United States v. Marquise Bell

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No: 17-3792
______________
UNITED STATES OF AMERICA
v.
MARQUISE BELL,
Appellant
______________
APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA
(D.C. Crim. Nos. 2-16-cr-00441-001 & 2-17-cr-00087-001)
District Judge: Honorable Eduardo C. Robreno
______________
Argued September 25, 2018
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Before: AMBRO, CHAGARES, and GREENAWAY, JR.,
Circuit Judges.
(Opinion Filed: January 7, 2020)
______________
OPINION
______________
George H. Newman [ARGUED]
George H. Newman & Associates
100 South Broad Street
Suite 2126
Philadelphia, PA 19110
Attorney for Appellant
William M. McSwain, United States Attorney
Robert A. Zauzmer, Chief of Appeals
Bernadette A. McKeon [ARGUED]
Yvonne O. Osirim
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee
GREENAWAY, JR., Circuit Judge.
Marquise Bell challenges two enhancements to his
sentence for robbing a Metro PCS store – one for the use of a
dangerous weapon and the other for physically restraining the
victim. For the reasons discussed below, we will affirm the
2
District Court’s application of the enhancement for use of a
dangerous weapon, reverse its application for physically
restraining the victim, and remand for resentencing.
I. Background
On September 15, 2015, Bell and Samuel Robinson
entered a Metro PCS store located at 4229 North Broad Street,
Philadelphia, Pennsylvania. Both men wore stockings over
their faces to obscure their identities. Bell carried a weapon
resembling a firearm. Upon entering the store, Bell physically
confronted a store employee, by grabbing the employee’s neck,
pointing the weapon at his neck, and throwing the employee to
the ground. Bell then began to remove cash from the register.
The employee attempted to stop the theft by grabbing Bell’s
arm, causing Bell to strike the employee with the weapon. The
blow caused a piece of the weapon to break off, at which time
the employee realized the firearm was fake. The firearm Bell
carried was, in reality, a plastic gun. The employee then stood
up and attempted to stop the robbery. There was a struggle
during which Bell pushed the employee away, allowing him
and Robinson to flee the store with approximately $1,000.00
in cash.
During the sentencing hearing, Bell’s counsel read a
statement from the employee describing the incident:
“I grabbed his arm. He hit me with the gun.
That’s when I knew it was fake. It was plastic.
It broke and part of it fell over here (pointing to
the floor) behind the register. That’s when I saw
the piece on the floor. I got up again, to fight him,
but he grabbed the money from the register and
ran out the door.”
3
(App. A50-51.)
During his flight, Bell dropped his hat, which was
seized by the Philadelphia Police and preserved for DNA
testing. Approximately one year later, the police obtained a
warrant for Bell’s DNA. When FBI agents, Task Force
officers, and Philadelphia Police Officers went to Bell’s
residence to execute the warrant, they found Bell hiding on the
roof outside his bedroom window. Near Bell, the officers saw
a plastic bag, from which a cardboard box marked
“Winchester” protruded. The bag contained multiple rounds
of various types, calibers, and makes of ammunition.
Bell was indicted in two separate one count indictments
– one for being a felon in possession of ammunition in
violation of 18 U.S.C. § 922(g) and the second for Hobbs Act
robbery, in violation of 18 U.S.C. § 1951(a). He pled guilty to
both indictments.
At sentencing, the District Court, over Bell’s counsel’s
objections, imposed a two-level enhancement for physical
restraint pursuant to U.S.S.G. § 2B3.1(b)(4)(B) and a four-
level enhancement for use of a dangerous weapon, pursuant to
U.S.S.G. § 2B3.1(b)(2)(D).1 After a three-level reduction for
1
Counsel also sought to have the offenses grouped in
order to eliminate an additional one level enhancement. In
addition, counsel sought a reduction for Bell’s minor role in
the offense. The District Court rejected both of these
arguments. Bell does not challenge either of those decisions
on appeal.
4
acceptance of responsibility, the District Court concluded that
Bell had an offense level of 24 and a criminal history category
of IV, resulting in a sentencing range of 77 to 96 months. After
considering the § 3553 factors, the Court imposed a sentence
of 86 months of incarceration, followed by three years of
supervised release. This timely appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. This Court has jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).
The parties disagree as to the appropriate standard of
review to use in this case. Citing no cases, Bell asserts that we
should apply de novo review to his challenges to the
application of the sentencing enhancements. Relying on
United States v. Richards, 674 F.3d 215 (3d Cir. 2012), the
government posits that we should review for clear error. This
misconstrues our holding in Richards.
As we stated in United States v. Grier, 475 F.3d 556,
570 (3d Cir. 2007) (en banc), “this Court will continue to
review factual findings relevant to the Guidelines for clear
error and to exercise plenary review over a district court’s
interpretation of the Guidelines.” We did just that in Richards;
we were not required to interpret the Guidelines because the
appellant did “not quarrel with the District Court’s articulation
of what it means to be a government official in a high-level
decision-making or sensitive position, for the District Court
used the definition of the enhancement exactly as it is recited
in the Guidelines.” Richards, 674 F.3d at 218. Instead, the
appellant “disagree[d] with the District Court’s conclusion that
the facts regarding his employment fit within the Guidelines
5
definition of a government official in a high-level decision-
making or sensitive position.” Id. We, therefore, applied clear
error review to the District Court’s factual findings.
Despite the government’s assertion that we are currently
faced with a situation similar to that in Richards, we are not.
Bell has not contested the facts of his offense. Instead, he
challenges the District Court’s interpretation and application of
two provisions of the Guidelines.2 We will review the District
2
In concluding that we should review the District
Court’s decision for clear error, our dissenting colleague
focuses on the factual nature of the application of the
Guideline, but fails to acknowledge that we have not, prior to
today’s decision, provided a comprehensive interpretation of
the physical restraint enhancement that a district court could
then apply. The fatal flaw in the dissent’s interpretation of
Buford v. United States, 532 U.S. 59 (2001), emanates from a
lack of appreciation for the distinction the Supreme Court is
drawing. Here, as recognized in Buford, we are considering “a
generally recurring, purely legal matter, such as interpreting a
set of legal words, say, those of an individual guideline, in
order to determine their basic intent.” Id. at 65. We are not
addressing an issue that “is bounded by[ ] case-specific
detailed factual circumstances [where] the fact-bound nature of
the decision limits the value of appellate court precedent,
which may provide only minimal help when other courts
consider other procedural circumstances, other state systems,
and other crimes.” Id.at 65-66. Just last year, we, as an en
banc court, applied these principles when we exercised plenary
review over the interpretation of a specific guideline. United
States v. Douglas, 885 F.3d 124, 129 (3d Cir. 2018) (en banc).
