UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID ABRAM ZIESEL, Defendant-Appellant.
No. 20-4240
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
June 29, 2022
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 22a0140p.06
Argued: October 27, 2021
Decided and Filed: June 29, 2022
Before: ROGERS, STRANCH, and DONALD, Circuit Judges.
COUNSEL
ARGUED: Claire R. Cahoon, FEDERAL PUBLIC DEFENDER‘S OFFICE, Toledo, Ohio, for Appellant. Matthew D. Simko, UNITED STATES ATTORNEY‘S OFFICE, Toledo, Ohio, for Appellee. ON
STRANCH, J., delivered the opinion of the court in which DONALD, J., joined. ROGERS, J. (pp. 12–16), delivered a separate dissenting opinion.
OPINION
JANE B. STRANCH, Circuit Judge. David Ziesel pleaded guilty to bank robbery, and was sentenced to 46 months’ imprisonment. In this appeal, Ziesel challenges the district court‘s application of a two-level enhancement for “physical restraint” under
I. BACKGROUND
The facts in this case are undisputed. Ziesel entered a bank wearing a mask and a hooded sweatshirt, approached the tellers, and said “give me all the money you have.” After the tellers emptied their drawers, Ziesel asked if they had a safe behind the counter. The tellers responded that they did not. At some point, “Ziesel told the tellers that ‘no one was going to get hurt here.‘” Before leaving with the money, Ziesel told the tellers to get on the floor. Ziesel did not have a weapon, nor did he imply he had a weapon.1
A federal grand jury indicted Ziesel on one count of bank robbery in violation of
a criminal history category of III, resulted in an imprisonment range of 46 to 57 months. Without the two-level, physical-restraint enhancement, the imprisonment range would have been 37 to 46 months. Ziesel objected to application of the physical-restraint enhancement.
At the sentencing hearing, the district court noted that application of the physical-restraint enhancement was “a close question” but, nevertheless, overruled Ziesel‘s objection and applied the enhancement. The district court reasoned that:
the simple communication “This is a bank robbery” connotes a certain degree of potential harm, whether a weapon is shown or not, and certainly control is
exercised by the robber. . . . And I think it actually involves a degree of movement, when you are standing upright, and then to be told to go into prone position by somebody who appears able to exercise substantial force over you. Whether in fact that turns out to be true or not, I don‘t think it matters.
Sentencing Tr. at 9-10.3 The district court added that Ziesel was not armed, but:
that doesn‘t change the fact that from the standpoint of the victims, they weren‘t about to ask “Show me the gun” before they showed you the money. They believed that you posed a clear and present danger to them. They obeyed your command. I do think that that involves restraint for the reasons I‘ve stated.
Id. at 62-63.
Ziesel requested a downward variance to 37 months’ imprisonment, and the Government requested either an upward variance or a sentence at the top of the applicable Guidelines range. The district court noted that it was not inclined to vary upward, but it did consider a downward variance of 37 months’ imprisonment, as requested by Ziesel. Ultimately, the district court sentenced Ziesel to 46 months’ imprisonment, at the bottom of the Guidelines range as calculated using the physical-restraint enhancement, and it did not make any alternative findings.
Ziesel timely appealed and now challenges the application of the two-level, physical-restraint enhancement. The Government maintains the district court‘s interpretation of the physical-restraint enhancement is correct, but, if it is not, any resulting error is harmless.
II. ANALYSIS
A. Standard of Review
Appellate courts review a district court‘s chosen sentence under the abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). “To determine whether a district court abused its discretion, we look to whether the sentence is reasonable.” United States v. Walters, 775 F.3d 778, 781 (6th Cir. 2015). Sentences are examined for procedural and substantive reasonableness. Id. “Whether the district court properly applied a sentence enhancement under the Guidelines is [ ] a matter of procedural reasonableness.” Id. Whether the undisputed facts of a case “warrant the application of a particular guideline provision” is a question of law that is reviewed de novo. United States v. Snelling, 768 F.3d 509, 512 (6th Cir. 2014) (quoting United States v. Rothwell, 387 F.3d 579, 582 (6th Cir. 2004)). “At sentencing, ‘[t]he government bears the burden to establish enhancement factors, where contested.‘” United States v. Small, 988 F.3d 241, 257 (6th Cir. 2021) (quoting United States v. Silverman, 889 F.2d 1531, 1535 (6th Cir. 1989)).
