UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TRAMAIN HILL, Defendant-Appellant.
No. 19-1003
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
June 25, 2020
20a0190p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:18-cr-00028-1—Gordon J. Quist, District Judge. Argued: December 12, 2019.
COUNSEL
ARGUED: Sean R. Tilton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant. Davin M. Reust, UNITED STATES ATTORNEY‘S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Sean R. Tilton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant. Davin M. Reust, UNITED STATES ATTORNEY‘S OFFICE, Grand Rapids, Michigan, for Appellee.
MURPHY, J., delivered the opinion of the court in which COLE, C.J., joined. SILER, J. (pp. 15–16), delivered a separate dissenting opinion.
MURPHY, Circuit Judge. In the interpretation of a legal text, as in an ordinary conversation, the wаy in
We must apply this interpretive insight to a provision of the U.S. Sentencing Guidelines that has engendered a broad circuit split. A robbery guideline enhances the base offense level by four if a victim “was abducted to facilitate commission of the offense[.]”
I
Around 6:50 p.m. on August 27, 2016, three employees and a customer—the soon-to-be victims of a frightening armed robbery—were going about their business inside a relatively small Universal Wireless store in Coldwater, Michigan. (Universal Wireless is a Sprint retailer.) Two men, their faces obscured, entered. One pointed a semi-automatic weapоn at the victims while the other locked the store‘s front door. The men led the victims from the sales floor to a back breakroom at gunpoint. Inside the back room, they forced the victims to lie face-down on the floor and bound their wrists and ankles with zip ties. The victims immobilized, the robbers looted the store of its cash and cellphones and took the customer‘s purse. They then scrambled out the back door to a waiting getaway car driven by a third robber. All told, the robbers made off with cellphones and cash worth $42,129.44.
Tramain Hill was one of the robbers. He pleaded guilty to Hоbbs Act robbery (and aiding and abetting Hobbs Act robbery) in violation of
II
Hill renews his challenge to the four-level abduction enhancement. We start with our standard of review. The parties do not dispute the historical facts: two armed robbers entered a Universal Wireless store, took four victims from the sales floor to a back room at gunpoint, tied the victims up with zip ties, grabbed cellphones and cash, and exited out the back door. The parties instead dispute the legal significance of these facts: Do they show that the victims were “abducted” within the meaning of
That makes sense. The issue in this case concerns “the application of the guideline to the facts“—that is, a “mixed question of fact and lаw.” United States v. Thomas, 933 F.3d 605, 608 (6th Cir. 2019) (citation omitted). The standard of review for that kind of question depends on the circumstances in which it arises, see U.S. Bank Nat‘l Ass‘n v. Vill. at Lakeridge, LLC, 138 S. Ct. 960, 966–67 (2018), and the circumstances here point to non-deferential review. The issue turns mostly on “the meaning of the words” in a guideline, a classic interpretive question that courts review de novo. United States v. Bolden, 479 F.3d 455, 461 n.1 (6th Cir. 2007); U.S. Bank, 138 S. Ct. at 965. And because the issue arises often in somewhat similar factual settings, non-deferential review will “unify precedent” and ensure that like defendants are treated alike. See Ornelas v. United States, 517 U.S. 690, 697 (1996). We thus review the question de novo.
A
The robbery guideline—§ 2B3.1—contains the enhancement at issue in this case. It states: “(A) If any person wаs abducted to facilitate commission of the offense or to facilitate escape, increase [the base offense level] 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.”
We begin by clarifying the narrow scope of the parties’ debate. While guidelines commentary binds us “only ‘if the guideline which the commentary interprets will bear the construction,‘” United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (per curiam) (citation omitted), neither party challenges the commentary‘s definitions in this case. So we may assume
A “split of authority” has developed over “whether the forced movement of victims from one room or area to another room or area within the same building constitutes an abduction for purposes of
As always, we must start with the text—here, the phrase “different location.” To determine the ordinary meaning of a phrase, “dictionaries are a good place to start.” United States v. Zabawa, 719 F.3d 555, 559 (6th Cir. 2013). And we look to dictionaries that defined the relevant words when the Sentencing Commission initially used them in 1987. See Whitfield v. United States, 574 U.S. 265, 267 (2015). Dictionaries at that time defined “location” to mean, among other things, “a place of settlement, activity, or residence,” The Random House Dictionary of the English Language 1128 (2d ed. 1987), “[t]he fact or condition of occupying a particular place,” 8 The Oxford English Dictionary 1082 (2d ed. 1989), or the “[s]ite or place where something is or may be located,” Black‘s Law Dictionary 951 (6th ed. 1990). And they defined “different” to mean “not identical; separate or distinct.” Random House, supra, at 552; see also 4 Oxford English Dictionary, supra, at 638. A “different location” thus is a separate or distinct place or site.