We are now interpreting the meaning of sections
6
Court’s determinations de novo. See United States v. Paul, 904
F.3d 200, 202 (2d Cir. 2018) (“[T]he issue on this appeal is not
the factual question of what happened to the store employee; it
is the legal question whether the physical restraint
enhancement applies to the undisputed facts . . . .”); United
States v. Anglin, 169 F.3d 154, 163 (2d Cir. 1999) (“[T]he
pertinent facts . . . are not disputed. . . . The question is whether
the physical restraint enhancement applies to those facts, an
issue that ‘turns primarily on the legal interpretation of a
guideline term.’” (quoting United States v. Stroud, 893 F.2d
504, 507 (2d Cir. 1990)).
V. Analysis
On appeal, Bell raises two challenges to his sentence.
The first – whether he physically restrained the victim –
requires us to review sections 2B3.1(b)(4)(B) and 1B1.1 of the
Sentencing Guidelines in order to discern what conduct the
Sentencing Commission sought to encompass in the definition
of “physically restrained.” The second – whether Bell used a
dangerous weapon – presents a less challenging analysis in
light of our clear precedent on this issue.
A. Physically restrained
Consideration of the enhancement for physical restraint
involves two sections of the Sentencing Guidelines. Section
2B3.1(b)(4)(B) provides that “if any person was physically
restrained to facilitate commission of the offense [of robbery]
or to facilitate escape,” the sentencing calculation should be
2B3.1(b)(4)(B) and 1B1.1, before applying that meaning to the
present case.
7
increased by two levels. “Physically restrained” is defined in
the application notes to § 1B1.1 as “mean[ing] the forcible
restraint of the victim such as by being tied, bound, or locked
up.” U.S. Sentencing Guidelines Manual § 1B1.1 cmt. n. 1(K)
(U.S. Sentencing Comm’n 2016) [hereinafter “U.S.S.G.”].3
Looking only at the language used in the definition, it
would appear clear that Bell did not physically restrain the
store employee because he did not tie up, bind, or lock up the
employee. However, we, along with many of our sister
circuits, have held that the three examples provided in the
definition of physically restrained are not an exhaustive list,
but rather only examples of the types of conduct that fall within
the meaning of the term. United States v. Copenhaver, 185
F.3d 178, 180 (3d Cir. 1999) (“Cases have generally held that
‘physical restraint’ is not limited to the examples listed in the
guidelines.”). See, e.g., United States v. Ossai, 485 F.3d 25, 32
(1st Cir. 2007); United States v. Drew, 200 F.3d 871, 880 (D.C.
3
At the time of Bell’s sentencing in 2017, the term
“physically restrained” was defined in Application Note 1(K)
of the U.S. Sentencing Guidelines. As a result of revisions
made to the U.S. Sentencing Guidelines in 2018, the definition
of “physically restrained” now appears in Application Note
1(L). This change does not affect our case. See Dorsey v.
United States, 567 U.S. 260, 275 (2012) (“The Sentencing
Commission has . . . instructed sentencing judges to ‘use the
Guidelines Manual in effect on the date that the defendant is
sentenced,’ regardless of when the defendant committed the
offense, unless doing so ‘would violate the ex post facto
clause.’” (quoting U.S.S.G. § 1B1.11)).
8
Cir. 2000); United States v. Anglin, 169 F.3d 154, 164 (2d Cir.
1999); United States v. Hickman, 151 F.3d 446, 461 (5th Cir.
1998); United States v. Thompson, 109 F.3d 639, 641 (9th Cir.
1997); United States v. Stokley, 881 F.2d 114, 116 (4th Cir.
1989).
Since our decision in Copenhaver, we have not had the
occasion to speak precedentially on the parameters of what it
means to be physically restrained, as defined in the Guidelines.
Copenhaver involved the defendant, during the course of a
robbery, forcing the victim from one room into another and
then “put[ting] him in the fireplace and plac[ing] the fire screen
across it.” Copenhaver, 185 F.3d at 179 (quoting the
appendix). While we discussed, in dicta, factors other circuits
had considered when imposing the enhancement for physically
restraining a victim, we were not required to adopt any specific
test to be used in interpreting this Guideline since
[w]e need not choose in this case between the
position of [United States v.] Thompson[, 109
F.3d 639 (9th Cir. 1997),] that forcing some
action at the point of a gun constitutes physical
restraint under the Guideline and that in [United
States v.] Anglin[, 169 F.3d 154 (2d Cir. 1999),]
holding to the contrary. Here, Copenhaver did
more than merely order Helwig to stand still,
kneel or lie down. He not only forced him into
another office but put him into the fireplace and
placed the fire screen across it, thereby confining
his victim in a manner comparable to the
example given in Anglin of ‘locking up’ the
victim.
9
Id. at182. We are now faced with a less clear situation that
requires us to determine what factors to consider when
determining if a defendant physically restrained a victim.
Unlike our Court, over the past twenty years, other
circuits have reviewed the meaning and application of the
physically restrained enhancement. Turning to those cases, we
discern five broad factors that the other circuits have used to
evaluate whether the enhancement should be applied and that
we, after consideration, adopt here. Those factors are
1. Use of physical force;
2. Exerting control over the victim;
3. Providing the victim with no alternative
but compliance;
4. Focusing on the victim for some period of
time; and
5. Placement in a confined space.
We emphasize that courts should balance these factors
in deciding whether to impose the enhancement; no single
factor is necessarily dispositive.
1. Use of physical force
Several circuits have commented on the relevance of the
term “physical” in the definition of physically restrained. As
the D.C. Circuit succinctly stated, “[t]he required restraint
must, as the language plainly recites, be physical.” United
States v. Drew, 200 F.3d 871, 880 (D.C. Cir. 2000). That Court
further observed that “the phrase ‘being tied, bound, or locked
10
up’ indicates that physical restraint requires the defendant
either to restrain the victim through bodily contact or to confine
the victim in some way.” Id. In reaching this conclusion, the
D.C. Circuit relied upon the Second Circuit’s reasoning in
Anglin. Id. (noting that “[t]he most pertinent definition of
‘physical’ is ‘of the body as opposed to the mind, as, physical
exercise.’” (quoting Anglin, 169 F.3d at 164)).
In Anglin, the Second Circuit relied on “the plain
meaning of words” to support its conclusion that the physical
restraint enhancement requires the use of physical force.