Where a defendant timely objects to a sentencing error,
B. Physical Restraint Enhancement
Enhancements are a type of specific offense characteristic and are promulgated “for distinct and separate acts of violence in order to impose punishment based on the severity of the defendant‘s conduct.” United States v. Perkins, 89 F.3d 303, 308 (6th Cir. 1996). The subsection of the Guideline at issue here is
(4)(A) If any person was abducted to facilitate commission of the offense or to facilitate escape, increase by 4 levels; or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape, increase by 2 levels.
“Abduction” is the more serious conduct addressed by the enhancement, and it is not at issue in this case. See United States v. Hill, 963 F.3d 528, 530 (6th Cir. 2020) (remand to the district court to impose the two-level “physical restraint” enhancement instead of the four-level “abduction” enhancement because the victims, who were bound, were only moved to a different location within the store).
As we have previously explained: “Although the use of force or fear may be an element of the core offense conduct of robbery, physical restraint is not an element of the offense of robbery. Were it otherwise, the Guidelines would not list physical restraint in
The relevant conduct here involved Ziesel telling the bank employees to get on the ground. Ziesel did not have a gun, neither employee was touched, tied, bound, or locked up, and neither employee was instructed to move to another location. The question here is whether ordering the tellers “to the ground,” without more, is conduct warranting the two-level enhancement. We begin with the plain language of the Guidelines. “Physically restrained” is defined as the forcible restraint of the victim such as by being “tied, bound, or locked up,”
We have, however, previously addressed other conduct constituting “physical restraint” for purposes of
defendant “could better monitor [the employee‘s] activities.” Id. at 1048, 1050. Recently, in United States v. Howell, 17 F.4th 673, 692 (6th Cir. 2021), a bank robber received the enhancement after keeping a teller on the floor at gunpoint while verbally threatening to kill her if the other tellers did not quickly give him the money. In Hill, 963 F.3d at 530, the defendant received the
The district court applied the physical-restraint enhancement to Ziesel, reasoning that “the simple communication ‘This is a bank robbery’ connotes a certain degree of potential harm, whether a weapon is shown or not, and certainly control is exercised by the robber.” Sentencing Tr. at 9-10. But almost all robberies necessarily entail the creation of fear and apprehension that may lead victims to “restrain” their movements in some way. Indeed, it is hard to imagine a circumstance where a bank robbery could take place without the robber communicating his intent to the victims or without engendering “fear and apprehension” to gain compliance. Construing the physical-restraint enhancement in this way would allow it to be applied in nearly all robberies, rendering it meaningless. The Second Circuit has “cautioned against interpreting the words ‘physically restrained’ in such a way that ‘virtually every robbery would be subject to the 2-level enhancement for physical restraint unless it . . . involved a ‘quixotic’ robber who explicitly instructed the victims that they should ‘feel free to move about’ or leave during the robbery‘s commission.‘” United States v. Taylor, 961 F.3d 68, 78 (2d Cir. 2020) (quoting United States v. Anglin, 169 F.3d 154, 165 (2d Cir. 1999)). Likewise, the district court‘s reasoning here improperly collapses the requirements of force, implied or actual, and “physical restraint,” allowing the exception (the enhancement) to swallow the rule (the offense).
Because something more than fear of “potential harm” is necessary, and nearly all “physical restraint” will involve some control over a victim‘s movement, we turn to the specific actions in this case. No weapons, threats, or actual force were used by Ziesel, who ordered the tellers from a standing position to a squatting or kneeling position on the floor in the same location. Under our precedent, Ziesel‘s conduct does not warrant application of the enhancement.
