United States v. Marquise Bell

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No: 17-3792

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UNITED STATES OF AMERICA

v.

MARQUISE BELL,

Appellant

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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)

District Judge: Honorable Eduardo C. Robreno

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Argued September 25, 2018

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

Circuit Judges.

(Opinion Filed: January 7, 2020)

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OPINION

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George H. Newman [ARGUED]

George H. Newman & Associates

100 South Broad Street

Suite 2126

Philadelphia, PA 19110

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

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Attorneys for Appellee

GREENAWAY, JR., Circuit Judge.

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

2

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.”

3

(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

1

Counsel also sought to have the offenses grouped in

order to eliminate an additional one level enhancement. In

addition, counsel sought a reduction for Bell’s minor role in

the offense. The District Court rejected both of these

arguments. Bell does not challenge either of those decisions

on appeal.

4

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

5

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

2

In concluding that we should review the District

Court’s decision for clear error, our dissenting colleague

focuses on the factual nature of the application of the

Guideline, but fails to acknowledge that we have not, prior to

today’s decision, provided a comprehensive interpretation of

the physical restraint enhancement that a district court could

then apply. The fatal flaw in the dissent’s interpretation of

Buford v. United States, 532 U.S. 59 (2001), emanates from a

lack of appreciation for the distinction the Supreme Court is

drawing. Here, as recognized in Buford, we are considering “a

generally recurring, purely legal matter, such as interpreting a

set of legal words, say, those of an individual guideline, in

order to determine their basic intent.” Id. at 65. We are not

addressing an issue that “is bounded by[ ] case-specific

detailed factual circumstances [where] the fact-bound nature of

the decision limits the value of appellate court precedent,

which may provide only minimal help when other courts

consider other procedural circumstances, other state systems,

and other crimes.” Id.at 65-66. Just last year, we, as an en

banc court, applied these principles when we exercised plenary

review over the interpretation of a specific guideline. United

States v. Douglas, 885 F.3d 124, 129 (3d Cir. 2018) (en banc).

We are now interpreting the meaning of sections

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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

2B3.1(b)(4)(B) and 1B1.1, before applying that meaning to the

present case.

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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.

3

At the time of Bell’s sentencing in 2017, the term

“physically restrained” was defined in Application Note 1(K)

of the U.S. Sentencing Guidelines. As a result of revisions

made to the U.S. Sentencing Guidelines in 2018, the definition

of “physically restrained” now appears in Application Note

1(L). This change does not affect our case. See Dorsey v.

United States, 567 U.S. 260, 275 (2012) (“The Sentencing

Commission has . . . instructed sentencing judges to ‘use the

Guidelines Manual in effect on the date that the defendant is

sentenced,’ regardless of when the defendant committed the

offense, unless doing so ‘would violate the ex post facto

clause.’” (quoting U.S.S.G. § 1B1.11)).

8

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.

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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

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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 §

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, even theological

considerations, in addition to physical ones. No, the restraint

must be ‘physical.’” Id.

The Fifth Circuit has adopted the Second Circuit’s

reasoning – it too requires the use of physical, rather than

mental or moral, force in order to apply the enhancement.

United States v. Garcia, 857 F.3d 708, 713 (5th Cir. 2017).

There, the Fifth Circuit concluded that although “we have little

doubt that at least one of the employees felt restrained when

the barrel of a gun touched the back of his neck, . . . this

employee and his coworkers were not subjected to the type of

physical restraint that victims experience when they are tied,

bound, or locked up.” Id. (emphasis omitted).

Recently, the Seventh Circuit addressed the need “for

something that tells us on which side of the line that divides

psychological coercion from physical restraint a given case

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falls.” United States v. Herman, 930 F.3d 872, 875 (7th Cir.

2019). Specifically, that Court sought to resolve “the question

whether the physical-restraint enhancement can be applied to

situations in which an armed defendant simply orders his

victims not to move and does not otherwise immobilize them

through measures such as those outlined in the commentary to

U.S.S.G. § 1B1.1.” Id. at 874. In that context – where a

defendant points a gun at a victim – the Seventh Circuit

observed that

the victim’s reaction does not determine whether

there is or is not physical restraint. If the

defendant waves a gun around and barks out a

command to stay still and the victim obeys, it

makes no sense to say that the recipient of the

order was physically restrained. Whatever

restraint occurred came about from the way the

victim decided to respond to the order. She

might obey; she might ignore it; or she might

attempt to flee. Her physical response to the

defendant’s attempt to coerce, however, is not

something that logically belongs within the

scope of the physical-restraint guideline.

Id. at 876. Ultimately, the Court “align[ed] [itself] with the

circuits that have found that more than pointing a gun at

someone and ordering that person not to move is necessary for

the application of U.S.S.G. § 2B3.1(b)(4)(B).” Id. at 877.

We discern a common thread in these cases regarding

the meaning of “physical” in the definition of physical

restraint: the need for the restraint to be something more than

a psychological restraint. We agree that we should consider

the plain meaning of the word “physical” in the definition set

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forth in § 1B1.1, and we therefore adopt the requirement that

the restraint involve some physical aspect.