Anglin, 169 F.3d at 164. Observing that “‘physical’ is an
adjective which modifies (and hence limits) the noun
‘restraint,’” the Second Circuit reasoned that “if §
2B3.1(b)(4)(B) said only that the enhancement would apply ‘if
any person was restrained,’ the courts would become involved
in mental, moral, philosophical, even theological
considerations, in addition to physical ones. No, the restraint
must be ‘physical.’” Id.
The Fifth Circuit has adopted the Second Circuit’s
reasoning – it too requires the use of physical, rather than
mental or moral, force in order to apply the enhancement.
United States v. Garcia, 857 F.3d 708, 713 (5th Cir. 2017).
There, the Fifth Circuit concluded that although “we have little
doubt that at least one of the employees felt restrained when
the barrel of a gun touched the back of his neck, . . . this
employee and his coworkers were not subjected to the type of
physical restraint that victims experience when they are tied,
bound, or locked up.” Id. (emphasis omitted).
Recently, the Seventh Circuit addressed the need “for
something that tells us on which side of the line that divides
psychological coercion from physical restraint a given case
11
falls.” United States v. Herman, 930 F.3d 872, 875 (7th Cir.
2019). Specifically, that Court sought to resolve “the question
whether the physical-restraint enhancement can be applied to
situations in which an armed defendant simply orders his
victims not to move and does not otherwise immobilize them
through measures such as those outlined in the commentary to
U.S.S.G. § 1B1.1.” Id. at 874. In that context – where a
defendant points a gun at a victim – the Seventh Circuit
observed that
the victim’s reaction does not determine whether
there is or is not physical restraint. If the
defendant waves a gun around and barks out a
command to stay still and the victim obeys, it
makes no sense to say that the recipient of the
order was physically restrained. Whatever
restraint occurred came about from the way the
victim decided to respond to the order. She
might obey; she might ignore it; or she might
attempt to flee. Her physical response to the
defendant’s attempt to coerce, however, is not
something that logically belongs within the
scope of the physical-restraint guideline.
Id. at 876. Ultimately, the Court “align[ed] [itself] with the
circuits that have found that more than pointing a gun at
someone and ordering that person not to move is necessary for
the application of U.S.S.G. § 2B3.1(b)(4)(B).” Id. at 877.
We discern a common thread in these cases regarding
the meaning of “physical” in the definition of physical
restraint: the need for the restraint to be something more than
a psychological restraint. We agree that we should consider
the plain meaning of the word “physical” in the definition set
12
forth in § 1B1.1, and we therefore adopt the requirement that
the restraint involve some physical aspect.
2. Exerting control over the victim
Continuing our focus on the plain language of the
Guidelines, we turn to the second word in the phrase:
“restrained.” Anglin, once again, provides us with guidance on
this point. Citing Webster’s Deluxe Unabridged Dictionary,
the Second Circuit examined the definition of “the verb
‘restrain,’ whose first definition is ‘to hold back; to check; to
hold from action, proceeding, or advancing, either by physical
or moral force, or by any interposing obstacle.’” Anglin, 169
F.3d at 164 (emphasis omitted) (quoting Webster’s Deluxe
Unabridged Dictionary (1979) at 1544). Similarly, the Ninth
Circuit has turned to the dictionary in an effort to discern the
meaning of the enhancement. United States v. Foppe, 993 F.2d
1444, 1452 (9th Cir. 1993) (“The dictionary defines ‘restraint’
as (1) the act of holding back from some activity or (2) by
means of force, an act that checks free activity or otherwise
controls.” (citing Webster’s Third New International
Dictionary 1937 (1986))). The Fourth Circuit has also
recognized that the enhancement requires some form of
restraint, stating “[t]he intended scope of the USSG
§ 2B3.1(b)(4)(B) enhancement is to punish a defendant who
deprives a person of his physical movement.” United States v.
Dimache, 665 F.3d 603, 609 (4th Cir. 2011).
We agree that, in order to impose the enhancement, a
defendant should be deemed to have engaged in actions that
restrict a victim’s freedom of movement in some manner.
Requiring a restriction of a victim’s freedom of movement is
consistent not only with the dictionary definition of restraint,
but also with the examples of “being tied, bound or locked up”
13
provided in the Guidelines. All three of those examples restrict
a victim’s freedom of movement. While tying and binding a
victim require touching the person, it is possible to lock
someone up without touching them. In addition, a defendant
could direct one victim to tie up another victim, an action that
would not require the defendant to touch the victim, but would
clearly fall within the specific examples set forth in the
Guidelines. We therefore reiterate our statement in
Copenhaver that “[n]o actual touching is required to effect
physical restraint.” 185 F.3d at 182.
3. Providing the victim with no alternative but
compliance
As we observed in Copenhaver, application of the
enhancement for “physically restrained” is appropriate “when
the defendant ‘creates circumstances allowing the persons no
alternative but compliance.’” Id. at 180 (quoting United States
v. Kirtley, 986 F.2d 285, 286 (8th Cir. 1993)). The Second,
Seventh,4 Eighth, and Eleventh Circuits have all similarly
recognized that providing a victim with no alternative but
4
Earlier this year, the Seventh Circuit noted that some
of its cases had extended the concept of “no alternative to
compliance” from physical into psychological restraints.
Herman, 930 F.3d at 876-77. In light of that concern, the Court
noted that “[t]o the extent that those earlier cases allow for the
application of the ‘physical restraint’ enhancement based
solely on psychological coercion—including the coercion of
being held at gun point—we hereby disapprove those
holdings.” Id. at 877.
14
compliance plays a role in determining whether to apply the
enhancement.
For example, in United States v. Rosario, 7 F.3d 319 (2d
Cir. 1993), the Second Circuit affirmed application of the
enhancement because the defendant, “[b]y standing on his
victim’s throat while committing the robbery, . . . facilitated
the commission of the offense in that the victim ‘could do
nothing about [his] situation because of the physical restraint.’”
7 F.3d at 321 (quoting United States v. Doubet, 969 F.2d 341,
347 (7th Cir. 1992) abrogated on other grounds by United
States v. Dunnigan, 507 U.S. 87(1993)).
In United States v. Victor, the Eleventh Circuit noted
that the enhancement is applicable when the defendant’s
conduct “ensure[s] the victims’ compliance and effectively
prevent[s] them from leaving.” 719 F.3d 1288, 1290 (11th Cir.
2013) (quoting United States v. Jones, 32 F.3d 1512, 1518–19
(11th Cir. 1994)). The court in Victor concluded that by
threatening the victim with what the victim believed was a gun
and thereby preventing the victim from escaping, the defendant
physically restrained her within the meaning of the
enhancement. Id. (mentioning that the victim was “forced to
comply”).
