United States v. Reynos

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 11-1398

__________

UNITED STATES OF AMERICA

v.

QUINTRELL REYNOS,

Appellant

__________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-09-cr-00618-002)

District Judge: The Honorable Mitchell S. Goldberg

ARGUED JANUARY 10, 2012

BEFORE: RENDELL, AMBRO, and

NYGAARD, Circuit Judges

(Filed : May 22, 2012)

Megan S. Scheib, Esq. [Argued]

William J. Winning, Esq.

Cozen O’Connor

1900 Market Street, 3rd Floor

Philadelphia, PA 19103

Counsel for Appellant

Joseph T. Labrum, III, Esq.

Robert A. Zauzmer, Esq. [Argued]

Office of the United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

__________

OPINION OF THE COURT

__________

NYGAARD, Circuit Judge

This appeal asks us to determine whether the District

Court erred by enhancing the Appellant’s offense level with a

4-level increase for an abduction. Although the issue is

simply stated, the question of what constitutes an abduction

within the meaning of U.S.S.G. § 2B3.1(b)(4)(A) has not

been addressed by this Court until today.

I.

It was nearly midnight on April 18, 2009, when

Appellant Quintrell Reynos and another individual robbed

Ed’s Pizza House in Philadelphia. Reynos was charged with

Hobbs Act robbery and conspiracy to commit Hobbs Act

2

robbery, violations of 18 U.S.C. § 1951(a) and 2 (Counts One

and Two) and with using and carrying a firearm during a

crime of violence, in violation of 18 U.S.C. §§ 924(c) and 2

(Count Three). 1 Reynos pleaded guilty to all three counts. At

the plea hearing, the Government set forth the following

factual background:

Three witnesses were working at

the pizza shop at the time of the

robbery: Juan Gutierrez, Jose

Canabill, and Julian Costeo.

Gutierrez 2 was moving from the

cash register to the pizza oven

shortly before midnight when he

observed the other employees

backing-up in the direction of the

back door. Believing a robbery

was about to take place, Gutierrez

and his fellow employees went to

the back of the shop and locked

themselves into the bathroom.

One of the workers called the

police from a cell phone.

1

The Hobbs Act, codified at 18 U.S.C. § 1951, is a federal

law prohibiting actual or attempted robbery or extortion that

affects interstate or foreign commerce. Section 1951 also

proscribes conspiracy to commit such a robbery or extortion

without reference to the conspiracy statute at 18 U.S.C. § 371.

2

We correct the phonetic misspelling of Gutierrez’s name in

the transcript here, and throughout our opinion.

3

Thereafter, the black males [sic]

started to kick in the bathroom

door, gained entry and said he

needed one of them to open up the

cash register or I’ll start shooting.

[Employee] Gutierrez saw the

male who he later identified as a

person who frequented the store

regularly and he was later

identified as Quintrell Reynos and

it was Reynos who brandished

what Gutierrez has described as a

large, black automatic pistol.

At Reynos’ demand, Gutierrez

opened the cash register. Reynos

took the money in the cash

register and then stated “do you

have any more money? Reynos

started to search Gutierrez.

Reynos then said, “Jose, where’s

the money?” It was at this point

that Gutierrez recognized Reynos

from seeing him in the store many

times before and serving him

food. Reynos asked for keys to

the back door. Gutierrez

explained that the key was in the

back. Reynos then moved toward

the back of the shop and at that

point, all of the employees ran out

the front door of the shop.

4

Reynos did not challenge these facts.

A presentence report was prepared. Pursuant to the

Sentencing Guidelines, Reynos’ base offense level was set at

20. The PSR recommended a 4-point upward adjustment in

the offense level for abducting the pizza shop employees,

pursuant to U.S.S.G. § 2B3.1(b)(4)(A). The PSR also

recommended a 3-point reduction in the offense level,

resulting in a total base offense level of 21. Reynos’ criminal

history category was originally put at a Category III, but was

later reduced to a Category I.

Thus, the advisory sentencing range was identified as

between 37 and 46 months incarceration. A mandatory

consecutive sentence of 120 months was also called for as a

result of Reynos’ violation of 18 U.S.C. § 924(c).

