September 25, 2018
FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA, D.C. Crim. Nos. 2-16-cr-00441-001
& 2-17-cr-00087-001, Honorable Eduardo C. Robreno
H. Newman [ARGUED] George H. Newman & Associates Attorney
William M. McSwain, United States Attorney Robert A. Zauzmer,
Chief of Appeals Bernadette A. McKeon [ARGUED] Yvonne O.
Osirim Office of the United States Attorney Attorneys for
Before: AMBRO, CHAGARES, and GREENAWAY, JR., Circuit Judges.
GREENAWAY, JR., CIRCUIT JUDGE.
Bell challenges two enhancements to his sentence for robbing
a Metro PCS store - one for the use of a dangerous weapon and
the other for physically restraining the victim. For the
reasons discussed below, we will affirm the District
Court's application of the enhancement for use of a
dangerous weapon, reverse its application for physically
restraining the victim, and remand for resentencing.
September 15, 2015, Bell and Samuel Robinson entered a Metro
PCS store located at 4229 North Broad Street, Philadelphia,
Pennsylvania. Both men wore stockings over their faces to
obscure their identities. Bell carried a weapon resembling a
firearm. Upon entering the store, Bell physically confronted
a store employee, by grabbing the employee's neck,
pointing the weapon at his neck, and throwing the employee to
the ground. Bell then began to remove cash from the register.
The employee attempted to stop the theft by grabbing
Bell's arm, causing Bell to strike the employee with the
weapon. The blow caused a piece of the weapon to break off,
at which time the employee realized the firearm was fake. The
firearm Bell carried was, in reality, a plastic gun. The
employee then stood up and attempted to stop the robbery.
There was a struggle during which Bell pushed the employee
away, allowing him and Robinson to flee the store with
approximately $1, 000.00 in cash.
the sentencing hearing, Bell's counsel read a statement
from the employee describing the incident:
"I grabbed his arm. He hit me with the gun. That's
when I knew it was fake. It was plastic. It broke and part of
it fell over here (pointing to the floor) behind the
register. That's when I saw the piece on the floor. I got
up again, to fight him, but he grabbed the money from the
register and ran out the door."
his flight, Bell dropped his hat, which was seized by the
Philadelphia Police and preserved for DNA testing.
Approximately one year later, the police obtained a warrant
for Bell's DNA. When FBI agents, Task Force officers, and
Philadelphia Police Officers went to Bell's residence to
execute the warrant, they found Bell hiding on the roof
outside his bedroom window. Near Bell, the officers saw a
plastic bag, from which a cardboard box marked
"Winchester" protruded. The bag contained multiple
rounds of various types, calibers, and makes of ammunition.
was indicted in two separate one count indictments - one for
being a felon in possession of ammunition in violation of 18
U.S.C. § 922(g) and the second for Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a). He pled guilty to both
sentencing, the District Court, over Bell's counsel's
objections, imposed a two-level enhancement for physical
restraint pursuant to U.S.S.G. § 2B3.1(b)(4)(B) and a
four-level enhancement for use of a dangerous weapon,
pursuant to U.S.S.G. § 2B3.1(b)(2)(D). After a
three-level reduction for acceptance of responsibility, the
District Court concluded that Bell had an offense level of 24
and a criminal history category of IV, resulting in a
sentencing range of 77 to 96 months. After considering the
§ 3553 factors, the Court imposed a sentence of 86
months of incarceration, followed by three years of
supervised release. This timely appeal followed.
Jurisdiction and Standard of Review
District Court had jurisdiction pursuant to 18 U.S.C. §
3231. This Court has jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).
parties disagree as to the appropriate standard of review to
use in this case. Citing no cases, Bell asserts that we
should apply de novo review to his challenges to the
application of the sentencing enhancements. Relying on
United States v. Richards, 674 F.3d 215 (3d Cir.
2012), the government posits that we should review for clear
error. This misconstrues our holding in Richards.
stated in United States v. Grier, 475 F.3d 556, 570
(3d Cir. 2007) (en banc), "this Court will continue to
review factual findings relevant to the Guidelines for clear
error and to exercise plenary review over a district
court's interpretation of the Guidelines." We did
just that in Richards; we were not required to
interpret the Guidelines because the appellant did "not
quarrel with the District Court's articulation of what it
means to be a government official in a high-level
decision-making or sensitive position, for the District Court
used the definition of the enhancement exactly as it is
recited in the Guidelines." Richards, 674 F.3d
at 218. Instead, the appellant "disagree[d] with the
District Court's conclusion that the facts regarding his
employment fit within the Guidelines definition of a
government official in a high-level decision-making or
sensitive position." Id. We, therefore, applied
clear error review to the District Court's factual
the government's assertion that we are currently faced
with a situation similar to that in Richards, we are
not. Bell has not contested the facts of his offense.
Instead, he challenges the District Court's
interpretation and application of two provisions of the
Guidelines. We will review the District Court's
determinations de novo. See United States v. Paul,
904 F.3d 200, 202 (2d Cir. 2018) ("[T]he issue on this
appeal is not the factual question of what happened to the
store employee; it is the legal question whether the physical
restraint enhancement applies to the undisputed facts . . .