2. Exerting control over the victim

Continuing our focus on the plain language of the

Guidelines, we turn to the second word in the phrase:

“restrained.” Anglin, once again, provides us with guidance on

this point. Citing Webster’s Deluxe Unabridged Dictionary,

the Second Circuit examined the definition of “the verb

‘restrain,’ whose first definition is ‘to hold back; to check; to

hold from action, proceeding, or advancing, either by physical

or moral force, or by any interposing obstacle.’” Anglin, 169

F.3d at 164 (emphasis omitted) (quoting Webster’s Deluxe

Unabridged Dictionary (1979) at 1544). Similarly, the Ninth

Circuit has turned to the dictionary in an effort to discern the

meaning of the enhancement. United States v. Foppe, 993 F.2d

1444, 1452 (9th Cir. 1993) (“The dictionary defines ‘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.” (citing Webster’s Third New International

Dictionary 1937 (1986))). The Fourth Circuit has also

recognized that the enhancement requires some form of

restraint, stating “[t]he intended scope of the USSG

§ 2B3.1(b)(4)(B) enhancement is to punish a defendant who

deprives a person of his physical movement.” United States v.

Dimache, 665 F.3d 603, 609 (4th Cir. 2011).

We agree that, in order to impose the enhancement, a

defendant should be deemed to have engaged in actions that

restrict a victim’s freedom of movement in some manner.

Requiring a restriction of a victim’s freedom of movement is

consistent not only with the dictionary definition of restraint,

but also with the examples of “being tied, bound or locked up”

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provided in the Guidelines. All three of those examples restrict

a victim’s freedom of movement. While tying and binding a

victim require touching the person, it is possible to lock

someone up without touching them. In addition, a defendant

could direct one victim to tie up another victim, an action that

would not require the defendant to touch the victim, but would

clearly fall within the specific examples set forth in the

Guidelines. We therefore reiterate our statement in

Copenhaver that “[n]o actual touching is required to effect

physical restraint.” 185 F.3d at 182.

3. Providing the victim with no alternative but

compliance

As we observed in Copenhaver, application of the

enhancement for “physically restrained” is appropriate “when

the defendant ‘creates circumstances allowing the persons no

alternative but compliance.’” Id. at 180 (quoting United States

v. Kirtley, 986 F.2d 285, 286 (8th Cir. 1993)). The Second,

Seventh,4 Eighth, and Eleventh Circuits have all similarly

recognized that providing a victim with no alternative but

4

Earlier this year, the Seventh Circuit noted that some

of its cases had extended the concept of “no alternative to

compliance” from physical into psychological restraints.

Herman, 930 F.3d at 876-77. In light of that concern, the Court

noted that “[t]o the extent that those earlier cases allow for the

application of the ‘physical restraint’ enhancement based

solely on psychological coercion—including the coercion of

being held at gun point—we hereby disapprove those

holdings.” Id. at 877.

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compliance plays a role in determining whether to apply the

enhancement.

For example, in United States v. Rosario, 7 F.3d 319 (2d

Cir. 1993), the Second Circuit affirmed application of the

enhancement because the defendant, “[b]y standing on his

victim’s throat while committing the robbery, . . . facilitated

the commission of the offense in that the victim ‘could do

nothing about [his] situation because of the physical restraint.’”

7 F.3d at 321 (quoting United States v. Doubet, 969 F.2d 341,

347 (7th Cir. 1992) abrogated on other grounds by United

States v. Dunnigan, 507 U.S. 87(1993)).

In United States v. Victor, the Eleventh Circuit noted

that the enhancement is applicable when the defendant’s

conduct “ensure[s] the victims’ compliance and effectively

prevent[s] them from leaving.” 719 F.3d 1288, 1290 (11th Cir.

2013) (quoting United States v. Jones, 32 F.3d 1512, 1518–19

(11th Cir. 1994)). The court in Victor concluded that by

threatening the victim with what the victim believed was a gun

and thereby preventing the victim from escaping, the defendant

physically restrained her within the meaning of the

enhancement. Id. (mentioning that the victim was “forced to

comply”).

In Kirtley, the Eighth Circuit concluded that although

the defendant himself did not bind the victims, he ordered them

to bind themselves at gun point and therefore, because the

victims had “no alternative but to obey,” the defendant

physically restrained them. 986 F.2d at 286 (“a defendant

physically restrains persons if the defendant creates

circumstances allowing the persons no alternative but

compliance.”). Similarly, in United States v. Lee, the Eighth

Circuit affirmed application of the sentencing enhancement on

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the ground that the defendant physically restrained the victim

by striking her with a gun, thereby “creat[ing] circumstances

allowing the [woman] no alternative but compliance.” 570

F.3d 979, 983 (8th Cir. 2009) (quoting Kirtley, 986 F.2d at 286)

(alteration in original); see also United States v. Schau, 1 F.3d

729, 730 (8th Cir. 1993) (concluding that application of the

enhancement was warranted where the defendant ordered the

victims into an unlocked vault from which they could easily

have freed themselves on the ground that the victims were

forced to comply).

We agree that, in order to impose the enhancement for

physical restraint, a defendant’s actions should leave a victim

with no alternative but compliance.5 While we commented on

this factor in dicta in Copenhaver, we now formally adopt it as

a factor to consider when imposing the enhancement.