The District Court, over Reynos’ objection, agreed

with the PSR and enhanced his offense level by 4 points,

finding his actions to have constituted an abduction under the

Guidelines. After considering all of the appropriate

sentencing factors, the District Court imposed a sentence of

157-months imprisonment. Reynos now appeals, arguing that

the District Court procedurally erred by enhancing his offense

level for abducting the pizza shop employees.

II.

The District Court had jurisdiction pursuant to 18

U.S.C. § 3231 and we have appellate jurisdiction under 28

U.S.C. § 1291. “When reviewing the sentencing decisions of

the district courts, we exercise plenary review over legal

questions about the meaning of the [S]entencing [G]uidelines,

5

but apply the deferential clearly erroneous standard to factual

determinations underlying their application.” United States v.

Collado, 975 F.2d 985, 990 (3d Cir.1992). We assess whether

a district court committed a “significant procedural error” and

whether the ultimate sentence was substantially reasonable.

United States v. Larkin, 629 F.3d 177, 181 (3d Cir. 2010).

Here, Reynos challenges only the procedural

reasonableness of his sentence. Because he does not

challenge any other part of the District Court’s sentencing

calculation, or take issue with the substantive reasonableness

of the District Court’s decision, Reynos has waived any

challenge on those grounds. See United States v. Negroni,

638 F.3d 434, 440 n.4 (3d Cir. 2011). Reynos alleges two

procedural errors: 1) that the District Court improperly

applied the abduction enhancement to his sentence, and 2)

that the District Court engaged in “double counting” by

enhancing Reynos’ sentencing for abduction where the use of

the handgun actually served as the basis of his conviction

under 18 U.S.C. § 924(c).

III.

A.

We begin with the abduction enhancement. The pre-

sentence report recommended an upward adjustment for

abduction based on Reynos’ “kick[ing] open the bathroom

door where the restaurant employees sought refuge,

abduct[ing] them at gunpoint, and forc[ing] them to the cash

register area.” Section 2B3.1(b)(4)(A) provides for a four-

level increase in the base offense level for robbery “if any

person was abducted to facilitate commission of the offense

6

or to facilitate escape.” “Abducted” means that a victim was

“forced to accompany an offender to a different location. For

example, a bank robber’s forcing a bank teller from the bank

into a getaway car could constitute an abduction.” § 1B1.1,

comment. (n.1(a)).

From this Guideline, we distill three predicates that

must be met before the abduction enhancement can be

applied. First, the robbery victims must be forced to move

from their original position; such force being sufficient to

permit a reasonable person an inference that he or she is not

at liberty to refuse. Second, the victims must accompany the

offender to that new location. Third, the relocation of the

robbery victims must have been to further either the

commission of the crime or the offender’s escape. 3 Whether

3

Our dissenting colleague emphasizes the need to find that the

defendant forcibly moved the victim “in a manner and/or for

a reason that the abduction enhancement was specifically

designed to prevent.” In addition to the examples of such

reasons the dissent mentions, § 2B3.1(4)(A) makes clear that

forcing movement to facilitate commission of the crime is a

circumstance the enhancement was specifically designed to

prevent. Thus, even if we were to agree with our colleague

that this additional requirement exists, we would find that it is

met in this case, where Reynos kicked in a locked bathroom

door and threatened the store employees with a gun before

forcing at least one of them to accompany him to the cash

register to commit the offense. We find no support in the

Guidelines, the accompanying commentary, or the caselaw

for our colleague's suggestion that cases involving forcible

movement to facilitate the commission of the offense should

be treated differently than cases involving such movement to

7

or not the Government has established these predicates

would, of course, be reviewed for plain error, with the degree

of distance or definition of location, entrusted as it must be, to

the sound discretion of the District Court.

Reynos attacks the addition of this enhancement to his

sentence. He argues three distinct points: first, that the record

is devoid of evidence proving he used “force” against the

pizza shop employees; second, that the record is silent on

whether the employees accompanied him from the bathroom

to the cash register; and third, that moving from the bathroom

to the cash register is a not a change of location.

1. Use of Force

We start with the enhancement’s requirement of a use

of force. Reynos argues that nothing in the record indicates

he used actual force against any pizza shop employee. No

victim, he argues, was “goaded, forced, dragged or shoved

from the bathroom door to the cash register.” True enough.

No one was “goaded” into leaving the bathroom. And, we do

not know whether any actual physical force—such as shoving

or dragging—was exerted on the victims. The record’s

silence on the exertion of any physical force is of no moment,

however.

