Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2007

USA v. Walker
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3456




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Recommended Citation
"USA v. Walker" (2007). 2007 Decisions. Paper 245.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/245


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                                             NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


              Nos. 06-3456 and 06-3503
                   ____________

           UNITED STATES OF AMERICA

                        vs.

               WILLIAM WALKER,
                             Appellant in 06-3456

           UNITED STATES OF AMERICA

                        vs.

                DAVID SCHENCK,
                              Appellant in 06-3503

                   ____________

APPEAL FROM THE UNITED STATES DISTRICT COURT
 FOR THE WESTERN DISTRICT OF PENNSYLVANIA
               (D.C. Crim No. 05-cr-00310)
      District Judge: Honorable Gustave Diamond
                      ____________

       Submitted Under Third Circuit L.A.R. 34.1(a)
                   November 1, 2007
Before: RENDELL, WEIS and NYGAARD, Circuit Judges.

                 (Filed: November 8, 2007)

                   ____________

                     OPINION

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WEIS, Circuit Judge.

               Defendants Walker and Schenck were convicted of bank robbery in

violation of 18 U.S.C. § 2113(a). Their appeals have been consolidated. Schenck was

sentenced to 70 months incarceration and Walker to 57 months.

               On September 2, 2005, Schenck entered a bank and handed the teller a

plastic bag along with a note stating, “Put all money in the bag nobody will get hurt or

you die.” After the teller handed him some money, Schenck left the bank and handed the

money to Walker, who had been waiting outside. The two then split up in an effort to foil

any pursuit.

               In calculating the applicable Guidelines range for both defendants, the

District Court added a two point enhancement under U.S.S.G. § 2B3.1(b)(2)(F) for a

threat of death. Defendants appeal only the threat of death enhancement. They argue that

a reasonable person would not be put in fear of death by the demand note because

Schenck was “visibly intoxicated and noticeably homeless” and that their argument is

supported by the teller’s testimony that she did not really believe that Schenck’s demand

was real. We conclude that the District Court did not err in its ruling.

               We have held that the test for application of the threat of death

enhancement is the effect on a reasonable person. See United States v. Thomas, 

, 255 (3d Cir. 2003). The teller’s response is irrelevant because this is an objective,



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rather than a subjective, standard. Under the facts here, the District Court did not err in

concluding that a reasonable person in the teller’s position would believe her life was

threatened. The argument that Schenck was visibly intoxicated and harmless was just that

– mere argument. No evidence to this effect was produced.

              Accordingly, the judgment of the District Court will be affirmed.




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