5

In Herman, the Seventh Circuit observed that “[t]he

phrase ‘operation of circumstances that permit no alternative

to compliance’ could be understood to cover purely

psychological coercion.” Herman, 930 F.3d at 876. As we

have already stated, we believe that physical, not

psychological, restraint is required in order to impose the

enhancement. Our inclusion of a victim having no alternative

but compliance as a factor to consider in the physical restraint

analysis does not erase the need for the restraint to be physical,

nor does it open the door for psychological restraints to be

considered.

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4. Focusing on the victim for some period of time

The Fourth and Tenth Circuits have recognized a need

to consider the duration of the restraint in imposing the

enhancement. The Fourth Circuit distinguished between

situations where the victims were “confined to a room for some

time” or “held and threatened for a long enough period to

accomplish the cash withdrawal,” and the brief amount of time

the defendant held his victim during the stabbing at issue in the

case before it. United States v. Mikalajunas, 936 F.2d 153, 156

(4th Cir. 1991). The Court concluded that “the examples of

physical restraint in the guidelines, while not all inclusive,

imply that the guidelines intend an enhancement for something

other than a brief holding as part of a stabbing.” Id. (emphasis

added). Similarly, the Tenth Circuit concluded that “in

determining whether the physical restraint enhancement was

properly applied we should examine the nature and duration of

the restraint.” United States v. Khleang, 3 F. App’x 672, 675

(10th Cir. 2001).6

The consideration of duration of the physical restraint

echoes the requirement for “sustained focus on the restrained

person that lasts long enough for the robber to direct the victim

into a room or order the victim to walk somewhere” identified

by the Ninth Circuit. United States v. Parker, 241 F.3d 1114,

1118 (9th Cir. 2001). The Court further opined that “[i]t is

therefore likely that Congress meant for something more than

briefly pointing a gun at a victim and commanding her once to

get down to constitute physical restraint, given that nearly all

6

The Tenth Circuit allows citation to unpublished

opinions as persuasive, but not precedential, authority. 10th

Cir. R. 32.1.

17

armed bank robberies will presumably involve such acts.” Id.

at 1118–19; see also United States v. Albritton, 622 F.3d 1104,

1107–08 (9th Cir. 2010) (concluding that the sustained focus

requirement was met where the defendant directed the victim

around the premises and followed right behind her with a gun

in his hand).

We note that the Sixth Circuit, in United States v.

Coleman, rejected the “sustained focus” standard that was

articulated by the Ninth Circuit in Parker. 664 F.3d 1047, 1050

(6th Cir. 2012) (“No other circuit has adopted Parker’s view,

and our reading aligns with those circuits that read the text

more broadly.”). However, the Sixth Circuit noted that even if

it did adopt Parker’s “sustained focus” requirement, the

defendant’s conduct would still warrant imposition of the

enhancement because, by forcing the victim to go to a different

place and stay there, the defendant’s focus lasted long enough

to satisfy Parker’s sustained focus standard. Id. at 1050–51.

We agree with those courts that have identified a

durational requirement in order to impose the enhancement.

As the Fourth Circuit aptly noted, all of the examples of

physical restraint listed in U.S.S.G. § 1B1.1 – being tied,

bound, or locked up – imply more than a momentary restraint.

As such, we shall include duration of the restraint as a factor in

our analysis determining application of the enhancement.7

7

Our dissenting colleague believes that “the physical

restraint need only last long enough ‘to facilitate the

commission of the offense or facilitate escape.’” Dissent at 11

(quoting U.S.S.G. § 2B3.1(b)(4)(B)). He finds that the few

seconds the employee was on the ground facilitated the

commission of the robbery because “Bell was able to grab

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5. Placement in a confined space

In Copenhaver, we examined this concept and

concluded 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.” 185 F.3d at 183. The inclusion of this factor

is helpful to our jurisprudence. We include it here to formalize

its relevance in determining the appropriate application of the

enhancement.

In sum, we conclude that, in order to impose the

enhancement for physical restraint, a district court should

determine if the defendant’s actions involved the use of

physical force that limited the victim’s freedom of movement,

money out of the cash register after shoving the employee to

the ground.” Id. We simply cannot agree that the few seconds

during which the employee was on the floor allowed Bell to

commit the robbery in the same way being tied, bound, or

locked up would. The examples provided in the Guidelines

imply the restraint has to last for some period of time greater

than a few seconds.

If we were to use the Dissent’s standard of the restraint

lasting only long enough to facilitate the commission of the

offense or facilitate escape, then we would be compelled to

impose the enhancement based on Bell pushing the employee

away during their struggle since that push was physical and it

allowed Bell to escape. We simply cannot agree that such a

brief encounter is what the Guidelines contemplate.

19

with a sustained focus on the victim for some period of time

which provided the victim with no alternative but compliance.

No single factor is dispositive nor does any factor carry more

weight than any other factor; rather, district courts should

balance all of these factors. Further, as stated in Section

2B3.1(b)(4)(B), the restraint must be imposed “to facilitate

commission of the offense [of robbery] or to facilitate escape.”

The Parties’ Arguments

With these factors in mind, we turn to the parties’

arguments.

Relying on Anglin and Rosario, Bell argues that “more

than a mere threat is required to establish physical restraint.”