Nothing within the plain meaning of the abduction

enhancement’s use of the term ‘force’ confines its meaning

solely to physical force. See, e.g., United States v.

Cunningham, 201 F.3d 20, 28 (1st Cir. 2000). As the Court in

facilitate the offender's escape, or that such cases require

proof of an additional, “aggravating circumstance.”

8

Cunningham noted, the term “force” connotes compelling

someone “by physical, moral or intellectual means” or “to

impose” or “to win one’s way.” Id. (citing Webster’s Seventh

New Collegiate Dictionary 326 (1970)). Furthermore, the

abduction enhancement’s intention—at least in part—is to

protect victims against additional harm that may come to

them by virtue of their isolation. United States v. Whooten,

279 F.3d 58, 61 (1st Cir. 2002). The enhancement applies,

therefore, whether the abduction involved physical force or

just the threat of such an assault. Id.

We will not, therefore, limit the application of the

abduction enhancement to only those scenarios that include

the exertion of actual physical force. We agree with those

courts that have found, as a matter of policy that an abduction

achieved through threat, fear and/or intimidation, “carries the

same dangerous consequences as an abduction accomplished

by the use of physical force.” Cunningham, 201 F.3d at 28.

In both instances, the offender is able to isolate his or her

victims, thereby increasing the chance that they will be

harmed. Id. (quoting United States v. Saknikent, 30 F.3d

1012, 1013-14 (8th Cir. 1994)). In Cunningham, supra, the

Court of Appeals for the First Circuit observed that the

abduction enhancement, at least in part, was designed to

protect victims from isolation, and thus applies whether the

abduction is carried out by threat, intimidation or by physical

violence. 201 F.3d at 28. Likewise, in Saknikent, the Court

of Appeals for the Eighth Circuit found that “the abduction

enhancement requires only that force necessary to overcome

the particular victim’s will.” 30 F.3d at 1014.

Here, we note first that the victims had fled to a place

of relative safety—a small bathroom, behind a locked door—

9

once the robbery commenced. Then, after Reynos forced

open the bathroom door, the victims pointedly saw him

‘brandish’ a large, black automatic pistol. The Guidelines

define “brandishing” as meaning “all or part of the weapon

displayed, or the presence of the weapon was otherwise made

known to another person in order to intimidate that person.”

See U.S.S.G. § 1B1.1, comment. (n.1(C)) (emphasis added).

We have no hesitation in concluding that the brandishing of a

weapon is a use of force for purposes of the abduction

enhancement. Reynos wielded a lethal weapon in order to

intimidate the victims by threatening to shoot them. This was

an intimidating use of force designed to compel the victims to

assist Reynos by opening the cash register. There is sufficient

evidence on this record to support the conclusion that Reynos

exerted force against the victims.

2. Accompaniment

The abduction enhancement requires that the robbery

victims accompany the offender to a new location. § 1B1.1,

comment. (n.1(a)). Reynos argues that no evidence exists in

the record to suggest that the pizza shop employees

accompanied him to the cash register. At oral argument, the

Government conceded that the record merely points to

evidence that the pizza shop employees walked with Reynos

from the bathroom to the cash register area. But, the

Government argues, when looking at the facts in their totality,

it was not erroneous for the District Court to find that the

victims accompanied Reynos to the cash register, a factual

determination that we review for clear error. See United

States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003).

10

Here, the facts reveal that, after kicking-in the

bathroom door, Reynos demanded that the victims open the

cash register for him or he would “start shooting.” At this

point, all three employees and Reynos were together at the

bathroom. The next event in the timeline finds pizza shop

employee Gutierrez with Reynos at the cash register. We

know they are there because, as Reynos is taking the money

from the cash drawer, he asks Gutierrez if there is any other

cash in the shop. Reynos also physically searches Gutierrez

at this point, an action Reynos could not have undertaken had

Gutierrez not accompanied him to the cash drawer. When

Reynos eventually retreated to the back of the shop, the

employees fled out the front of the store. From these

uncontested facts, we can easily surmise that the employees

and Reynos were together at the cash register whereas before

they were together at the bathroom. It defies common sense

to argue that the employees did not accompany Reynos from

the bathroom to the cash register. We therefore have little

trouble concluding from this record that the victims

accompanied Reynos from the bathroom to the cash register.

Furthermore, the record conclusively establishes that

Reynos forced the victims to accompany him to facilitate the

robbery of the cash register. See, e.g., United States v.