In Kirtley, the Eighth Circuit concluded that although
the defendant himself did not bind the victims, he ordered them
to bind themselves at gun point and therefore, because the
victims had “no alternative but to obey,” the defendant
physically restrained them. 986 F.2d at 286 (“a defendant
physically restrains persons if the defendant creates
circumstances allowing the persons no alternative but
compliance.”). Similarly, in United States v. Lee, the Eighth
Circuit affirmed application of the sentencing enhancement on
15
the ground that the defendant physically restrained the victim
by striking her with a gun, thereby “creat[ing] circumstances
allowing the [woman] no alternative but compliance.” 570
F.3d 979, 983 (8th Cir. 2009) (quoting Kirtley, 986 F.2d at 286)
(alteration in original); see also United States v. Schau, 1 F.3d
729, 730 (8th Cir. 1993) (concluding that application of the
enhancement was warranted where the defendant ordered the
victims into an unlocked vault from which they could easily
have freed themselves on the ground that the victims were
forced to comply).
We agree that, in order to impose the enhancement for
physical restraint, a defendant’s actions should leave a victim
with no alternative but compliance.5 While we commented on
this factor in dicta in Copenhaver, we now formally adopt it as
a factor to consider when imposing the enhancement.
5
In Herman, the Seventh Circuit observed that “[t]he
phrase ‘operation of circumstances that permit no alternative
to compliance’ could be understood to cover purely
psychological coercion.” Herman, 930 F.3d at 876. As we
have already stated, we believe that physical, not
psychological, restraint is required in order to impose the
enhancement. Our inclusion of a victim having no alternative
but compliance as a factor to consider in the physical restraint
analysis does not erase the need for the restraint to be physical,
nor does it open the door for psychological restraints to be
considered.
16
4. Focusing on the victim for some period of time
The Fourth and Tenth Circuits have recognized a need
to consider the duration of the restraint in imposing the
enhancement. The Fourth Circuit distinguished between
situations where the victims were “confined to a room for some
time” or “held and threatened for a long enough period to
accomplish the cash withdrawal,” and the brief amount of time
the defendant held his victim during the stabbing at issue in the
case before it. United States v. Mikalajunas, 936 F.2d 153, 156
(4th Cir. 1991). The Court concluded that “the examples of
physical restraint in the guidelines, while not all inclusive,
imply that the guidelines intend an enhancement for something
other than a brief holding as part of a stabbing.” Id. (emphasis
added). Similarly, the Tenth Circuit concluded that “in
determining whether the physical restraint enhancement was
properly applied we should examine the nature and duration of
the restraint.” United States v. Khleang, 3 F. App’x 672, 675
(10th Cir. 2001).6
The consideration of duration of the physical restraint
echoes the requirement for “sustained focus on the restrained
person that lasts long enough for the robber to direct the victim
into a room or order the victim to walk somewhere” identified
by the Ninth Circuit. United States v. Parker, 241 F.3d 1114,
1118 (9th Cir. 2001). The Court further opined that “[i]t is
therefore likely that Congress meant for something more than
briefly pointing a gun at a victim and commanding her once to
get down to constitute physical restraint, given that nearly all
6
The Tenth Circuit allows citation to unpublished
opinions as persuasive, but not precedential, authority. 10th
Cir. R. 32.1.
17
armed bank robberies will presumably involve such acts.” Id.at 1118–19; see also United States v. Albritton, 622 F.3d 1104,
1107–08 (9th Cir. 2010) (concluding that the sustained focus
requirement was met where the defendant directed the victim
around the premises and followed right behind her with a gun
in his hand).
We note that the Sixth Circuit, in United States v.
Coleman, rejected the “sustained focus” standard that was
articulated by the Ninth Circuit in Parker. 664 F.3d 1047, 1050
(6th Cir. 2012) (“No other circuit has adopted Parker’s view,
and our reading aligns with those circuits that read the text
more broadly.”). However, the Sixth Circuit noted that even if
it did adopt Parker’s “sustained focus” requirement, the
defendant’s conduct would still warrant imposition of the
enhancement because, by forcing the victim to go to a different
place and stay there, the defendant’s focus lasted long enough
to satisfy Parker’s sustained focus standard. Id. at 1050–51.
We agree with those courts that have identified a
durational requirement in order to impose the enhancement.
As the Fourth Circuit aptly noted, all of the examples of
physical restraint listed in U.S.S.G. § 1B1.1 – being tied,
bound, or locked up – imply more than a momentary restraint.
As such, we shall include duration of the restraint as a factor in
our analysis determining application of the enhancement.7
7
Our dissenting colleague believes that “the physical
restraint need only last long enough ‘to facilitate the
commission of the offense or facilitate escape.’” Dissent at 11
(quoting U.S.S.G. § 2B3.1(b)(4)(B)). He finds that the few
seconds the employee was on the ground facilitated the
commission of the robbery because “Bell was able to grab
18
5. Placement in a confined space
In Copenhaver, we examined this concept and
concluded that “[i]t is the perpetrator’s act of enclosing or
confining the victim in a space or with a barrier, actual or
threatened, that constitutes the action meriting enhancement of
the offense level.” 185 F.3d at 183. The inclusion of this factor
is helpful to our jurisprudence. We include it here to formalize
its relevance in determining the appropriate application of the
enhancement.
In sum, we conclude that, in order to impose the
enhancement for physical restraint, a district court should
determine if the defendant’s actions involved the use of
physical force that limited the victim’s freedom of movement,
money out of the cash register after shoving the employee to
the ground.” Id. We simply cannot agree that the few seconds
during which the employee was on the floor allowed Bell to
commit the robbery in the same way being tied, bound, or
locked up would. The examples provided in the Guidelines
imply the restraint has to last for some period of time greater
than a few seconds.
If we were to use the Dissent’s standard of the restraint
lasting only long enough to facilitate the commission of the
offense or facilitate escape, then we would be compelled to
impose the enhancement based on Bell pushing the employee
away during their struggle since that push was physical and it
allowed Bell to escape. We simply cannot agree that such a
brief encounter is what the Guidelines contemplate.
19
with a sustained focus on the victim for some period of time
which provided the victim with no alternative but compliance.
No single factor is dispositive nor does any factor carry more
weight than any other factor; rather, district courts should
balance all of these factors. Further, as stated in Section
2B3.1(b)(4)(B), the restraint must be imposed “to facilitate
commission of the offense [of robbery] or to facilitate escape.”
The Parties’ Arguments
With these factors in mind, we turn to the parties’
arguments.