Appellant’s Br. 10. He asserts, in conclusory fashion, that

“pushing someone to the floor, and threatening them with what

apparently is a toy gun is not inherently ‘physical restraint.’”

Appellant’s Br. 12. Bell, in his reply brief, posits that if the

enhancement is applied here, “then arguably all robberies

justify the 2-level enhancement.” Reply Br. 1.

On the other hand, the government engages in a

thorough discussion of the cases interpreting physical restraint,

concluding that “[h]olding the weapon to the victim’s neck and

throwing him to the floor achieved the same objective as

various other forms of physical restraint – namely, it confined

the victim to the floor, permitting the defendant to access the

cash register and steal cash.” Appellee’s Br. 22. The

government notes that Bell’s conduct encompassed more than

simply pointing a gun at a victim since “Bell used direct

physical contact to put the victim on the floor and attempt to

confine him to that space.” Appellee’s Br. 23. The

government also emphasizes that Bell “did not simply brandish

20

the fake gun, but placed the gun to the victim’s neck and threw

him on the ground, and then struck the victim with the gun in

an effort to keep the victim from intervening.” Id. Analogizing

to the fact in Copenhaver that the fire screen placed across the

fireplace was removable, the government claims that the fact

“the victim persisted in his efforts to thwart the robbery once

he realized the firearm was fake is of no moment.” Id. Rather,

the important fact, in the government’s view, “was the act of

forcing the victim to the ground and attempting to hold him

there.” Id.

Despite the government’s efforts to demonstrate Bell

physically restrained his victim, we disagree. While grabbing

the victim by the neck and forcing him to the floor satisfies the

requirement that the force be physical, we cannot say that the

victim was left with no alternative but compliance (a point the

government never addresses) since the victim twice attempted

to thwart the robbery.8 Further, the physical restraint was quite

8

While the Dissent observes “that the focus is ‘on the

action of the defendant, not on the reaction of the victim,’”

Dissent at 10 (quoting Herman, 930 F.3d at 876), we are not

focusing on the employee’s reaction. Rather, we are

considering the result of Bell’s action of grabbing the

employee’s neck and shoving him to the floor. Since the

employee was clearly able to move, as evidenced by his

attempt to thwart the robbery, we cannot say he was restrained.

Further, in commenting that “the enhancement aims to punish

the act of physical restraint, successful or not,” Dissent at 9, the

Dissent misstates our precedent in Copenhaver. Nowhere in

Copenhaver do we state that only an attempt at physically

restraining a victim will suffice to impose the enhancement,

nor do the Guidelines indicate that attempted restraint is a basis

21

limited in time. It could not have taken more than a few

seconds for Bell to grab the victim’s neck and shove him to the

floor. Thus, there was no sustained focus on the victim.

Instead, based on the victim’s description of the incident, the

entire interaction between him and Bell seems to have taken

only seconds from start to finish. Looking at the totality of the

circumstances, we cannot conclude that Bell physically

restrained his victim sufficiently to invoke application of the

enhancement. If we apply the enhancement here, then any

crime that involves a chance encounter with a victim with any

physical dimension would require application of the

enhancement.

B. Use of a dangerous weapon

Bell argues that he “brandished,” rather than “otherwise used”

a dangerous weapon under Application Notes 1(C) and 1(I) to

U.S.S.G. § 1B1.1, and that he therefore should not be subject

to the four-level use of a dangerous weapon enhancement of

U.S.S.G. § 2B3.1(b)(2)(D).

The Sentencing Guidelines define the above terms as follows:

“Brandished” with reference to a dangerous

weapon (including a firearm) means that all or

part of the weapon was displayed, or the

presence of the weapon was otherwise made

for imposing the enhancement. In Copenhaver, we

acknowledged, based on the flimsy nature of the fireplace

screen, that a barrier enclosing a victim could be “actual or

threatened,” 185 F.3d at 183, but we did not extend that

concept to conclude the physical restraint need not succeed.

22

known to another person, in order to intimidate

that person, regardless of whether the weapon

was directly visible to that person. Accordingly,

although the dangerous weapon does not have to

be directly visible, the weapon must be present.

“Otherwise used” with reference to a dangerous

weapon (including a firearm) means that the

conduct did not amount to the discharge of a

firearm but was more than brandishing,

displaying, or possessing a firearm or other

dangerous weapon.

U.S.S.G. § 1B1.1, cmt. 1(C) & 1(I).

We established a distinction between brandishing and

otherwise using a weapon in United States v. Johnson, 199

F.3d 123, 127 (3d Cir. 1999) (quoting United States v.

LaFortune, 192 F.3d 157, 161-62 (1st Cir. 1999) (alterations

in original)):

[A] person may “brandish” a weapon to “advise”

those concerned that he possesses the general

ability to do violence, and that violence is

imminently or immediately available . . . .

Altering this general display of weaponry by [for

instance] specifically leveling a cocked firearm

at the head or body of a bank teller or customer,

ordering them to move or be quiet according to

one’s direction, is a cessation of “brandishing”

and the commencement of “otherwise used.”

23

Bell pointed a weapon at the store employee’s neck, ordered

him to the ground, and then struck him with the weapon.