Hawkins, 87 F.3d 722, 728 (5th Cir. 1996) (accompaniment

made in connection with a getaway). The record clearly

indicates that Reynos ordered the victims to accompany him

to the cash register and that at least one victim, Gutierrez,

opened the register for Reynos. Reynos had no reason to

come into contact with the victims, other than to force them

to join him. Presumably, he could have committed his

robbery offense alone, leaving the pizza shop employees

locked in the bathroom. Because Reynos used force to move

11

the victims from the bathroom to the cash register and

because the victims accompanied him there, the abduction

enhancement was properly applied, unless the relocation from

the bathroom area to the cash register site was not a change in

location.

3. Change in Location

At oral argument, the parties focused their

disagreement on the previous question—whether the victims

accompanied Reynos from the bathroom to the cash register.

Their briefing, however, devotes the largest portion of

argument to the question of whether moving from the

bathroom area to the cash register amounted to a change in

location. Reynos maintains that this movement—a distance

of approximately thirty-four feet—did not amount to a change

in location. He argues that the narrow confines of Ed’s Pizza

House constituted a singular site and no change in location

could have occurred unless Reynos moved the victims outside

of the facility. The Government disagrees.

We have not considered this question previously and

we have no precedent interpreting what constitutes a change

of location for purposes of the abduction enhancement. Other

courts, however, have addressed the issue.

In United States v. Hawkins, 87 F.3d 722 (5th Cir.

1996), for example, the Court of Appeals for the Fifth Circuit

held that the term “different location” should be interpreted

flexibly, on a case-by-case basis. Id. at 726-28. At issue in

Hawkins was whether moving a victim at gunpoint 40 or 50

feet across a parking lot to a van amounted to an abduction

(the victim in Hawkins fled before being actively put into a

12

van). The Court of Appeals determined that the term

“different location,” as set out in the comments to § 1B1.1, is

“flexible and thus susceptible of multiple interpretations,

which are applied case by case to the particular facts under

scrutiny, not mechanically based in the presence or absence

of doorways, lot lines, thresholds and the like.” Id. at 727-28;

see also United States v. Johnson, 619 F.3d 469, 472 (5th Cir.

2010). The Court explained further:

In ordinary parlance, “location”

can refer to an outside building or

parking lot, so that a miniscule

movement, such as the crossing of

a threshold separating interior and

exterior of a building, would

constitute movement to a different

location.

On the other hand, in ordinary

parlance, “location” is frequently

used in reference to a single point

where a person is standing, or to

one among several rooms in the

same structure, or to different

floors in the same building. In

other words, while movement

from outside to inside, or vice

versa, or movement across a

property line, might be factors

giving support to a conclusion of

“different locations,” the absence

of such facts does not bar such a

conclusion.

13

Id.

The Court of Appeals for the Fourth Circuit has also

followed Hawkins’ approach. In United States v. Osborne,

514 F.3d at 389, 90 (4th Cir. 2008), the Court of Appeals for

the Fourth Circuit affirmed the application of an abduction

enhancement where the victims were forcibly moved from

one section of a drugstore to another. In Osborne, the

offender used force to move the victims from the secured

pharmacy section of a Walgreens drugstore, across the retail

floor, stopping at the front of the store. Id. at 389-90.

Important to the Osborne Court was the fact that the

pharmacy area and retail portion of the store were separated

by a counter as well as a secure door which could be opened

only by authorized personnel through the use of a digital

keypad. Id. at 390. The Osborne court also deemed it

important that the offender had moved the victims in order to

facilitate his escape. Id.

We find the flexible approach outlined in the Hawkins

and Osborne decisions to have considerable merit. The term

‘location’ connotes several things; hence, the necessity of a

flexible definition. Certainly, two separate physical structures

are two distinct locations. And, a location does not need to

have a physical construct—a park or the beach can be a

location just as a courthouse or church. No one could argue

that moving from one of these physical structures or

geographic locations to another is not a change in location.

