867 (9th Cir.1995) in determining that the victim teller reasonably would fear Jesser's gun and consider his note a death threat. Accordingly, the district court is
AFFIRMED.