(P.S.R. ¶ 9.) This behavior clearly goes beyond the parameters

we set in Johnson for determining the limits of brandishing a

weapon. 199 F.3d at 127.

Furthermore, in United States v. Orr, 312 F.3d 141, 145

(3d Cir. 2002), we stated that “[n]either the guidelines nor the

caselaw requires infliction of the violent physical contact . . .

or a verbalized threat to harm the victim in order to constitute

‘otherwise used.’” We held in Orr that “pointing a gun at the

head of the assistant manager and ordering her to empty money

into a garbage bag was a ‘specific threat’ directed at her and

was precisely the type of conduct which satisfies the ‘otherwise

used’ requirement.” Id. If “otherwise using” a weapon does

not require even physical contact or a specific verbal threat of

harm, it does not follow that actually striking someone with a

weapon would not constitute use.

Bell argues that his actions do not constitute otherwise

using a firearm under Johnson because the firearm he used was

fake. This argument is inapposite. The Sentencing Guidelines

allow for a four-level increase if a dangerous weapon was

otherwise used. U.S.S.G. § 2B3.1(b)(2)(D). The Guidelines

then define an object as a dangerous weapon if it is

(i) an instrument capable of inflicting death or

serious bodily injury; or (ii) an object that is not

an instrument capable of inflicting death or

serious bodily injury but (I) closely resembles

such an instrument; or (II) the defendant used the

object in a manner that created the impression

that the object was such an instrument (e.g.[,] a

24

defendant wrapped a hand in a towel during a

bank robbery to create the appearance of a gun).

U.S.S.G. § 1B1.1 cmt. n.1(D). In Orr, we held that this

definition applies to § 2B3.1(b)(2)(D): “Application Note 1(d)

of § 1B1.1 clearly instructs that objects that appear to be

dangerous weapons shall be considered dangerous weapons for

purposes of § 2B3.1.” 312 F.3d at 144.

Bell carried a toy gun, which he pointed at the victim’s

neck. Bell then forced the employee to the floor and ultimately

struck him with the weapon. The victim did not realize that the

firearm was fake until after he was struck with it. These factors

indicate that Bell’s actions meet our standards for otherwise

using a dangerous weapon.

25

VI. Conclusion

In sum, we will affirm the District Court’s imposition

of the enhancement for otherwise using a dangerous weapon,

reverse the imposition of the enhancement for physically

restraining the victim, and remand for resentencing, consistent

with this opinion.

26

United States v. Bell

No. 17-3792

CHAGARES, Circuit Judge, concurring in part and dissenting

in part.

I write separately because I believe that the proper

standard of review regarding application of the two United

States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”)

enhancements at issue is clear error, not de novo, as my learned

colleagues hold. Further, although I ultimately agree with the

majority regarding the application of the enhancement for use

of a dangerous weapon, U.S.S.G. § 2B3.1(b)(2)(D), I disagree

with its disposition of Bell’s appeal on the physical restraint

enhancement, U.S.S.G. § 2B3.1(b)(4)(B).

I.

In United States v. Grier, 475 F.3d 556 (3d Cir. 2007),

our en banc Court held that we “review factual findings

relevant to the Guidelines for clear error and . . . exercise

plenary review over a district court’s interpretation of the

Guidelines.” Id. at 570. But Bell does not challenge the

sentencing court’s factual findings or its interpretation of the

Guidelines. He challenges instead its determination that two

of the Guidelines enhancements apply to his case. And Grier

did not provide the standard pertinent to reviewing the

application of an enhancement.

Bell contends that de novo review is appropriate, while

the Government contends that we should review for clear error,

citing our decision in United States v. Richards, 674 F.3d 215

(3d Cir. 2012). My colleagues quickly distinguish Richards,

the holding of which they believe the Government has

misconstrued. I disagree with the majority’s conclusion.

Before delving into a discussion of Richards, I address

two notable authorities cited in that opinion. First, we cited 18

U.S.C. § 3742(e), which sets forth principles to be applied by

courts of appeals in reviewing sentences. Richards, 674 F.3d

at 219 n.2. The statute provides that courts of appeals “shall

give due deference to the district court’s application of the

guidelines to the facts.” § 3742(e).

Second, we cited the Supreme Court’s unanimous

decision in Buford v. United States, 532 U.S. 59 (2001), which

in turn, relied upon § 3742(e). Richards, 674 F.3d at 219–20

& n.2. That case involved review of whether Buford’s prior

convictions were “related” under the Guidelines and whether

the Court of Appeals for the Seventh Circuit erred in reviewing

a district court’s sentence under a deferential clear error

standard of review. Buford, 532 U.S. at 60–61; see also United

States v. Buford, 201 F.3d 937, 942 (7th Cir. 2000), aff’d, 532

U.S. 59 (2001). Acknowledging the command of § 3742(e),

the Supreme Court framed the question as “what kind of

‘deference’ is ‘due’” to district courts applying the Guidelines

to facts. 532 U.S. at 63. The Court noted that the answer to

that question “depends on the nature of the question

presented.” Id. (quoting Koon v. United States, 518 U.S. 81,

98 (1996)). It distinguished between “a generally recurring,

purely legal matter, such as interpreting a set of legal words . .