The term ‘location,’ however, is broad enough to encompass

different points of reference within the constructs of a single

building or geographic site. See Osborne, 514 F.3d at 389. A

courthouse, for example, has numerous distinct locations

within: a clerk’s office, courtrooms, security offices and

14

judicial chambers are all separate and distinct locations within

the same structure. Paring it down further, a judge’s

chambers in that same courthouse may have several locations:

a reception area, judge’s office, law clerk cubicles and file

rooms, for example. Of course, the smaller the space, the

more difficult it is to find a change in location. But, even

then, the smallest of areas still may contain different

locations: a judge’s private office may have a location

containing a desk and computer that is separate and distinct

from a location containing a conference table and chairs. It is

precisely because of the broad scope of the term ‘location’

that courts must use a highly flexible approach in finding one;

an approach that recognizes that the abduction enhancement

may properly be applied even though the victim remained

within the confines of a single building. Hawkins at 728.

After thoroughly reviewing the facts before it, the

District Court in this case found a change in location,

determining:

I think the Government says that

it was 39 feet from the locked

bathroom to the cash register.

The defense says it was 34 feet. I

don’t know that it makes much of

a difference. For the benefit of

the doubt of the Defendant, I’ll

find that it was 34 feet, but when I

originally looked at the picture of

the pizzeria, it seemed that the

bathroom and the cash register

were in close proximity, but the

video was very illuminating;

15

they’re not. They’re [sic], and I

won’t describe it perfectly, but

you have to go down a couple

different halls to get from one

area of the bathroom which is far

away from the register, so it’s not

a matter of one being right next to

the other. We have, at least based

on the Defense’s version, 34 feet.

This finding was not erroneous. The record fully supports the

District Court’s determination. The District Court was quite

thorough in making this finding. After the sentencing

hearing, the Court recessed for a week in order to obtain

additional details on the exact layout of Ed’s Pizza House.

During this recess, the parties submitted video documentation

of the store as well as photographs and diagrams indicating

the physical measurements of the store. By virtue of its

locked door, separate walls and distance from the cash

register, the District Court found the bathroom of the pizza

shop to be a different location from the cash register area, a

conclusion well within its considerable discretion.

“Unduly legalistic” and “punctilious” are words

previously used to describe a less than flexible approach to

finding a ‘change in location’ under the Guidelines’ definition

of enhancement. See, e.g., Hawkins, 87 F.3d at 728. We

agree and will not disturb the District Court’s finding.

4. Facilitating the Offense

The record shows that Reynos, after kicking-in the

bathroom door, reached in and unlocked it. He then forced

16

Gutierrez and the other victims, at gunpoint, to leave the

bathroom and move with him to the cash register area. There,

he forced Gutierrez to open the cash drawer, which Reynos

then robbed. The abduction enhancement requires that the

offender force the victims to accompany him in order to

facilitate either the commission of the crime or the offender’s

escape. U.S.S.G. § 1B1.1 app. note 1(a); 2B3.1(4)(A).

Reynos clearly did not abduct the victims here to facilitate his

escape. After emptying the cash register, Reynos abandoned

his victims and attempted to flee out the back door. The

victims escaped through the front entrance. Instead, Reynos

used Gutierrez to open the cash register, thereby facilitating

his offense. These are adequate facts to find that Reynos

forced the victims to move to a different location for purposes

of facilitating the commission of the crime.

5. Conclusion

Our review of the record leads us to conclude that

Reynos abducted the pizza shop employees during the

commission of the robbery. This is the type of case where the

abduction enhancement is proper, even though the victims

moved within a single structure. Reynos broke open the

locked bathroom door where the employees had secured

themselves, extricated the employees and forced them—at the

point of a gun—to move more than thirty-feet to a new

location, the cash register area of the store. Employee

Gutierrez was then forced to open the cash drawer, thereby

facilitating Reynos’ crime. On these facts, the District Court

did not err by applying the abduction enhancement to

Reynos’ sentence.

C.

17

Having determined that the abduction enhancement

was proper, we turn to Reynos’ argument that applying this

enhancement amounted to “double counting.” Improper

double counting occurs when a district court imposes two or

more upward adjustments within the same Guideline range,

when both are premised on the same conduct. See, e.g.,

United States v. Fisher, 502 F.3d 293, 309 (3d Cir. 2007).

Double-counting is prohibited by U.S.S.G. § 2K2.4, cmt. n. 4,

which provides, “[if] a sentence under this Guideline is

imposed in conjunction with a sentence for an underlying

offense, do not apply any specific offense characteristic for

possession, brandishing, use, or discharge of an explosive or

firearm when determining the sentence for the underlying

offense.” Reynos argues that improper double-counting

occurred here because the District Court enhanced his offense

level for abduction premised on the fact that he used a

handgun—conduct already covered by Count Three of the

indictment. That is to say, in sentencing Reynos to a ten year

mandatory minimum for use of a handgun called for by 18

U.S.C. § 924(c), the District Court improperly took into

account the fact of the abduction enhancement. We disagree.

