904 F.3d 200
2d Cir.2018Background
- On Sept. 27, 2016, Paul and co-defendants robbed Mill Park Pharmacy; one co-defendant pointed a gun and ordered a clerk to go to the cash register and not move; Paul acted as lookout.
- Surveillance video shows the clerk complied, opened the register, and the robbers took cash, cigarettes, a phone, and a purse; total loss $1,205.
- Paul pled guilty to Hobbs Act robbery conspiracy (18 U.S.C. § 1951) and brandishing a firearm (18 U.S.C. § 924(c)(1)(A)(ii)).
- The PSR applied a two-level U.S.S.G. § 2B3.1(b)(4)(B) enhancement for "physically restrained," producing a higher Guidelines range; the District Court adopted the enhancement and sentenced Paul to 108 months (below Guideline range).
- The videotape provided undisputed facts about the clerk’s movements; the legal question was whether directing the clerk to move to the register constituted "physically restrained" under the Guidelines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ordering a store clerk at gunpoint to move to the register constitutes "physically restrained" under U.S.S.G. § 2B3.1(b)(4)(B) | Paul: enhancement not applicable because movement was typical of most robberies and not a forcible restraint like being tied or locked up | Government: enhancement applies based on coercion and the clerk being compelled to move at gunpoint | Court: Enhancement does not apply; the clerk was not "physically restrained" as meant by the Guidelines |
Key Cases Cited
- United States v. Gall, 552 U.S. 38 (sentencing begins with correct Guidelines calculation)
- Scott v. Harris, 550 U.S. 372 (videotape can establish undisputed facts)
- United States v. Anglin, 169 F.3d 154 (2d Cir.) (displaying a gun and ordering victims not to move is insufficient for "physical restraint")
- United States v. Garcia, 857 F.3d 708 (5th Cir.) (enhancement inapplicable where victims ordered to get down)
- United States v. Coleman, 664 F.3d 1047 (6th Cir.) (enhancement applies where victim forced to a place for better monitoring)
- United States v. Miera, 539 F.3d 1232 (10th Cir.) (enhancement applies where victims told at gunpoint not to move)