. readily resolved by reference to general legal principles and

standards alone,” and a question that “grows out of, and is

bounded by, case-specific detailed factual circumstances.” Id.

at 65. The Court held that the latter type of question — one of

a “fact-bound nature” — required deference when reviewing

2

the district court’s application of a Guideline. Id. at 66.

Deferential review of a fact-bound application by a district

court was appropriate, the Court reasoned, because of the

“institutional advantages enjoyed by the district court,” id. at

64, including “the comparatively greater expertise of the

District Court,” id. at 66, resulting from the volume of

sentencings trial judges conduct. In addition, the Court

reasoned that “the fact-bound nature of the decision limits the

value of appellate court precedent, which may provide only

minimal help when other courts consider other . . .

circumstances.” Id. at 65–66. The Court concluded that the

question before it was fact bound and that “the appellate court

was right to review this trial court decision deferentially rather

than de novo.” Id. at 64, 66.1

In Richards, we were asked to review an application of

U.S.S.G. § 2C1.2(b)(3), an enhancement that increases an

offense level when the crime involves a “public official in a

high-level decision-making or sensitive position.” 674 F.3d at

217 (quoting U.S.S.G. § 2C1.2(b)(3)). The defendant argued

that application of the enhancement necessarily “involve[d] an

interpretation of the Sentencing Guidelines,” warranting de

1

Even before the Supreme Court’s decision in Buford,

we held in United States v. Ortiz that where application of a

Guideline was “essentially factual,” we would employ a clearly

erroneous standard of review. 878 F.2d 125, 126 (3d Cir.

1989) (quoting United States v. McConney, 728 F.2d 1195,

1202 (9th Cir. 1984) (en banc)). In Ortiz, “we conclude[d] that

the question of a defendant’s aggravating role . . . is ‘essentially

factual’” and determined that we would “reverse the district

court in th[at] case only if its conclusion [were] clearly

erroneous.” Id. at 127.

3

novo review. Id. at 218. We determined instead — relying

upon Buford — that clear error review was appropriate.2 We

reached this determination because Richards was not

challenging “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,” but

rather its “conclusion that the facts . . . fit within the Guidelines

definition of a government official in a high-level decision-

making or sensitive position.” Id. We then held that when

“sentencing adjustments require a district court to closely

examine a set of facts and determine whether they fit within

the definition of the adjustment before deciding whether to

apply the adjustment, we should review that decision for clear

error only.” Id. at 222. For instance, we concluded, “where,

as here, the particular Guideline in question sets forth a

predominantly fact-driven test,” we review for clear error. Id.

at 223; see also United States v. Huynh, 884 F.3d 160, 165 (3d

Cir. 2018) (holding that “[w]e . . . review the District Court’s

application of the relocation enhancement for clear error”

because the question “is, at bottom, ‘a strictly factual test, such

that once the test is stated[,] no legal reasoning is necessary to

the resolution of the issue’” (alteration in original) (quoting

Richards, 674 F.3d at 221)).

Here, we too “consider a district court’s application of

the Guidelines to a specific set of facts.” Richards, 674 F.3d at

2

We recognized in Richards that although the Supreme

Court excised certain parts of § 3742(e) in United States v.

Booker, 543 U.S. 220 (2005), that statute “still call[s] for ‘due

deference’ to be given to a district court’s application of the

Guidelines to the facts.” Richards, 674 F.3d at 219 n.2.

4

219. Because application of either enhancement here

“require[d] [the] district court to closely examine” the facts of

Bell’s case “and determine whether they fit within the

definition[s] of the adjustment[s] before deciding . . . to apply

the[m], we should review th[ose] decision[s] for clear error

only.” Id. at 222. Indeed, the majority’s recitation of a “fact-

driven test” to determine whether the physical restraint

enhancement applies compels clear error review. Id. at 223.

My colleagues distinguish Richards by noting that “Bell

has not contested the facts of his offense” and that Bell is only

challenging the “interpretation and application of two

provisions of the Guidelines.” Maj. Op. 6. But Richards did

not contest the facts of his offense, either — instead, he, like

Bell, challenged the district court’s application or fit of the

enhancement to those undisputed facts. Richards, 674 F.3d at

218; see also United States v. Fish, 731 F.3d 277, 279 (3d Cir.

2013) (determining that clear error was the proper standard to

review application of U.S.S.G. § 2S1.1(b)(3) where “there

[wa]s no dispute over the factual determinations but the issue

is whether the agreed-upon set of facts fit within the

enhancement requirements”). Further, Buford also argued that

no deference was appropriate where the district court was

simply “applying a Sentencing Guidelines term to undisputed

facts.” Buford, 532 U.S. at 64. The Supreme Court did not

credit this argument and held, as described above, that it was

the “fact-bound nature” of the district court’s application of a

Guideline that compelled deferential review of the application.

Id. at 66. As a result, whether the facts are disputed or

undisputed is immaterial to the type of deference we give to a

district court’s application of a Guidelines enhancement.

5

I respectfully dissent because I believe that the District

Court’s application of the enhancements in this case should be

reviewed under the clearly erroneous standard.

II.

Applying the clear error standard of review that I

believe is appropriate in this matter, I now consider Bell’s

challenges to the application of sections 2B3.1(b)(2)(D) and

2B3.1(b)(4)(B) of the Guidelines.