Truth be told, though, these dictionary definitions do not take us very far. Depending on how the phrase is used, “different location” could mean a site as far away as the moon or as close as a hair‘s breadth. Consider a few examples. When Congress passed a safe harbor clarifying that nothing in Title VII bars employers from using
This case thus epitomizes what one committed textualist has said about statutory interpretation: “In interesting cases, meaning is not ‘plain‘; it must be imputed; and the choice among meanings must have a footing more solid than a dictionary—which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.” Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol‘y 61, 67 (1994). The range of meanings for the phrase “different location” suggests that context, a “primary determinant of meaning,” must play the crucial role. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012). This bedrock principle has especial force for “common words” like location because they are “inordinately sensitive to context.” Smith v. United States, 508 U.S. 223, 245 (1993) (Scalia, J., dissenting); cf. Jennings v. Rodriguez, 138 S. Ct. 830, 845 (2018) (“for“); Nat‘l Ass‘n of Mfrs. v. Dep‘t of Def., 138 S. Ct. 617, 630 (2018) (“under“). So we must examine the whole text and structure to decide how a “normal speaker of English” would understand the words “different location” in the “circumstances in which they were used.” Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 417–18 (1899).
Considering the issue from that perspective, what level of generality best fits the phrase “location” in this spеcific robbery enhancement? The spot at which a robber finds a victim, such that moving to any other spot in a room is to a different location? The room in which the robber finds the victim, such that moving to another room is to a different location? The store in which the robber finds the victim, such that moving in or out of the store is to a different location? Cf. Archuleta, 865 F.3d at 1293 (Seymour, J., concurring in part and dissenting in part). For the following reasons, we conclude that the phrase “different location” in this context generally should refer to a place other than the store being robbed, not to a separate area or spot within that store.
First, we must place § 1B1.1‘s general definition of “abducted” in the specific context of § 2B3.1(b)(4)‘s enhancement. “Location” can mean the “place of . . . [an] activity,”
Second, we must interpret “different location” in a way that best comports with the rest of the commentary‘s “abducted” definition. If we interpret the phrase too narrowly, we risk reading it out of the definition altogether—something we try to avoid. See Me. Cmty. Health Options v. United States, 140 S. Ct. 1308, 1323 (2020); Scalia & Garner, supra, at 174. Even without “different location,” the definition of “abducted” already requires that a victim be forced to “accompany” an offender.
Third, this interpretation comports with the example that the commentary‘s definition identifies as a qualifying “abduction.” After defining “abducted,” the commentary adds: “For example, a bank robber‘s forcing a bank teller from the bank into a getaway car would constitute an abduction.”
Fourth, when construing the words “different location,” we “cannot forget that we ultimately are determining the meaning of the term” abducted in the guideline. Johnson v. United States, 559 U.S. 133, 140 (2010) (citation omitted). The word “abducted” signals that a victim has been taken away. To “abduct” typically means “to carry off or lead away (a person) illegally and in secret or by force,” as in “to kidnap.” Random House, supra, at 3; 1 Oxford English Dictionary, supra, at 19; see also Black‘s Law Dictionary, supra, at 5 (“abduction“). While most people today would not associate the word with the extended movement required for a common-law kidnapping (movement to a different country, 4 William Blackstone, Commentaries on the Laws of England *219), “abduct” still conveys more movement than from a sales floor to a back room. To be sure, some state courts eventually interpreted their kidnapping laws to require only “trivial” movement “from one room to another” within a “place of business“—a development the drafters of the Model Penal Code called an “absurdity.” 2 Model Penal Code and Commentaries § 212.1, cmt. 1, at 212, 223 (Am. Law Inst., Official Draft 1980). Whether or not this trivial movement would satisfy a particular state‘s kidnapping law, we do not think it would have fallen within the usual meaning of the word “abducted.” Cf. 3 Wayne R. LaFave, Substantive Criminal Law § 18.1(b) (3d ed.), Westlaw (database updated Oct. 2019); State v. Salamon, 949 A.2d 1092, 1119–20 (Conn. 2008). As another court said, a normal speaker “would conclude that [the robber] had taken the [victims] hostage during the commission of the . . . robberies, but would not describe those employees as having been abducted or kidnapped.” Whatley, 719 F.3d at 1223. The Sentencing Commission‘s use of the verb “abducted” for this enhancement thus helps clarify what it “had in mind” when its commentary used the phrase “different location” to define that verb. See Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng‘rs, 531 U.S. 159, 172 (2001) (“SWANCC“).
