In a split published decision, United States v. Wooten, Circuit Judge Moore found the statement “I have a gun” during a bank robbery did not support a two-level threat-of-death enhancement under § 2B3.1(b)(2)(F). The enhancement does not solely depend on the defendant's words. A sentencing court must also consider the context and the overall circumstances in which the statement occurred. These factors include: the statements, body language, overall demeanor, tone of voice, and mode of communication. Although the threat of death is an objective standard, a sentencing court can also consider whether the actual teller felt threatened when determining if a reasonable person would have been afraid under the same circumstances.
Mr. Wooten committed the bank robbery at issue by placing both hands on the counter and softly saying “I am going to rob you” in a nonchalant manner. When the teller hesitated due to his doubts of Mr. Wooten’s sincerity, Mr. Wooten stated “I have a gun. Give me your money,” at which point the teller handed over cash. There was no demand note, mask, disguise, or assertive commands. The teller testified he did not feel threatened during the robbery. In fact, Mr. Wooten was so non-threatening he left empty-handed earlier that day in an attempted bank robbery when the teller merely laughed at him. Mr. Wooten had no criminal history, stated he wanted to be caught, and committed the robbery because “he was just tired of living in his car and he was running out of money.” The opinion stresses this is a rare case and in the majority of cases the statement “I have a gun” is enough to warrant the enhancement.
The dissent states “I can think of just one reason why a bank robber would tell a bank teller he has a gun: to show he means business.”