United States v. David Ziesel, 38 F.4th 512

Defendant David Ziesel robbed a bank while masked, ordered tellers to "get on the ground," and left with money; he had no weapon and did not touch, bind, or move the tellers to another location.
Ziesel pleaded guilty to bank robbery (18 U.S.C. § 2113(a)). The PSR applied a two-level USSG § 2B3.1(b)(4)(B) "physical restraint" enhancement, raising his Guidelines range from 37–46 to 46–57 months.
The district court overruled Ziesel’s objection, applied the two-level enhancement, and sentenced him to 46 months (the bottom of the enhanced range), noting victims’ compliance and fear.
Ziesel appealed the enhancement’s application; the Government defended it and alternatively argued any error was harmless.
The Sixth Circuit majority reversed and remanded for resentencing without the physical-restraint enhancement, holding the enhancement did not apply on these facts and the error was not harmless.

Issue	Plaintiff's Argument (Ziesel)	Defendant's Argument (Government)	Held
Whether ordering tellers to get on the ground (without weapon, touching, binding, or moving them) qualifies as "physical restraint" under USSG § 2B3.1(b)(4)(B).	The instruction to get on the ground, without weapon, binding, movement, or implied weapon, is not "physical restraint" under the Guidelines.	Victims’ fear and acquiescence can create the same limitation on movement as a weapon or physical contact; defendant’s words sufficed to physically restrain victims.	Reversed: enhancement does not apply absent something more (e.g., binding, movement to another location, or force/implied weapon producing control).
If the enhancement was erroneous, whether the error was harmless.	N/A (appellant argues error required remand).	Any error was harmless because the district court said it would have imposed the same 46‑month sentence regardless.	Not harmless: Government failed to prove the same sentence would certainly have been imposed; Guidelines range influences sentencing and court had considered a 37‑month variance.

United States v. Coleman, 664 F.3d 1047 (6th Cir. 2012) (upheld enhancement where defendant brandished a BB gun and ordered a victim to sit on the floor).
United States v. Howell, 17 F.4th 673 (6th Cir. 2021) (upheld enhancement where teller was kept on floor at gunpoint and threatened).
United States v. Hill, 963 F.3d 528 (6th Cir. 2020) (applied abduction/restraint enhancements where employees were bound and moved).
United States v. Perkins, 89 F.3d 303 (6th Cir. 1996) (explaining enhancements punish distinct acts of violence beyond robbery elements).
Molina‑Martinez v. United States, 578 U.S. 189 (2016) (Guidelines errors often not harmless; incorrect range can reasonably affect sentence).
United States v. Rucker, 178 F.3d 1369 (10th Cir. 1999) (discussed overlap between pointing a gun and physical restraint; not every act that induces fear is physical restraint).
United States v. Taylor, 961 F.3d 68 (2d Cir. 2020) (cautioned against interpreting "physically restrained" so broadly that nearly every robbery qualifies).
United States v. Victor, 719 F.3d 1288 (11th Cir. 2013) (threat perceived as a gun and forcing a short movement constituted physical restraint).
United States v. Copenhaver, 185 F.3d 178 (3d Cir. 1999) (confining or enclosing a victim warrants enhancement).
United States v. Dimache, 665 F.3d 603 (4th Cir. 2011) (pointing a gun and ordering tellers to the floor supported enhancement).