Fifth, the robbery guideline‘s structure confirms this view. The Sentencing Commission established two related enhancements. The one for abducting a victim generates a four-level enhancement; the other for physically restraining a victim generates a two-level enhancement.
All of this said, we add one note of caution. We do not dispute that the phrase “different location” is context-dependent and so we do not foreclose the “case-by-case approach” that other courts have taken to this abduction enhancement—one that examines the specific facts, including the type of building and crime at issue. Whatley, 719 F.3d at 1222–23; Osborne, 514 F.3d at 389–90. But we agree with the Seventh and Eleventh Circuits that the phrase generally will refer to a place separate from the store or bank being robbed. Whatley, 719 F.3d at 1222–23; Eubanks, 593 F.3d at 653–54. And the specific facts of this case call for that rule. The back room of the Universal Wireless store was part of the robbed location; it was not a “different location” relative to the store. So Hill‘s victims were not “abducted” as that term is used in
B
The government defends the district court‘s decision on grounds of both plain meaning and precedent. Its arguments fail to persuade us.
Start with plain meaning. The government wants us to start—and end—with dictionary definitions at the expense of contextual factors. See Archuleta, 865 F.3d at 1287. It notes that a dictionary defines “location” to mean the “particular place or position occupied by a person or thing; precise situation.” Oxford English Dictionary Online (3d ed. Dec. 2015). “Position,” in turn, can mean the “place in which a person, thing, etc., is located or has been put,” and “place” cаn mean a “room” or “available space.” Id. According to the government, these definitions show that “location” has one—and only one—meaning: It refers to the specific spot where a person stands. And the government believes that the victim has moved to a different “location” whenever the victim takes a step. Indeed, the government forthrightly acknowledged at oral argument that its reading would trigger the abduction enhancement if a robber accompanied the victim the few feet separating the counsel tables in our courtroom. Oral Arg. 12:35–12:50.
We disagree. We do not dispute that, when the context indicates, the phrase “location” can mean the place at which a person stands. If your friend calls complaining, “I‘ve waited an hour in this BMV line and I‘m still nearly in the same location,” she would be referencing her precise spot. But, as our examples show, the word location need not always be understood at that level. “That a definition is broad enough to encompass one sense of a word does not establish that the word is ordinarily understood in that sense.” Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 568 (2012). The government‘s view would mean that two workers standing right next to each other on an assembly line were working at “different locations” within the meaning of Title VII‘s safe harbor for different pay standards.
The government‘s exclusive focus on dictionaries leads it to ignore the contextual clues on which we have relied to choose the level of generality for the word “location.” The government, for example, nowhere attempts to justify its rule undеr the ordinary meaning of the word “abducted“—the word actually used in the robbery guideline. Instead, it says that “the commentary already defines ‘abducted‘” and that the “commentary‘s definition is authoritative.” Ape. Br. 17; see Archuleta, 865 F.3d at 1287 n.3. Yet the Supreme Court has repeatedly relied on the ordinary meaning of a statutory word to clarify the meaning of a vague statutory definition of that word. See Bond v. United States, 572 U.S. 844, 861–62 (2014) (“chemical weapon“); Johnson, 559 U.S. at 140 (“violent felony“); SWANCC, 531 U.S. at 172 (“navigable waters“). We should pay special attention to that practice here because the commentary‘s definition of abducted governs only if it comports with the ordinary import of the defined word in the guideline. See Havis, 927 F.3d at 386; see also Kisor v. Wilkie, 139 S. Ct. 2400, 2414–18 (2019).
