Wednesday, June 3rd, 2020

The Second Circuit vacates and remands for resentencing because of the erroneous application of the Sentencing Guidelines enhancements for possessing a “dangerous weapon” (§ 2B3.1, cmt. n.2) and “physical restraint” (§ 2B3.1(b)(4)(B)) – – which increase the offense level for robbery offenses. United States v. Taylor, No. 18-1710,  __F.3d__, 2020 WL 2745536  (May 27,  2020). 

In United States v. Taylor, the Circuit interprets two provisions of the Sentencing Guidelines that increase the offense level for robbery. It concludes that the sparse facts “set forth in the Presentence Report (PSR), upon which the district court relied at sentencing, are insufficient to support the application of either enhancement.” 2020 WL 2745536 at *1.

First, the Circuit holds that a defendant’s “hand” doesn’t become an “object” qualifying for the “dangerous weapon” enhancement when he gestures (with his hand) that he has a gun in his belt, but he’s actually unarmed and doesn’t have an object that “resembles” a gun. See U.S.S.G.§ 2B3.1(b)(2)(E).

Second, on the physical restraint enhancement, the Circuit holds that a robber’s act of ordering  a person to move from one room into another room — without actually retraining the person or locking the person in a room — doesn’t qualify as “physical[] restrain[t]” under the Guidelines. See U.S.S.G. § 2B3.1(b)(4)(B).

In addition, the Court addressed a claim that the government breached the plea agreement. It  concluded, however, there wasn’t a breach, under the plain error standard.


The defendant, along with co-conspirators, participated “in a string of cellphone store robberies,” completing three robberies and attempting a fourth. 2020 WL 2745536 at *1.

He used his hand to indicate he had a gun in his belt. But “there is no indication in the PSR that he ‘used [his hand] in a manner that created the impression that [his hand] was’ a dangerous weapon.” Id. at *5 (brackets and emphasis in original).

Rather,  “he used his hands to gesture in a manner suggesting that he had a firearm elsewhere, specifically, in his belt.” Id. (emphasis in original).  During one robbery, he “kept one hand near his waistband, not inside it.” But “[a]n unconcealed hand would not appear to be itself a weapon.” Id.  In another robbery, he “pretended to possess firearms by holding his belt.” Id.

Regarding “physical restraint,” during one robbery, he “pushed a store employee into an inventory room and put the merchandise he stole into a laundry bag, before fleeing on foot.” Id. at *1. In another robbery, he “forced the two employees into the back of the store” (and again filled laundry bags with cellular telephones before leaving). Id. And in a third robbery, the defendants  “herded the employees and customers into a back room, where they had an employee open a safe,” from which they took money. Id. at *2.

The parties’ plea agreement didn’t include enhancements for a “dangerous weapon” or “physical restraint.” But the PSR included them. And it also determined a Criminal History Category (“CHC”) VI, rather than the CHC IV estimated in the plea agreement. The plea agreement had  estimated the sentencing range at 57 to 71 months. The PSR’s sentencing range was 130 to 162 months (because of the 2 robbery enhancements and the CHC VI) .

In its sentencing submission, the government argued for a Guidelines range of 92 to 115 months — the range corresponding to the offense level in the plea agreement “and a criminal history category VI, as calculated by the probation department.” Id. at *3. And it argued for a sentence within that range. Id. at *10 (i.e., within “‘the Guidelines range ‘correspond[ing] to the offense level set forth in the plea agreement except for the criminal history category,’ without applying the enhancements”).

The district court adopted the PSR’s calculations (for a range of 130 to 162 months) and varied downward to a sentence of 84 months. Id. at *3.

Standard of Review

The abuse of discretion standard that applies in reviewing “the procedural and substantive reasonableness” of a sentence, “incorporat[es] de novo review of questions of law, including interpretation of the Guidelines, and clear error review of questions of fact.” 2020 WL 2745536 at *4. But “[w]here … the record underlying the application of a Guidelines enhancement is undisputed,” the question “turns primarily on the legal interpretation of a [G]uideline term,” and the Circuit “perform[s] a more searching review’ than … where the Guideline determination closely resembles a finding of fact.” Id. (citation and internal quotation marks omitted).

The “dangerous weapon” enhancement (3 levels): § 2B3.1(b)(2)(E)

Under the robbery Guideline, a three-level enhancement applies “if a dangerous weapon was brandished or possessed.” U.S.S.G. § 2B3.1(b)(2)(E).  A dangerous weapon is defined as “an instrument capable of inflicting death or serious bodily injury.” Id. § 1B1.1, cmt. n.1(E)(I).