Relying on Anglin and Rosario, Bell argues that “more
than a mere threat is required to establish physical restraint.”
Appellant’s Br. 10. He asserts, in conclusory fashion, that
“pushing someone to the floor, and threatening them with what
apparently is a toy gun is not inherently ‘physical restraint.’”
Appellant’s Br. 12. Bell, in his reply brief, posits that if the
enhancement is applied here, “then arguably all robberies
justify the 2-level enhancement.” Reply Br. 1.
On the other hand, the government engages in a
thorough discussion of the cases interpreting physical restraint,
concluding that “[h]olding the weapon to the victim’s neck and
throwing him to the floor achieved the same objective as
various other forms of physical restraint – namely, it confined
the victim to the floor, permitting the defendant to access the
cash register and steal cash.” Appellee’s Br. 22. The
government notes that Bell’s conduct encompassed more than
simply pointing a gun at a victim since “Bell used direct
physical contact to put the victim on the floor and attempt to
confine him to that space.” Appellee’s Br. 23. The
government also emphasizes that Bell “did not simply brandish
20
the fake gun, but placed the gun to the victim’s neck and threw
him on the ground, and then struck the victim with the gun in
an effort to keep the victim from intervening.” Id. Analogizing
to the fact in Copenhaver that the fire screen placed across the
fireplace was removable, the government claims that the fact
“the victim persisted in his efforts to thwart the robbery once
he realized the firearm was fake is of no moment.” Id. Rather,
the important fact, in the government’s view, “was the act of
forcing the victim to the ground and attempting to hold him
there.” Id.Despite the government’s efforts to demonstrate Bell
physically restrained his victim, we disagree. While grabbing
the victim by the neck and forcing him to the floor satisfies the
requirement that the force be physical, we cannot say that the
victim was left with no alternative but compliance (a point the
government never addresses) since the victim twice attempted
to thwart the robbery.8 Further, the physical restraint was quite
8
While the Dissent observes “that the focus is ‘on the
action of the defendant, not on the reaction of the victim,’”
Dissent at 10 (quoting Herman, 930 F.3d at 876), we are not
focusing on the employee’s reaction. Rather, we are
considering the result of Bell’s action of grabbing the
employee’s neck and shoving him to the floor. Since the
employee was clearly able to move, as evidenced by his
attempt to thwart the robbery, we cannot say he was restrained.
Further, in commenting that “the enhancement aims to punish
the act of physical restraint, successful or not,” Dissent at 9, the
Dissent misstates our precedent in Copenhaver. Nowhere in
Copenhaver do we state that only an attempt at physically
restraining a victim will suffice to impose the enhancement,
nor do the Guidelines indicate that attempted restraint is a basis
21
limited in time. It could not have taken more than a few
seconds for Bell to grab the victim’s neck and shove him to the
floor. Thus, there was no sustained focus on the victim.
Instead, based on the victim’s description of the incident, the
entire interaction between him and Bell seems to have taken
only seconds from start to finish. Looking at the totality of the
circumstances, we cannot conclude that Bell physically
restrained his victim sufficiently to invoke application of the
enhancement. If we apply the enhancement here, then any
crime that involves a chance encounter with a victim with any
physical dimension would require application of the
enhancement.
B. Use of a dangerous weapon
Bell argues that he “brandished,” rather than “otherwise used”
a dangerous weapon under Application Notes 1(C) and 1(I) to
U.S.S.G. § 1B1.1, and that he therefore should not be subject
to the four-level use of a dangerous weapon enhancement of
U.S.S.G. § 2B3.1(b)(2)(D).
The Sentencing Guidelines define the above terms as follows:
“Brandished” with reference to a dangerous
weapon (including a firearm) means that all or
part of the weapon was displayed, or the
presence of the weapon was otherwise made
for imposing the enhancement. In Copenhaver, we
acknowledged, based on the flimsy nature of the fireplace
screen, that a barrier enclosing a victim could be “actual or
threatened,” 185 F.3d at 183, but we did not extend that
concept to conclude the physical restraint need not succeed.
22
known to another person, in order to intimidate
that person, regardless of whether the weapon
was directly visible to that person. Accordingly,
although the dangerous weapon does not have to
be directly visible, the weapon must be present.
“Otherwise used” with reference to a dangerous
weapon (including a firearm) means that the
conduct did not amount to the discharge of a
firearm but was more than brandishing,
displaying, or possessing a firearm or other
dangerous weapon.
U.S.S.G. § 1B1.1, cmt. 1(C) & 1(I).
We established a distinction between brandishing and
otherwise using a weapon in United States v. Johnson, 199
F.3d 123, 127 (3d Cir. 1999) (quoting United States v.
LaFortune, 192 F.3d 157, 161-62 (1st Cir. 1999) (alterations
in original)):
[A] person may “brandish” a weapon to “advise”
those concerned that he possesses the general
ability to do violence, and that violence is
imminently or immediately available . . . .
Altering this general display of weaponry by [for
instance] specifically leveling a cocked firearm
at the head or body of a bank teller or customer,
ordering them to move or be quiet according to
one’s direction, is a cessation of “brandishing”
and the commencement of “otherwise used.”
23
Bell pointed a weapon at the store employee’s neck, ordered
him to the ground, and then struck him with the weapon.
(P.S.R. ¶ 9.) This behavior clearly goes beyond the parameters
we set in Johnson for determining the limits of brandishing a
weapon. 199 F.3d at 127.
Furthermore, in United States v. Orr, 312 F.3d 141, 145
(3d Cir. 2002), we stated that “[n]either the guidelines nor the
caselaw requires infliction of the violent physical contact . . .
or a verbalized threat to harm the victim in order to constitute
‘otherwise used.’” We held in Orr that “pointing a gun at the
head of the assistant manager and ordering her to empty money
into a garbage bag was a ‘specific threat’ directed at her and
was precisely the type of conduct which satisfies the ‘otherwise
used’ requirement.” Id. If “otherwise using” a weapon does
not require even physical contact or a specific verbal threat of
harm, it does not follow that actually striking someone with a
weapon would not constitute use.
Bell argues that his actions do not constitute otherwise
using a firearm under Johnson because the firearm he used was
fake. This argument is inapposite. The Sentencing Guidelines
allow for a four-level increase if a dangerous weapon was
otherwise used. U.S.S.G. § 2B3.1(b)(2)(D). The Guidelines
then define an object as a dangerous weapon if it is
(i) an instrument capable of inflicting death or
serious bodily injury; or (ii) an object that is not
an instrument capable of inflicting death or
serious bodily injury but (I) closely resembles
such an instrument; or (II) the defendant used the
object in a manner that created the impression
that the object was such an instrument (e.g.[,] a
24
defendant wrapped a hand in a towel during a
bank robbery to create the appearance of a gun).