The Government‘s argument does not compel a different outcome. It contends that “it should not matter if a defendant had no object at all, but was nonetheless able to create the same fear in a victim through his conduct that the victim similarly restrains himself or herself.” Appellee‘s Br. at 18. In support of this contention, the Government relies on the Tenth Circuit‘s reasoning in United States v. Rucker, 178 F.3d 1369 (10th Cir. 1999). Rucker presented the question of whether applying the physical-restraint enhancement under
. . . nearly every time one points a gun at a victim during a robbery, the pointing
of the gun physically restrains the victim in some way. But this is not always the case: The robber might point a gun at a victim and tell him to “get out of here.” Such would hardly physically restrain the victim. The converse scenario does not involve the required necessary overlap either: physically restraining a victim does not necessitate pointing a gun.
Rucker, 178 F.3d at 1373. To support its case against Ziesel, however, the Government cites Rucker for the proposition that a defendant‘s use of words only, without implication that the perpetrator has a dangerous weapon and without bodily contact, amounts to physical restraint as it is used in the Guideline. True, a gun is not required: examples of physically restraining someone without pointing a gun are plentiful, including the facts in Rucker where the physical restraint of a victim was “with rope.” Id. at 1373; see also Perkins, 89 F.3d at 305 (noting physical restraint where the defendant “bound and gagged” the victims with duct tape). But neither Rucker nor any of our cases suggest that a mere verbal instruction to get on the
ground—without any change in location, use of actual restraints, or the threat, real or implied, of use of a dangerous weapon—constitutes physical restraint.
Finally, both the district court‘s and the Government‘s arguments improperly emphasize the reaction of the victims. The district court focused on the “standpoint of the victims,” reasoning that restraint was involved in the present case because the victims “believed that [Ziesel] posed a clear and present danger to them. They obeyed [his] command.” Sentencing Tr. at 36-37. The Government‘s argument similarly rests on the “fear and apprehension . . . engender[ed] in the victims” such that they restrained themselves. Appellee‘s Br. at 18. As noted above, “the Sentencing Guidelines list enhancements for distinct and separate acts of violence in order to impose punishment based on the severity of the defendant‘s conduct.” Perkins, 89 F.3d at 308 (emphasis added). As the Seventh Circuit explained, “the victim‘s reaction does not determine whether there is or is not physical restraint.” United States v. Herman, 930 F.3d 872, 876 (7th Cir. 2019).4 The focus of the inquiry is on the
In sum, the facts in this case do not involve “physical restraint” under either the plain language of the Guidelines or our case law. Finding the circumstances in this case to warrant application of the physical-restraint enhancement would improperly merge the offense with the
enhancement. Accordingly, the physical-restraint enhancement does not apply to Ziesel‘s actions.
C. Harmless Error
The Government contends that even if the physical-restraint enhancement does not apply in the present case, “any error was harmless.” As noted above, “[t]here can be no harmless error unless the appellate court can determine from the record that the same sentence would be imposed on remand.” United States v. Gillis, 592 F.3d 696, 699 (6th Cir. 2009). The Government bears the burden of proof and “it must demonstrate ‘to the [c]ourt with certainty that the error at sentencing did not cause the defendant to receive a more severe sentence.‘” Id. (quoting United States v. Lanesky, 494 F.3d 558, 561 (6th Cir. 2007)).
The Government contends that it satisfied its burden by asking the district court “specifically whether the court would have imposed the same 46-month sentence either way, based on Ziesel‘s conduct in this case.” Appellee‘s Br. at 24. It argues that the district court‘s reply that it believed the “sentence was appropriate [and] ‘sufficient but not greater than necessary,‘” establishes that the court “would have imposed the same sentence regardless of the” physical-restraint enhancement‘s application. Id. The relevant exchange is quoted below:
THE COURT: May not be able to appeal it as a practical matter. You should, if it is possible, but if the lower end -- if the high end of the next low guideline range were 46 months, Ms. Cahoon, are you still able to appeal where the sentence might not be changed or would not be changed?
