Amendment: Section 2B3.1(b)(2)(F) is amended by deleting "an express" and inserting in lieu thereof "a".
The Commentary to §2B3.1 captioned "Application Notes" is amended in Note 6 by deleting "An ‘express" and inserting in lieu thereof "‘A"; by inserting after the first sentence the following additional sentence:
"Accordingly, the defendant does not have to state expressly his intent to kill the victim in order for the enhancement to apply.";
by deleting "an express" after "constitute" and inserting in lieu thereof "a"; by deleting "the underlying" and inserting in lieu thereof "this"; and by deleting "significantly greater fear than that necessary to constitute an element of the offense of robbery" and inserting in lieu thereof "a fear of death".
Reason for Amendment: This amendment addresses a circuit court conflict regarding the application of the "express threat of death" enhancement in §2B3.1 (Robbery). The amendment adopts the majority appellate view which holds that the enhancement applies when the combination of the defendant’s actions and words would instill in a reasonable person in the position of the immediate victim (e.g.,a bank teller) a greater amount of fear than necessary to commit the robbery. See, e.g., United States v. Robinson, 86 F.3d 1197, 1202 (D.C. Cir. 1996) (enhancement applies if (1) a reasonable person in the position of the immediate victim would very likely believe the defendant made a threat and the threat was to kill, and (2) the victim likely thought his life was in peril); United States v. Murray, 65 F.3d 1161, 1167 (4th Cir. 1995) ("any combination of statements, gestures, or actions that would put an ordinary victim in reasonable fear for his or her life is an express threat of death").
Effective Date: The effective date of this amendment is November 1, 1997.