First of all, abducting a person during the course of a

robbery is not a “specific offense characteristic for

possession, brandishing, use or discharge of an explosive or

firearm.” § 2K2.4. Instead, the District Court’s enhancement

addresses separate harm--the endangerment of the pizza shop

workers by moving them to a different location in order to

facilitate the commission of Reynos’ offense. Here, even

though the crime involves both an abduction and the use of a

gun, separate provisions of the Guidelines are properly

applied to capture the essence of Reynos’ offenses.

18

Secondly, the application of the abduction

enhancement in this case fits squarely into Fisher, supra.

There, we held that “only when the Guidelines explicitly

prohibit double counting will it be impermissible to raise a

defendant’s offense level under one provision when another

offense Guideline already takes into account the same

conduct.” 502 F.3d at 309 (citing United States v. Wong, 3

F.3d 667, 670 (3d Cir. 1993)). Fisher involved a prosecution

for possession of a firearm by a convicted felon, based on a

situation where the defendant pointed a firearm at a police

officer. There, we upheld both the enhancement for use of a

firearm in connection with another felony offense and the

additional enhancement for intent to cause bodily harm to a

law enforcement officer. Although these enhancements

stemmed from the same incident, we held that “[o]nly when

the Guidelines explicitly prohibit double counting will it be

impermissible to raise a defendant’s offense level under one

provision when another offense Guideline already takes into

account the same conduct.” Id. The enhancements in Fisher

did not constitute double counting because the Guidelines

permitted the application of both. One enhancement

punished the use of a firearm while the other called for an

enhancement based on the victim’s status as a police officer.

Id.

Enhancing Reynos’ sentence was not double counting.

The penalty for the robbery offense is set out in § 2B3.1 and

the one for use of a firearm is found in § 2K2.4. And, the

four-point increase in the offense level for the abduction

offense is found in § 2B3.1(b)(4)(A). Reynos points to no

explicit prohibitions here, so we find no improper double

counting.

19

III.

The District Court has imposed a sentence that is

procedurally correct. We will, therefore, affirm its judgment.

20

United States of America v. Quintrell Reynos,

No. 11-1398

AMBRO, Circuit Judge, dissenting.

Under the Sentencing Guidelines, an abduction occurs

when “a victim was forced to accompany an offender to a

different location.” U.S.S.G. § 1B1.1, comment (n.1(A)). To

illustrate this, commentary for the Guidelines states that

“forcing a bank teller from the bank into a getaway car would

constitute an abduction.” Id. The Guidelines’ example of

forcibly taking someone from inside a bank to a getaway car

outside the building stands in stark contrast to the case before

us, where the bathroom and the cash register are separated by

a distance of only 34 feet within an 803-square-foot pizza

shop.

The analysis of what qualifies as an abduction, and

what does not, is subtle and nuanced. Reasonable people can

differ, and the side of the line I land is different than my

colleagues. For the reasons given below, I respectfully

dissent.

The beginning point for my colleagues is that the term

“location” “is broad enough to encompass different points of

reference within the constructs of a single building or

geographic site.” Maj. Op. at 14. I agree. For example,

shopping malls, office buildings, and apartment complexes

may be single structures, but no one would dispute that they

have different points of reference within them (various retail

stores, different companies’ offices, and individual

apartments), and hence have different locations.

However, as the majority opinion notes, “the smaller

the space, the more difficult it is to find a change in location.”

Id. at 15. I also agree. But here my perspective parts with my

colleagues. To me, if the building or geographic site is small

enough, and/or the distance traveled is short enough, there is

only one point of reference, and, in turn, only one location.

While their contention that even “the smallest of areas still

may contain different locations[,]” id., is plausible in theory,

in many situations involving a single small building or

geographic site, and/or when only a short distance is traveled,

it strains logic.

Such is the case with Ed’s Pizza House. It is so

small—803 square feet by my estimation of the 56’ by 14’4”

shop—that I believe it is only one point of reference and thus

only one location. Many offices of senior persons in

organizations are at least as big.