MS. CAHOON: We are still able to appeal, Your Honor, because the sentence would be changed. If the Court did not impose the plus two, that the bottom of the guidelines would have been 37 months.
THE COURT: Okay. Good. Great. Well, then by all means, appeal. Okay? That‘s right.
MR. SIMKO: Your Honor, just for clarification on Ms. Cahoon‘s point there, would the sentence have been 46 months had the Court varied, does the Court think this is an appropriate sentence for the conduct in this case?
THE COURT: I do. Okay? And, yeah, I will conclude with that generic statement “sufficient but not greater than necessary.” I think this is the appropriate sentence.
Sentencing Tr. at 36-37. The Government contends that the district court‘s framing of the question above suggests that Ziesel‘s sentence “might not be changed or would not be changed,” and that other statements by the district court support that interpretation. But key here is that the Government did not explicitly ask the question and the district court did not expressly state that it would impose the same sentence with or without the enhancement.
The Government also argues that “[t]he district court provided a separate, independent
In addition, the Government seeks an inference that the district court‘s choice of sentence imposed was appropriate for Ziesel‘s conduct based on its individualized assessment under the
Additional key factors weigh against finding harmless error here. First, the Supreme Court has noted that “[t]he Guidelines’ central role in sentencing means that an error related to the Guidelines can be particularly serious.” Molina-Martinez, 578 U.S. at 199. “As the Court has recognized, ‘when a Guidelines range moves up or down, offenders’ sentences [tend to] move with it.‘” Id. (quoting Peugh v. United States, 569 U.S. 530, 544 (2013)). Indeed, “[w]hen a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant‘s
ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.”5 Id. at 198. Ziesel‘s case falls precisely within the situation outlined in Molina-Martinez: the district court sentenced Ziesel using an incorrect Guidelines range that was higher than the one it should have used. This fact weighs against a finding of harmless error.
Second, the district court explicitly considered—although ultimately rejected—a downward variance to 37 months. See Sentencing Tr. at 25, 37, 41. This consideration is noteworthy given that a sentence that varies from the applicable Guidelines range requires the district court to provide sufficient additional justification for any variance. Gall, 552 U.S. at 47; see also United States v. Christman, 607 F.3d 1110, 1118 (6th Cir. 2010) (“While the standard of review does not change based on whether a sentence is inside, just outside, or significantly outside the Guidelines range, the greater the district court‘s variance, the more compelling
III. CONCLUSION
We REVERSE the district court‘s application of the physical-restraint enhancement and REMAND for resentencing based on a recalculation of the sentencing range without the enhancement.
DISSENT
ROGERS, Circuit Judge, dissenting. The district court properly applied the two-level
The enhancement applies “if any person was physically restrained.” This language is in the passive voice, but obviously refers to action by the defendant. The defendant, in other words, must have imposed a physical restraint. The modifier “physical” applies to the restraint imposed, not the means used by the defendant to impose the restraint. Ziesel argues that the physical restraint enhancement cannot apply unless the defendant used a tangible object, such as a gun or a zip tie, to impose the restraint on the victims, but this argument conflates the nature of the imposition with the nature of the restraint. Clear analysis (not to mention the clear purpose of the enhancement) requires that we distinguish between physical imposition and physical restraint. The “physical” limitation is plainly on the nature of the victim‘s restraint rather than on the words, methods, or items used by the defendant. This makes perfect sense. Persons who are forced to the ground become physically restrained: it is more difficult for them to move and will take more time to stand up, run, or otherwise react to the situation. It is hard to imagine why else the victims would have been ordered to the ground. Consequently, when Ziesel ordered the victims to the ground and at least one teller responded by crouching to the ground behind an enclosed desk, that teller was physically restrained under the plain meaning of the sentencing enhancement. Indeed, Ziesel‘s counsel agreed at oral argument, in response to a hypothetical question, that the enhancement would apply if for instance a teller had complied with a verbal
order to handcuff himself or herself. This effectively conceded that the focus is on the fact that the victim is placed in a (physically) restrained position, not on the (physical) way in which the robber forced the victim into that position.