U.S.S.G. § 1B1.1 cmt. n.1(D). In Orr, we held that this
definition applies to § 2B3.1(b)(2)(D): “Application Note 1(d)
of § 1B1.1 clearly instructs that objects that appear to be
dangerous weapons shall be considered dangerous weapons for
purposes of § 2B3.1.” 312 F.3d at 144.
Bell carried a toy gun, which he pointed at the victim’s
neck. Bell then forced the employee to the floor and ultimately
struck him with the weapon. The victim did not realize that the
firearm was fake until after he was struck with it. These factors
indicate that Bell’s actions meet our standards for otherwise
using a dangerous weapon.
25
VI. Conclusion
In sum, we will affirm the District Court’s imposition
of the enhancement for otherwise using a dangerous weapon,
reverse the imposition of the enhancement for physically
restraining the victim, and remand for resentencing, consistent
with this opinion.
26
United States v. Bell
No. 17-3792
CHAGARES, Circuit Judge, concurring in part and dissenting
in part.
I write separately because I believe that the proper
standard of review regarding application of the two United
States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”)
enhancements at issue is clear error, not de novo, as my learned
colleagues hold. Further, although I ultimately agree with the
majority regarding the application of the enhancement for use
of a dangerous weapon, U.S.S.G. § 2B3.1(b)(2)(D), I disagree
with its disposition of Bell’s appeal on the physical restraint
enhancement, U.S.S.G. § 2B3.1(b)(4)(B).
I.
In United States v. Grier, 475 F.3d 556 (3d Cir. 2007),
our en banc Court held that we “review factual findings
relevant to the Guidelines for clear error and . . . exercise
plenary review over a district court’s interpretation of the
Guidelines.” Id. at 570. But Bell does not challenge the
sentencing court’s factual findings or its interpretation of the
Guidelines. He challenges instead its determination that two
of the Guidelines enhancements apply to his case. And Grier
did not provide the standard pertinent to reviewing the
application of an enhancement.
Bell contends that de novo review is appropriate, while
the Government contends that we should review for clear error,
citing our decision in United States v. Richards, 674 F.3d 215(3d Cir. 2012). My colleagues quickly distinguish Richards,
the holding of which they believe the Government has
misconstrued. I disagree with the majority’s conclusion.
Before delving into a discussion of Richards, I address
two notable authorities cited in that opinion. First, we cited 18
U.S.C. § 3742(e), which sets forth principles to be applied by
courts of appeals in reviewing sentences. Richards, 674 F.3d
at 219 n.2. The statute provides that courts of appeals “shall
give due deference to the district court’s application of the
guidelines to the facts.” § 3742(e).
Second, we cited the Supreme Court’s unanimous
decision in Buford v. United States, 532 U.S. 59 (2001), which
in turn, relied upon § 3742(e). Richards, 674 F.3d at 219–20
& n.2. That case involved review of whether Buford’s prior
convictions were “related” under the Guidelines and whether
the Court of Appeals for the Seventh Circuit erred in reviewing
a district court’s sentence under a deferential clear error
standard of review. Buford, 532 U.S. at 60–61; see also United
States v. Buford, 201 F.3d 937, 942 (7th Cir. 2000), aff’d, 532
U.S. 59 (2001). Acknowledging the command of § 3742(e),
the Supreme Court framed the question as “what kind of
‘deference’ is ‘due’” to district courts applying the Guidelines
to facts. 532 U.S. at 63. The Court noted that the answer to
that question “depends on the nature of the question
presented.” Id. (quoting Koon v. United States, 518 U.S. 81,
98 (1996)). It distinguished between “a generally recurring,
purely legal matter, such as interpreting a set of legal words . .
. readily resolved by reference to general legal principles and
standards alone,” and a question that “grows out of, and is
bounded by, case-specific detailed factual circumstances.” Id.
at 65. The Court held that the latter type of question — one of
a “fact-bound nature” — required deference when reviewing
2
the district court’s application of a Guideline. Id. at 66.
Deferential review of a fact-bound application by a district
court was appropriate, the Court reasoned, because of the
“institutional advantages enjoyed by the district court,” id. at
64, including “the comparatively greater expertise of the
District Court,” id. at 66, resulting from the volume of
sentencings trial judges conduct. In addition, the Court
reasoned that “the fact-bound nature of the decision limits the
value of appellate court precedent, which may provide only
minimal help when other courts consider other . . .
circumstances.” Id. at 65–66. The Court concluded that the
question before it was fact bound and that “the appellate court
was right to review this trial court decision deferentially rather
than de novo.” Id. at 64, 66.1
In Richards, we were asked to review an application of
U.S.S.G. § 2C1.2(b)(3), an enhancement that increases an
offense level when the crime involves a “public official in a
high-level decision-making or sensitive position.” 674 F.3d at
217 (quoting U.S.S.G. § 2C1.2(b)(3)). The defendant argued
that application of the enhancement necessarily “involve[d] an
interpretation of the Sentencing Guidelines,” warranting de
1
Even before the Supreme Court’s decision in Buford,
we held in United States v. Ortiz that where application of a
Guideline was “essentially factual,” we would employ a clearly
erroneous standard of review. 878 F.2d 125, 126 (3d Cir.
1989) (quoting United States v. McConney, 728 F.2d 1195,
1202 (9th Cir. 1984) (en banc)). In Ortiz, “we conclude[d] that
the question of a defendant’s aggravating role . . . is ‘essentially
factual’” and determined that we would “reverse the district
court in th[at] case only if its conclusion [were] clearly
erroneous.” Id. at 127.
3
novo review. Id. at 218. We determined instead — relying
upon Buford — that clear error review was appropriate.2 We
reached this determination because Richards was not
challenging “the District Court’s articulation of what it means
to be a government official in a high-level decision-making or
sensitive position, for the District Court used the definition of
the enhancement exactly as it is recited in the Guidelines,” but
rather its “conclusion that the facts . . . fit within the Guidelines
definition of a government official in a high-level decision-
making or sensitive position.” Id. We then held that when
“sentencing adjustments require a district court to closely
examine a set of facts and determine whether they fit within
the definition of the adjustment before deciding whether to
apply the adjustment, we should review that decision for clear
error only.” Id. at 222. For instance, we concluded, “where,
as here, the particular Guideline in question sets forth a
predominantly fact-driven test,” we review for clear error. Id.
at 223; see also United States v. Huynh, 884 F.3d 160, 165 (3d
Cir. 2018) (holding that “[w]e . . . review the District Court’s
application of the relocation enhancement for clear error”
because the question “is, at bottom, ‘a strictly factual test, such
that once the test is stated[,] no legal reasoning is necessary to
the resolution of the issue’” (alteration in original) (quoting
Richards, 674 F.3d at 221)).