If a customer were standing near the bathroom door of

Ed’s Pizza House and asked where he was located, he would

say he was at Ed’s Pizza House. If this same customer were

then to walk to the cash register (34 feet away from the

bathroom door) and again asked where he was located, I have

no doubt that he still would say he was at Ed’s Pizza House.

The short distance traveled within the same small shop leads

me to conclude that there was not movement to a different

location.

Contrast this with the example of a mall shopper who

travels 34 feet across a walkway, leaving Store A and

entering Store B. While the distance traveled is the same as

that in this case, the points of reference are undoubtedly

different in the shopping mall example. The shopper would

first say he was at Store A and then say he was at Store B. As

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such, the mall shopper did, in fact, move to a different

location in the example. The same can be said for the

apartment resident who walks across the hallway, leaving

Apartment 1A and entering Apartment 1B. While the

distance traveled is short (likely even less than 34 feet), his

location certainly changed from one apartment to the other.

Consider also the example of a farmer in his cornfield.

He could walk hundreds of yards, but, because each position

in his cornfield is amorphous, his location does not change.

He still is in his cornfield no matter where he is located.

Thus, while I agree with the majority that a “highly

flexible approach,” id., should be employed when analyzing

the “different location” issue, these examples underscore the

principle that, when only one building or geographic site is

involved (especially a small building or site), and/or when

only a short distance is traveled, there is a greater need for the

crossing of some line of demarcation—a doorway, lot line,

threshold, etc.—to find that there was movement to a

different location. To hold otherwise would “virtually

ensure” that any movement at all would result in an abduction

enhancement. See United States v. Eubanks, 593 F.3d 645,

654 (7th Cir. 2010) (holding, among other things, that

abduction enhancement was inappropriate where an armed

robber forced a store employee to the back room to retrieve a

surveillance video).

I readily acknowledge that, even when only one

building or geographic site is involved and/or when the

distance traveled is not great, the abduction enhancement

rightly can be applied to a defendant who forcibly moves a

victim in a manner and/or for a reason that the abduction

enhancement was specifically designed to prevent, such as

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when the defendant isolated the victim, used the victim as a

hostage or human shield, or forced the victim to accompany

him during his getaway. See United States v. Osborne, 514

F.3d 377, 390-91 (4th Cir. 2008) (holding that abduction

enhancement was applicable where defendant forced

Walgreens employees at knifepoint from the pharmacy

section, located in the back of the store, to the front door of

the building; relying heavily on fact that the defendant forced

the victims to accompany him so he could “keep[ ] [the]

victims close by as readily accessible hostages”); United

States v. Whooten, 279 F.3d 58, 61 (1st Cir. 2000) (observing

that “the abduction enhancement is intended, at least in part,

to protect victims against additional harm that may result

from the victim’s isolation”); United States v. Hawkins, 87

F.3d 722, 728 (5th Cir. 1996) (per curiam) (holding that

abduction enhancement was applicable where victims were

dragged and forced at gunpoint from a pickup truck to a van

that was 40-50 feet away within the same parking lot largely

because the movement “was made in connection with a

getaway”). In such a situation, the aggravated nature of the

defendant’s forcible movement of the victim likely tips the

scale in favor of finding that there was movement to a

different location despite there having been only one building

or site involved and/or a short distance traveled.

Absent an aggravating circumstance, however, there is

little to support the finding of a different location when only

one small building or site is involved, and/or when only a

short distance is traveled, and there is no line of demarcation.

This is because “transporting victims from one room to

another is simply not enough for abduction” absent an

aggravating circumstance (such as those described above) that

is “‘plainly targeted by the abduction enhancement.’”

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Eubanks, 593 F.3d at 653-54 (quoting Osborne, 514 F.3d at

390). “To find otherwise would virtually ensure that any

movement of a victim from one room to another within the

same building, without any other aggravating circumstances,

would result in an abduction enhancement.” Id. at 654.

Application of the abduction enhancement thus would be

inappropriate in such a situation.

There is no aggravating circumstance here. Quintrell

Reynos did not isolate one victim from the rest, he did not use

any of them as a hostage, nor did he force any of them to

accompany him in his getaway. In fact, after Reynos

obtained the money from the cash register and from Juan

Gutierrez’s person, Reynos left the pizza shop through its

back door while Gutierrez and the two other employees went

out the front door. It is difficult for me to see how the

abduction enhancement is appropriate when the supposed

abductor and his abductees left the building separately and

through different doors.