The government also sees no need to interpret this abduction enhancement in a manner that meshes with its neighbor—the physical-restraint enhancement. It does not dispute that “physical restraints” often will include movement that satisfies its view of the abduction enhancement. Physical-restraint cases fitting this basic fact pattern are not difficult to find. In one, a robber guided a victim to the cash register. United States v. Paul, 904 F.3d 200, 201, 204 (2d Cir. 2018) (refusing to apply physical-restraint enhancement). In others, the robbers took their victims to the bank vault. United States v. Stevens, 580 F.3d 718, 719, 721–22 (8th Cir. 2009) (applying physical-restraint enhancement); United States v. Thompson, 109 F.3d 639, 640–42 (9th Cir. 1997) (same); United States v. Jones, 32 F.3d 1512, 1519 (11th Cir. 1994) (per curiam) (same); see also United States v. Montgomery, 748 F. App‘x 668, 673–74 (6th Cir. 2018) (same). In still another, the robber took thе victims to a restaurant‘s freezer. United States v. Greenstein, 322 F. App‘x 259, 266 (3d Cir. 2009) (same). In all of these cases the government did not even argue for the abduction enhancement, but the defendants’ conduct should have triggered it under the government‘s broad reading in this case. No matter, the government responds, the guidelines are “replete with instances in which more than one enhancement applies,” and courts need only pick the greater enhancement. Ape. Br. 18. This misses the point. The phrase “different location” has an “uncertain reach.” Maracich, 570 U.S. at 65. To decide on its reach, we may look at the аpparent design and structure of these two enhancements as a whole. Id. And we do not think “different location” should be interpreted so broadly as to encompass large swathes of territory that appear reserved for the physical-restraint enhancement. Such a “clash” between provisions should be avoided when possible. Scalia & Garner, supra, at 168.
Turn to precedent. The government concedes that other circuit courts are divided. But it points to several of our own decisions to support its view. See United States v. Kavo, 128 F. App‘x 447 (6th Cir. 2005); United States v. Merriweather, 2000 WL 1290342 (6th Cir. Sept. 8, 2000) (per curiam); United States v. Greenup, 1999 WL 506978 (6th Cir. June 7, 1999); United States v. Williams, 1998 WL 136550 (6th Cir. Mar. 19, 1998); United States v. Sawyer, 1997 WL 608649 (6th Cir. Oct. 1, 1997) (per curiam). Yet none of these nonbinding, unpublished cases involved similar facts—victims being moved within the location being robbed. Three comport with our understanding of the level of generality for “location” because they involved movement between the robbed facility and a different site. See Merriweather, 2000 WL 1290342, at *1–2 (parking lot to bank); Williams, 1998 WL 136550, at *1 (car to bank); Sawyer, 1997 WL 608649, at *1–2 (bank to parking lot). And while the fourth case, Greenup, may be in tension with our holding, the government admits that the court‘s basis for applying the enhancement was “unclear.” Ape. Br. 13 n.1. Finally, the last case the government cites involved a different crime and context—aggravated sexual abuse by force, and movement over separate floors of a home. See Kavo, 128 F. App‘x at 449–52. Under a “case-by-case approach,” Whatley, 719 F.3d at 1222, this context (a rape rather than a robbery, at a home rather than a store) may or may not call for a different understanding of “location.” We need not decide the issue in this distinct robbery case.
We reverse and remand for resentencing using the two-level physical-restraint enhancement, not the four-level abduction enhancement.
DISSENT
SILER, Circuit Judge, dissenting. The majority has presented a very engaging and intellectual analysis of the application of the Sentencing Guidelines in this case. I do not quarrel with the statement of the facts, but I beg to differ on the application of the enhancement when victims were “abducted to facilitate commission of the offense or to facilitate escape.”
A “different location” could mean that in order to enhance under this criteria, the robbers must have had to go through an outside door. However, as the majority indicates in its opening paragraph, to some persons a different location would not refer to a separate building, but to a different area within the same building. This is the interpretation which is most common in the federal courts, and it is one which I would follow. In other words, if there is a forced movement within the same building in order to facilitate the crime, it is an abduction under the Sentencing Guidelines and calls for a four-level enhancement of the sentence. As the majority indicates, the other criteria of the enhancement have been met. The parties agree that Hill and the other robbers moved the victims from a front room to a back room in order to facilitate commission of the offense. The majority recognizes that in unpublished opinions our court has ruled to the contrary, although the facts were not exactly the same and involved other crimes. In particular, I cite United States v. Kavo, 128 F. App‘x 447 (6th Cir. 2005), in which a sex offender moved the victim from the
I respectfully dissent.