Here, we too “consider a district court’s application of
the Guidelines to a specific set of facts.” Richards, 674 F.3d at
2
We recognized in Richards that although the Supreme
Court excised certain parts of § 3742(e) in United States v.
Booker, 543 U.S. 220 (2005), that statute “still call[s] for ‘due
deference’ to be given to a district court’s application of the
Guidelines to the facts.” Richards, 674 F.3d at 219 n.2.
4
219. Because application of either enhancement here
“require[d] [the] district court to closely examine” the facts of
Bell’s case “and determine whether they fit within the
definition[s] of the adjustment[s] before deciding . . . to apply
the[m], we should review th[ose] decision[s] for clear error
only.” Id. at 222. Indeed, the majority’s recitation of a “fact-
driven test” to determine whether the physical restraint
enhancement applies compels clear error review. Id. at 223.
My colleagues distinguish Richards by noting that “Bell
has not contested the facts of his offense” and that Bell is only
challenging the “interpretation and application of two
provisions of the Guidelines.” Maj. Op. 6. But Richards did
not contest the facts of his offense, either — instead, he, like
Bell, challenged the district court’s application or fit of the
enhancement to those undisputed facts. Richards, 674 F.3d at
218; see also United States v. Fish, 731 F.3d 277, 279 (3d Cir.
2013) (determining that clear error was the proper standard to
review application of U.S.S.G. § 2S1.1(b)(3) where “there
[wa]s no dispute over the factual determinations but the issue
is whether the agreed-upon set of facts fit within the
enhancement requirements”). Further, Buford also argued that
no deference was appropriate where the district court was
simply “applying a Sentencing Guidelines term to undisputed
facts.” Buford, 532 U.S. at 64. The Supreme Court did not
credit this argument and held, as described above, that it was
the “fact-bound nature” of the district court’s application of a
Guideline that compelled deferential review of the application.
Id. at 66. As a result, whether the facts are disputed or
undisputed is immaterial to the type of deference we give to a
district court’s application of a Guidelines enhancement.
5
I respectfully dissent because I believe that the District
Court’s application of the enhancements in this case should be
reviewed under the clearly erroneous standard.
II.
Applying the clear error standard of review that I
believe is appropriate in this matter, I now consider Bell’s
challenges to the application of sections 2B3.1(b)(2)(D) and
2B3.1(b)(4)(B) of the Guidelines.
A.
The majority notes that this Court has not considered
the parameters of “physical restraint” in a precedential opinion
since United States v. Copenhaver, 185 F.3d 178 (3d Cir.
1999). In that case, we declined “to adopt any specific test to
be used in interpreting” U.S.S.G. § 2B3.1(b)(4)(B), as the facts
of that case supported application of the enhancement in any
event. Maj. Op. 9.
I do not necessarily fault my colleagues for desiring to
set forth a clearer standard regarding the application of
U.S.S.G. § 2B3.1(b)(4)(B). But I believe that this case can be
decided using the plain text of the enhancement and our current
jurisprudence. Using those sources, I believe that the District
Court was correct to apply the physical restraint enhancement.
And I reach that same conclusion even after considering the
factors laid out by the majority.
6
1.
The language of U.S.S.G. § 2B3.1(b)(4)(B) and
Copenhaver dictate that application of the enhancement in this
matter was proper. As noted by the majority, Bell’s offense
level may be increased by two levels pursuant to the
enhancement “if any person was physically restrained to
facilitate commission of the offense or to facilitate escape.”
U.S.S.G. § 2B3.1(b)(4)(B). “Physical[] restrain[t]” as defined
by the Guidelines, is “the forcible restraint of the victim such
as by being tied, bound, or locked up.” U.S.S.G. § 1B1.1 cmt.
n.1(K).3 In Copenhaver, we held that application of the
enhancement was warranted where a robber forced a victim
from one room to another, eventually having him get into a
fireplace and placing a screen across it. 185 F.3d at 182. The
robber also repeatedly threatened the victim throughout the
encounter and earlier displayed what appeared to be a gun. Id.After considering the conclusions that our sister appellate
courts reached in other cases challenging the enhancement’s
application, we concluded that the defendant’s actions
warranted application of U.S.S.G. § 2B3.1(b)(4)(B). Id. at
181–82. We explained that the defendant’s action of forcing
the victim into a fireplace in another room behind a screen
confined the victim, similar to “lock[ing] [him] up,” id. at 182
(first alteration in original); see also U.S.S.G. § 1B1.1 cmt.
n.1(K), and that his placement of the screen “sign[aled] his
intention to impede” the victim’s interference with the crime,
Copenhaver, 185 F.3d at 182. We also explained that the
defendant’s display of a weapon, repeated threats, and
placement of the screen left the victim no alternative but to
3
Like the majority, I cite to the Guidelines as they
existed when Bell was sentenced.
7
comply with the demand that he get into the fireplace and
remain there. Id.The same is true here. When Bell grabbed the employee
by the neck, pointed a gun at his neck, and then shoved him to
the floor before Bell began extracting money from the cash
register, he used physical force to facilitate the commission of
his crime and attempted to confine the employee to the floor.
When the employee tried to stop Bell, Bell struck him with the
weapon. Bell’s use of force against the employee, like the
screen in Copenhaver, both served as an attempt to keep the
employee confined to the floor and signaled his intention to
impede the employee’s interference with the crime.
That the employee was not deterred by Bell’s actions
does not, in my view, prove that Bell’s conduct lacked
Copenhaver’s “no alternative but compliance” factor. We
should not permit “a victim’s boldness [to] lessen[] a
criminal’s culpability.” United States v. Smith, 767 F.3d 187,
191 (3d Cir. 2014); see also id. at 188, 190 (upholding
application of the abduction enhancement, U.S.S.G. §
2B3.1(b)(4)(A), even though the victim “disregarded some of
[the defendant’s] commands and ultimately escaped”). Indeed,
we suggested as much in Copenhaver, explaining that the
screen’s feebleness “d[id] not negate physical restraint”
because “[i]t is the perpetrator’s act of enclosing or confining
the victim in a space or with a barrier, actual or threatened, that
constitutes the action meriting enhancement of the offense
level.” 185 F.3d at 182–83 (emphases added).