In Taylor, the Circuit sought to clarify the circumstances under which an object that is not an actual, dangerous weapon can be treated as one for purposes of the Guidelines. 2020 WL 274553 at *4-*6.

Under the Guidelines, the dangerous weapon enhancement may apply “in two circumstances where the defendant does not have an actual weapon”: (1) if “‘the object closely resembles’” an instrument capable of inflicting death or serious bodily injury; or (2) “‘the defendant used the object in a manner that created the impression’” that he possessed such an instrument. 2020 WL 274553 at *4 (quoting § 2B3.1, cmt. n.2).

Here, the defendant did not possess either a dangerous weapon “or an object that closely resembled one.”  Id. at *4.

The Circuit stated that, “[w]hile someone could conceal a hand within his or her pants to make the hand appear to be a weapon, using a hand to hold a belt is not using one’s hand to make the hand appear to be a weapon.” Id. at *5 (emphasis in original). It would be different, the Circuit said,  if  the defendant’s hand “was concealed such that the hand itself appeared to be a dangerous weapon.” Id. at *5. Here, therefore, the defendant’s unconcealed hand didn’t qualify as a dangerous weapon.

The physical restraint enhancement (2 levels):  § 2B3.1(b)(4)(B)

The Guidelines define “physically restrained” as “the forcible restraint of the victim such as by being tied, bound, or locked up.” U.S.S.G. §1B1.1, cmt. n.1(L).

The Circuit has addressed the meaning of physically restrained on several prior occasions and held that the words “physically restrained” should be “interpreted narrowly” because a typical robbery involves some kind of retraining of a victim’s physical movements. Otherwise, “‘virtually every robbery would be subject to the 2-level enhancement for physical restraint unless it took  place in unoccupied premises’ or involved a ‘quixotic’ robber who explicitly instructed the victims that they should ‘feel free to move about’ or leave during the robbery’s commission.” Id. at *7 (quoting United States v. Anglin, 169 F.3d 154, 165 (2d Cir. 1999)).

The Circuit, however, had “not previously ruled” on the question of whether a robber’s act of ordering a victim to move “from one room into another qualifies as physical restraint[.]” 2020 WL 2745536 at *8.

It concluded that “[t]he fact that the direction to move was into another room, rather than within the same room, is, in and of itself, insufficient to establish qualifying physical restraint under our reading of the Guidelines.” Id. at *8. Rather,  “movement into another room during a robbery only qualifies for the enhancement if the defendant then physically restrained victims in that room.” Id. It noted that the Guidelines offer the example of “‘lock[ing] up’ victims as a type of physical restraint.’” Id. at *9 (quoting U.S.S.G. § 1B1.1, cmt. n.1(L)). And other circuits, it noted, had applied the enhancement when employees were locked in a vault or where victims had been forced into a “safe room” and the door was closed. Id. at *9.

Accordingly, the Circuit vacated the sentence, stating: “we vacate the district court’s application of the physical restraint enhancement on the facts before us, and remand for resentencing without the enhancement, absent a finding, consistent with this opinion, that [the defendant] physically restrained victims in a back room or inventory room during any of the robberies.” Id. at *9.

The breach-of-plea-agreement claim

The defendant, “for the first time on appeal,” argued that the government breached the plea agreement “by advocating for application of the physical restraint and dangerous weapon enhancements.” 2020 WL 2745536 at *9. So plain error review applied.

The defendant didn’t ask to withdraw the plea, “but only that he be resentenced without application of the dangerous weapon or physical restraint enhancements.” Id., n.11. Although the Circuit had ruled that the two enhancements had been applied in error, it nevertheless reached the breach-of-plea-agreement argument “because, if the government indeed breached the plea agreement, this would counsel towards remanding for resentencing before a different judge.” Id.

Also, the defendant didn’t challenge the government’s decision to argue for a higher sentence based on the higher criminal history in the PSR. The breach, he argued, was a statement  in the government’s sentencing submission “that the PSR was ‘correct’” in “appl[ying] the dangerous weapon and physical restraint enhancements.” Id. at *10.

The Circuit found no plain error. The government’s sentencing submission, it noted, had simply stated “summarily in one sentence that the enhancements were correctly applied[.]” Id. at *11. And the government had not “advocat[ed] for adoption of the enhancements” because “[i]t said that it recommended adoption of a Guidelines range that did not include the enhancements, and that it considered a sentence within such a range sufficient.” Id.

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Categories: breach, guideline, robbery
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