A.

The majority notes that this Court has not considered

the parameters of “physical restraint” in a precedential opinion

since United States v. Copenhaver, 185 F.3d 178 (3d Cir.

1999). In that case, we declined “to adopt any specific test to

be used in interpreting” U.S.S.G. § 2B3.1(b)(4)(B), as the facts

of that case supported application of the enhancement in any

event. Maj. Op. 9.

I do not necessarily fault my colleagues for desiring to

set forth a clearer standard regarding the application of

U.S.S.G. § 2B3.1(b)(4)(B). But I believe that this case can be

decided using the plain text of the enhancement and our current

jurisprudence. Using those sources, I believe that the District

Court was correct to apply the physical restraint enhancement.

And I reach that same conclusion even after considering the

factors laid out by the majority.

6

1.

The language of U.S.S.G. § 2B3.1(b)(4)(B) and

Copenhaver dictate that application of the enhancement in this

matter was proper. As noted by the majority, Bell’s offense

level may be increased by two levels pursuant to the

enhancement “if any person was physically restrained to

facilitate commission of the offense or to facilitate escape.”

U.S.S.G. § 2B3.1(b)(4)(B). “Physical[] restrain[t]” as defined

by the Guidelines, is “the forcible restraint of the victim such

as by being tied, bound, or locked up.” U.S.S.G. § 1B1.1 cmt.

n.1(K).3 In Copenhaver, we held that application of the

enhancement was warranted where a robber forced a victim

from one room to another, eventually having him get into a

fireplace and placing a screen across it. 185 F.3d at 182. The

robber also repeatedly threatened the victim throughout the

encounter and earlier displayed what appeared to be a gun. Id.

After considering the conclusions that our sister appellate

courts reached in other cases challenging the enhancement’s

application, we concluded that the defendant’s actions

warranted application of U.S.S.G. § 2B3.1(b)(4)(B). Id. at

181–82. We explained that the defendant’s action of forcing

the victim into a fireplace in another room behind a screen

confined the victim, similar to “lock[ing] [him] up,” id. at 182

(first alteration in original); see also U.S.S.G. § 1B1.1 cmt.

n.1(K), and that his placement of the screen “sign[aled] his

intention to impede” the victim’s interference with the crime,

Copenhaver, 185 F.3d at 182. We also explained that the

defendant’s display of a weapon, repeated threats, and

placement of the screen left the victim no alternative but to

3

Like the majority, I cite to the Guidelines as they

existed when Bell was sentenced.

7

comply with the demand that he get into the fireplace and

remain there. Id.

The same is true here. When Bell grabbed the employee

by the neck, pointed a gun at his neck, and then shoved him to

the floor before Bell began extracting money from the cash

register, he used physical force to facilitate the commission of

his crime and attempted to confine the employee to the floor.

When the employee tried to stop Bell, Bell struck him with the

weapon. Bell’s use of force against the employee, like the

screen in Copenhaver, both served as an attempt to keep the

employee confined to the floor and signaled his intention to

impede the employee’s interference with the crime.

That the employee was not deterred by Bell’s actions

does not, in my view, prove that Bell’s conduct lacked

Copenhaver’s “no alternative but compliance” factor. We

should not permit “a victim’s boldness [to] lessen[] a

criminal’s culpability.” United States v. Smith, 767 F.3d 187,

191 (3d Cir. 2014); see also id. at 188, 190 (upholding

application of the abduction enhancement, U.S.S.G. §

2B3.1(b)(4)(A), even though the victim “disregarded some of

[the defendant’s] commands and ultimately escaped”). Indeed,

we suggested as much in Copenhaver, explaining that the

screen’s feebleness “d[id] not negate physical restraint”

because “[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.” 185 F.3d at 182–83 (emphases added).

At bottom, my reading of the enhancement, our

precedent, and the record leads me to conclude that the District

Court did not clearly err in enhancing Bell’s sentence by two

8

levels pursuant to U.S.S.G. § 2B3.1(b)(4)(B). To that end, I

would affirm the District Court’s imposition of the

enhancement.

2.

I express no opinion on the appropriateness of the

factors adopted by the majority to be balanced by sentencing

courts when determining whether the physical restraint

enhancement should be applied. But assuming that these

factors set forth an appropriate standard by which to assess

potential applications of U.S.S.G. § 2B3.1(b)(4)(B), I

nonetheless would conclude that application of the

enhancement was warranted in this case.

Applying its new test, the majority concludes that Bell’s

conduct does not amount to physical restraint. It determines

that although Bell used physical force against the employee

when Bell grabbed his neck and shoved him to the floor (factor

(1)), the employee was not “left with no alternative but

compliance . . . since [he] twice attempted to thwart the

robbery” (factor (3)), and “there was no sustained focus on the

victim” (factor (4)), as “the entire interaction . . . seems to have

taken only seconds from start to finish.” Maj. Op. 21–22.

I must disagree with the majority’s conclusions as to the

third and fourth factors, as well as its balancing of all of the

factors. As explained above, the employee’s attempts to

interfere with the robbery should not preclude satisfaction of

the no-alternative-but-compliance factor here because the

enhancement aims to punish the act of physical restraint,

successful or not. See Copenhaver, 185 F.3d at 182–83 (“It is

the perpetrator’s act of enclosing or confining the victim . . . ,

9

actual or threatened, that constitutes the action meriting

enhancement of the offense level.”); see also United States v.