It is true that Reynos forcibly moved the pizza shop

employees from the bathroom to the cash register in order to

facilitate the commission of a crime—the robbery. However,

this alone is insufficient to subject Reynos to the abduction

enhancement. To put into play that enhancement, whether for

an escape or to facilitate a crime, there must be more than one

location involved. As explained above, I believe here only

one location was involved, as all of the movement occurred

within a single, and small, building and only a short distance

was traveled.

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Accordingly, because I believe that the bathroom and

cash register within the small pizza shop are not different

locations, and because no aggravating circumstance exists, I

would hold that the abduction enhancement does not apply to

this case.

While I believe that the four-level abduction

enhancement under § 2B3.1(b)(4)(A) should not be applied to

Reynos’ sentence, I am skeptical that his term of

imprisonment would be shorter in this case. Reynos’ conduct

appears clearly to warrant the two-level physical restraint

enhancement under § 2B3.1(b)(4)(B), and that enhancement

certainly would have been applied to his sentence had the

District Court not applied the abduction enhancement. As

noted below, the mere two-level decrease in total offense

level would have reduced the sentence range by only seven to

nine months, with the low end of the sentence range for the

higher offense level overlapping with the high end of the

sentence range for the lower offense level. The sentencing

judge thus could have imposed the exact term of

imprisonment on Reynos had the restraint enhancement been

applied instead of the abduction enhancement.

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

provides for a two-level increase “if any person was

physically restrained to facilitate commission of the offense.”

U.S.S.G. § 2B3.1(b)(4)(B). “Physically restrained” means

“the forcible restraint of the victim such as by being tied,

bound or locked up.” U.S.S.G. § 1B1.1, comment (n.1(K)).

The qualifying phrase “such as” in this definition indicates

that the words “tied, bound, or locked up” are listed by way

of example rather than limitation. United States v. Carter,

410 F.3d 942, 954 (7th Cir. 2005). Accordingly, physical

restraint “is not limited to the examples listed in the

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guidelines.” United States v. Copenhaver, 185 F.3d 178, 180

(3d Cir. 1999). Moreover, “[f]orce is not limited to physical

force, but may also encompass the operation of circumstances

that permit no alternative to compliance.” Carter, 410 F.3d at

954 (citation and internal quotation marks omitted).

In our case, Gutierrez and his two co-workers had no

alternative but to comply with Reynos’ demands. See id.

(holding that restraint enhancement was applicable where the

defendant forced a bank teller at gunpoint from the bank vault

to her cash drawer against her will, explaining that, “with [the

defendant’s] gun pointed at her from only inches away, [the

bank teller] had no alternative but to comply with his

instructions to move”). Reynos’ conduct “was thus more

culpable than a robber who does not forcibly restrain a victim

to facilitate his offense.” Id. As such, I believe that the two-

level physical restraint sentence enhancement would be

appropriate.

Consequently, it appears that the District Court still

could have sentenced Reynos to 157 months’ imprisonment.

He was subject to a mandatory consecutive 10-year prison

sentence under 18 U.S.C. § 924(c) for discharging a firearm

during the robbery (he fired his handgun several times in an

effort to break the lock on the back door of the pizza shop

while attempting to flee). In addition, there is a base offense

level of 20 for robbery under 18 U.S.C. § 1951. U.S.S.G.

§ 2B3.1. Applying the two-level restraint enhancement

would mean an offense level of 22 (as opposed to 24 if the

four-level abduction enhancement were used). With a three-

level stipulated downward adjustment for acceptance of

responsibility, the total offense level becomes 19 (as opposed

to 21 if the abduction enhancement were applied). Even

using Criminal History Category I (the lowest category), the

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Guidelines’ range for imprisonment for an offense level of 19

is 30 to 37 months, while the range is 37 to 46 months for

offense level 21. When this term is added to the 10-year

mandatory consecutive prison sentence, the range for Reynos’

sentence was 150 to 157 months’ imprisonment. Thus,

Reynos still could have been sentenced to 157 months’

imprisonment even using the restraint enhancement instead of

the abduction enhancement.

* * * * *

With this context, I respectfully dissent but doubt that

the net effect, even were my lack-of-abduction view to

prevail, results in a reduction in sentence.

8