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United States v. Bell

United States Court of Appeals, Third Circuit

January 7, 2020


          Argued September 25, 2018

          APPEAL 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 District Judge

          George H. Newman [ARGUED] George H. Newman & Associates Attorney for Appellant

          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 Appellee

          Before: AMBRO, CHAGARES, and GREENAWAY, JR., Circuit Judges.



         Marquise 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.

         I. Background

         On 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.

         During 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."

(App. A50-51.)

         During 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.

         Bell 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 indictments.

         At 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).[1] 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.

         II. Jurisdiction and Standard of Review

         The 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).

         The 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.

         As we 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 findings.

         Despite 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.[2] 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)).

         V. Analysis

         On 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.

         A. Physically restrained

         Consideration 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 "U.S.S.G."].[3]

         Looking 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).

         Since 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.

         Unlike 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.

         We emphasize that courts should balance these factors in deciding whether to impose the enhancement; no single factor is necessarily dispositive.

         1. Use of physical force

         Several 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 164)).

         In 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 ยง 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, ...

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