."); United States v. Anglin, 169 F.3d 154, 163
(2d Cir. 1999) ("[T]he pertinent facts . . . are not
disputed. . . . The question is whether the physical
restraint enhancement applies to those facts, an issue that
'turns primarily on the legal interpretation of a
guideline term.'" (quoting United States v.
Stroud, 893 F.2d 504, 507 (2d Cir. 1990)).
appeal, Bell raises two challenges to his sentence. The first
- whether he physically restrained the victim - requires us
to review sections 2B3.1(b)(4)(B) and 1B1.1 of the Sentencing
Guidelines in order to discern what conduct the Sentencing
Commission sought to encompass in the definition of
"physically restrained." The second - whether Bell
used a dangerous weapon - presents a less challenging
analysis in light of our clear precedent on this issue.
of the enhancement for physical restraint involves two
sections of the Sentencing Guidelines. Section 2B3.1(b)(4)(B)
provides that "if any person was physically restrained
to facilitate commission of the offense [of robbery] or to
facilitate escape," the sentencing calculation should be
increased by two levels. "Physically restrained" is
defined in the application notes to § 1B1.1 as
"mean[ing] the forcible restraint of the victim such as
by being tied, bound, or locked up." U.S. Sentencing
Guidelines Manual § 1B1.1 cmt. n. 1(K) (U.S. Sentencing
Comm'n 2016) [hereinafter
only at the language used in the definition, it would appear
clear that Bell did not physically restrain the store
employee because he did not tie up, bind, or lock up the
employee. However, we, along with many of our sister
circuits, have held that the three examples provided in the
definition of physically restrained are not an exhaustive
list, but rather only examples of the types of conduct that
fall within the meaning of the term. United States v.
Copenhaver, 185 F.3d 178, 180 (3d Cir. 1999)
("Cases have generally held that 'physical
restraint' is not limited to the examples listed in the
guidelines."). See, e.g., United States v.
Ossai, 485 F.3d 25, 32 (1st Cir. 2007); United
States v. Drew, 200 F.3d 871, 880 (D.C. Cir. 2000);
United States v. Anglin, 169 F.3d 154, 164 (2d Cir.
1999); United States v. Hickman, 151 F.3d 446, 461
(5th Cir. 1998); United States v. Thompson, 109 F.3d
639, 641 (9th Cir. 1997); United States v. Stokley,
881 F.2d 114, 116 (4th Cir. 1989).
our decision in Copenhaver, we have not had the
occasion to speak precedentially on the parameters of what it
means to be physically restrained, as defined in the
Guidelines. Copenhaver involved the defendant,
during the course of a robbery, forcing the victim from one
room into another and then "put[ting] him in the
fireplace and plac[ing] the fire screen across it."
Copenhaver, 185 F.3d at 179 (quoting the appendix).
While we discussed, in dicta, factors other circuits had
considered when imposing the enhancement for physically
restraining a victim, we were not required to adopt any
specific test to be used in interpreting this Guideline since
[w]e need not choose in this case between the position of
[United States v.] Thompson[, 109 F.3d 639
(9th Cir. 1997), ] that forcing some action at the point of a
gun constitutes physical restraint under the Guideline and
that in [United States v.] Anglin[, 169
F.3d 154 (2d Cir. 1999), ] holding to the contrary. Here,
Copenhaver did more than merely order Helwig to stand still,
kneel or lie down. He not only forced him into another office
but put him into the fireplace and placed the fire screen
across it, thereby confining his victim in a manner
comparable to the example given in Anglin of
'locking up' the victim.
Id. at182. We are now faced with a less clear
situation that requires us to determine what factors to
consider when determining if a defendant physically
restrained a victim.
our Court, over the past twenty years, other circuits have
reviewed the meaning and application of the physically
restrained enhancement. Turning to those cases, we discern
five broad factors that the other circuits have used to
evaluate whether the enhancement should be applied and that
we, after consideration, adopt here. Those factors are
1. Use of physical force;
2. Exerting control over the victim;
3. Providing the victim with no alternative but compliance;
4. Focusing on the victim for some period of time; and
5. Placement in a confined space.
emphasize that courts should balance these factors in
deciding whether to impose the enhancement; no single factor
is necessarily dispositive.
Use of physical force
circuits have commented on the relevance of the term
"physical" in the definition of physically
restrained. As the D.C. Circuit succinctly stated,
"[t]he required restraint must, as the language plainly
recites, be physical." United States v. Drew,
200 F.3d 871, 880 (D.C. Cir. 2000). That Court further
observed that "the phrase 'being tied, bound, or
locked up' indicates that physical restraint requires the
defendant either to restrain the victim through bodily
contact or to confine the victim in some way."
Id. In reaching this conclusion, the D.C. Circuit
relied upon the Second Circuit's reasoning in
Anglin. Id. (noting that "[t]he most
pertinent definition of 'physical' is 'of the
body as opposed to the mind, as, physical
exercise.'" (quoting Anglin, 169 F.3d at
Anglin, the Second Circuit relied on "the plain
meaning of words" to support its conclusion that the
physical restraint enhancement requires the use of physical
force. Anglin, 169 F.3d at 164. Observing that
"'physical' is an adjective which modifies (and
hence limits) the noun 'restraint, '" the Second
Circuit reasoned that "if § 2B3.1(b)(4)(B) said
only that the enhancement would apply 'if any person was
restrained,' the courts would become involved in mental,
moral, philosophical, ...