At bottom, my reading of the enhancement, our
precedent, and the record leads me to conclude that the District
Court did not clearly err in enhancing Bell’s sentence by two
8
levels pursuant to U.S.S.G. § 2B3.1(b)(4)(B). To that end, I
would affirm the District Court’s imposition of the
enhancement.
2.
I express no opinion on the appropriateness of the
factors adopted by the majority to be balanced by sentencing
courts when determining whether the physical restraint
enhancement should be applied. But assuming that these
factors set forth an appropriate standard by which to assess
potential applications of U.S.S.G. § 2B3.1(b)(4)(B), I
nonetheless would conclude that application of the
enhancement was warranted in this case.
Applying its new test, the majority concludes that Bell’s
conduct does not amount to physical restraint. It determines
that although Bell used physical force against the employee
when Bell grabbed his neck and shoved him to the floor (factor
(1)), the employee was not “left with no alternative but
compliance . . . since [he] twice attempted to thwart the
robbery” (factor (3)), and “there was no sustained focus on the
victim” (factor (4)), as “the entire interaction . . . seems to have
taken only seconds from start to finish.” Maj. Op. 21–22.
I must disagree with the majority’s conclusions as to the
third and fourth factors, as well as its balancing of all of the
factors. As explained above, the employee’s attempts to
interfere with the robbery should not preclude satisfaction of
the no-alternative-but-compliance factor here because the
enhancement aims to punish the act of physical restraint,
successful or not. See Copenhaver, 185 F.3d at 182–83 (“It is
the perpetrator’s act of enclosing or confining the victim . . . ,
9
actual or threatened, that constitutes the action meriting
enhancement of the offense level.”); see also United States v.
Herman, 930 F.3d 872, 876 (7th Cir. 2019) (noting, in a case
holding that psychological coercion is insufficient to warrant
application of U.S.S.G. § 2B3.1(b)(4)(B), the “more general
point” relayed by “the cases that have found physical restraint”
is that the focus is “on the action of the defendant, not on the
reaction of the victim,” and explaining that “the victim’s
reaction does not determine whether there is or is not physical
restraint”).
I also disagree with the majority’s conclusion regarding
its fourth factor, assessing the duration of the restraint.
Although I refrain from commenting on the propriety of
adopting this factor — that is, whether the majority was correct
to adopt the narrow view of the Court of Appeals for the Ninth
Circuit in the circuit split on this issue — I believe that Bell’s
conduct also satisfies this factor. The majority concludes that
it does not in part because “[i]t could not have taken more than
a few seconds for Bell to grab the victim’s neck and shove him
to the floor,” and therefore, “there was no sustained focus on
the victim.” Maj. Op. 22.4 But that was not the extent of Bell’s
conduct — he also struck the employee when the employee
attempted to interfere with the robbery. In any event, it likely
also took only moments for the robber in United States v.
Coleman, 664 F.3d 1047, 1048, 1050 (6th Cir. 2012), to order
a bank employee at gunpoint to exit his “office adjacent to the
bank lobby . . . and sit on the floor in the lobby,” yet the Court
4
The record does not reveal how long the restraint
lasted. Bell claims it was “brief,” Reply Br. 3, or “very brief,”
Bell Br. 8, while the Government suggests that “the restraint
may have been short-lived,” Gov’t Br. 23.
10
of Appeals for the Sixth Circuit concluded that such conduct
would satisfy the “sustained focus” standard adopted by the
Court of Appeals for the Ninth Circuit.5 In my view, the
physical restraint need only last long enough “to facilitate
commission of the offense or to facilitate escape.” U.S.S.G. §
2B3.1(b)(4)(B). Here, it did the former, as Bell was able to
grab money out of the cash register after shoving the employee
to the ground.
On balance, the factors in the majority’s newly
proffered test weigh in favor of finding that Bell physically
restrained the employee. As the majority recognizes, he used
physical force against the employee. Next, Bell in fact
restrained the employee — or “restrict[ed] [his] freedom of
movement in some manner,” Maj. Op. 13 — when Bell
grabbed him, pointed a gun at him, shoved him to the floor,
and then hit him when he tried to interfere with the robbery.
See United States v. Ossai, 485 F.3d 25, 32 (1st Cir. 2007)
(concluding that a “large and powerful” robber’s placement of
a gun and “his hand on the victim’s neck and shoulder to force
him into a kneeling position, especially while stating that ‘I do
not want to hurt you,’ unquestionably qualifies as a ‘physical
5
It appears to me that the Court of Appeals for the Ninth
Circuit’s “sustained focus” standard might apply only when the
conduct relied upon to prove physical restraint consists solely
of issuing orders to victims at gunpoint rather than some sort
of bodily contact with the victim, as here. See, e.g., United
States v. Parker, 241 F.3d 1114, 1118–19 (9th Cir. 2001)
(concluding, with “little doubt,” that “grabb[ing] a teller by her
hair and pull[ing] her up from the floor . . . constitute[s]
physical restraint,” but ordering a teller at gunpoint to get on
the floor does not, absent a sustained focus on the teller).
11
restraint’ under any reasonable connotation of that term,” as it
“diminish[ed] [his] freedom of movement and ability to resist
or escape”). Finally, the employee was restrained for enough
time that Bell was able to steal $1,000 from the cash register.
That this duration of time is adequate under the majority’s test
would appear to be supported by a decision relied upon and
quoted by the majority distinguishing a case where the victim
was, as here, “held and threatened for a long enough period to
accomplish the cash withdrawal.” Maj. Op. 17 (quoting United
States v. Mikalajunas, 936 F.2d 153, 156 (4th Cir. 1991)).
Based on this record, and reviewing this appeal using the
majority’s new framework, I cannot conclude that the District
Court clearly erred when it applied the physical restraint
enhancement to Bell’s conduct and would therefore affirm
application of that enhancement.6
B.
I concur with the majority’s disposition of Bell’s appeal
concerning application of the otherwise-use-of-a-dangerous-
weapon enhancement. I only note that I would reach this same
conclusion on a clear error review of the District Court’s
sentence, as the record reveals that Bell was armed with a toy
gun, which appeared to the employee to be a real gun until a
part of it broke off, and that Bell pointed the gun at the
employee’s neck, shoved him to the ground, and later struck
him with the gun.7
6
I would reach this same conclusion on a de novo
review of the record.
7
If the standard by which we review this issue were,
indeed, de novo, I would concur with the majority’s conclusion
12
III.
For the above reasons, I respectfully concur in part and
dissent in part.
(and its reasoning therefore) that U.S.S.G. § 2B3.1(b)(2)(D)
applies to Bell’s conduct.
13