First, Ziesel imposed a sufficiently physical restraint by ordering the tellers to the ground, which restricted the victims’ ability to move freely. Nothing in the Sentencing Guidelines commentary suggests that physical restraint is limited to physical contact or physical imprisonment. The relevant commentary does define “physically restrained” as “the forcible restraint of the victim such as by being tied, bound, or locked up.”
Accordingly, we have held that the physical restraint enhancement does not require the use of a tangible item to tie or lock up the victims. In United States v. Coleman, 664 F.3d 1047 (6th Cir. 2012), we held that the physical restraint enhancement was properly applied where the defendant, while brandishing a BB gun that the victim believed to be a real gun, “pointed the pistol at [the victim] and ordered him to come out of his office and sit on the floor in the lobby.” Id. at 1048. We noted that “our reading aligns with those circuits that read the text [of the enhancement] more broadly.” Id. at 1050. The defendant had restrained the victim by “compelling the victim to move from one location to another” and “imposing this restraint on [the victim]‘s movement.” Id. at 1050-51. Coleman focused on the definition of “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.” Id. at 1049 (quotation omitted). Under that definition, Ziesel held back and controlled the activity of the victims by ordering them to the ground behind an enclosed desk, which made it more difficult for them to react or escape. More recently, we affirmed the application of the physical restraint enhancement when the defendant pointed a gun at the victim and “prevented [the victim] from continuing to move about by forcing [the victim] to lie on the floor, and [the defendant] used [the victim]‘s life as leverage against her coworkers.” United States v. Howell, 17 F.4th 673, 692 (6th Cir. 2021).
Second, while it is true that in Coleman and the cases cited above the physical restraint was imposed in part by the defendants’ use of a weapon, that is not a meaningful distinction. The means of imposing the restraint need not be through the use of a weapon—as explained above, the enhancement focuses on the physical position of the victim, not the objects the defendant may use to restrain the victim. For example, in United States v. Victor, the Eleventh Circuit held that the physical restraint enhancement applied even though the defendant did not use a gun or other item to restrain the victim and did not touch the victim. See 719 F.3d at 1290. The court concluded that “by threatening the lobby employee with what the employee believed to be a gun to prevent her from escaping” and by forcing her to walk a short distance, “Victor physically restrained her within the guidelines’ meaning.” Id. The emphasis was thus on the victim‘s physical position and sense of confinement, not on any physical objects used by the defendant. The Third Circuit also held 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.” United States v. Copenhaver, 185 F.3d 178, 183 (3d Cir. 1999). Focusing on the physical position of the victims in this case makes it clear that due to the perceived threat from Ziesel, at least one teller crouched to the ground behind a desk, thus forcing the teller into a confined area in a vulnerable position. That is sufficient to apply the physical restraint enhancement here.
Finally, Ziesel argues that applying the physical restraint enhancement in this case would mean that the enhancement “would apply in most bank robbery cases.” But as discussed, physical restraint refers to the physical position the victim is in, and it is possible for a bank robber to use words or give orders—and even display a weapon—in a way that does not put the victim in a physically vulnerable position. For instance, it would be different if a robber, with or without a gun, ordered a teller to be quiet, or to reveal a safe‘s combination, or to hand over the cash. These circumstances do not amount to physical restraint, unless “physical” is given some questionably broad definition that is not required to apply the restraint here. For example, the Tenth Circuit reasoned that a “robber might point a gun at a victim and tell him to ‘get out of here,‘” but “[s]uch [conduct] would hardly physically retrain the victim.” United States v. Rucker, 178 F.3d 1369, 1373 (10th Cir. 1999). Crouching to the ground behind an enclosed desk, in contrast, is a physically constrained position that would make it more difficult for
victims to see what was transpiring, react
The judgment of the district court should be affirmed.
Notes
(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association . [s]hall be fined under this title or imprisoned not more than twenty years, or both.