Herman, 930 F.3d 872, 876 (7th Cir. 2019) (noting, in a case

holding that psychological coercion is insufficient to warrant

application of U.S.S.G. § 2B3.1(b)(4)(B), the “more general

point” relayed by “the cases that have found physical restraint”

is that the focus is “on the action of the defendant, not on the

reaction of the victim,” and explaining that “the victim’s

reaction does not determine whether there is or is not physical

restraint”).

I also disagree with the majority’s conclusion regarding

its fourth factor, assessing the duration of the restraint.

Although I refrain from commenting on the propriety of

adopting this factor — that is, whether the majority was correct

to adopt the narrow view of the Court of Appeals for the Ninth

Circuit in the circuit split on this issue — I believe that Bell’s

conduct also satisfies this factor. The majority concludes that

it does not in part because “[i]t could not have taken more than

a few seconds for Bell to grab the victim’s neck and shove him

to the floor,” and therefore, “there was no sustained focus on

the victim.” Maj. Op. 22.4 But that was not the extent of Bell’s

conduct — he also struck the employee when the employee

attempted to interfere with the robbery. In any event, it likely

also took only moments for the robber in United States v.

Coleman, 664 F.3d 1047, 1048, 1050 (6th Cir. 2012), to order

a bank employee at gunpoint to exit his “office adjacent to the

bank lobby . . . and sit on the floor in the lobby,” yet the Court

4

The record does not reveal how long the restraint

lasted. Bell claims it was “brief,” Reply Br. 3, or “very brief,”

Bell Br. 8, while the Government suggests that “the restraint

may have been short-lived,” Gov’t Br. 23.

10

of Appeals for the Sixth Circuit concluded that such conduct

would satisfy the “sustained focus” standard adopted by the

Court of Appeals for the Ninth Circuit.5 In my view, the

physical restraint need only last long enough “to facilitate

commission of the offense or to facilitate escape.” U.S.S.G. §

2B3.1(b)(4)(B). Here, it did the former, as Bell was able to

grab money out of the cash register after shoving the employee

to the ground.

On balance, the factors in the majority’s newly

proffered test weigh in favor of finding that Bell physically

restrained the employee. As the majority recognizes, he used

physical force against the employee. Next, Bell in fact

restrained the employee — or “restrict[ed] [his] freedom of

movement in some manner,” Maj. Op. 13 — when Bell

grabbed him, pointed a gun at him, shoved him to the floor,

and then hit him when he tried to interfere with the robbery.

See United States v. Ossai, 485 F.3d 25, 32 (1st Cir. 2007)

(concluding that a “large and powerful” robber’s placement of

a gun and “his hand on the victim’s neck and shoulder to force

him into a kneeling position, especially while stating that ‘I do

not want to hurt you,’ unquestionably qualifies as a ‘physical

5

It appears to me that the Court of Appeals for the Ninth

Circuit’s “sustained focus” standard might apply only when the

conduct relied upon to prove physical restraint consists solely

of issuing orders to victims at gunpoint rather than some sort

of bodily contact with the victim, as here. See, e.g., United

States v. Parker, 241 F.3d 1114, 1118–19 (9th Cir. 2001)

(concluding, with “little doubt,” that “grabb[ing] a teller by her

hair and pull[ing] her up from the floor . . . constitute[s]

physical restraint,” but ordering a teller at gunpoint to get on

the floor does not, absent a sustained focus on the teller).

11

restraint’ under any reasonable connotation of that term,” as it

“diminish[ed] [his] freedom of movement and ability to resist

or escape”). Finally, the employee was restrained for enough

time that Bell was able to steal $1,000 from the cash register.

That this duration of time is adequate under the majority’s test

would appear to be supported by a decision relied upon and

quoted by the majority distinguishing a case where the victim

was, as here, “held and threatened for a long enough period to

accomplish the cash withdrawal.” Maj. Op. 17 (quoting United

States v. Mikalajunas, 936 F.2d 153, 156 (4th Cir. 1991)).

Based on this record, and reviewing this appeal using the

majority’s new framework, I cannot conclude that the District

Court clearly erred when it applied the physical restraint

enhancement to Bell’s conduct and would therefore affirm

application of that enhancement.6

B.

I concur with the majority’s disposition of Bell’s appeal

concerning application of the otherwise-use-of-a-dangerous-

weapon enhancement. I only note that I would reach this same

conclusion on a clear error review of the District Court’s

sentence, as the record reveals that Bell was armed with a toy

gun, which appeared to the employee to be a real gun until a

part of it broke off, and that Bell pointed the gun at the

employee’s neck, shoved him to the ground, and later struck

him with the gun.7

6

I would reach this same conclusion on a de novo

review of the record.

7

If the standard by which we review this issue were,

indeed, de novo, I would concur with the majority’s conclusion

12

III.

For the above reasons, I respectfully concur in part and

dissent in part.

(and its reasoning therefore) that U.S.S.G. § 2B3.1(b)(2)(D)

applies to Bell’s conduct.

13