United States v. Joshua Herman ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3057
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSHUA T. HERMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:16-CR-00061-JTM-PRC-1 — James T. Moody, Judge.
____________________
SUBMITTED MAY 28, 2019 * — DECIDED JULY 18, 2019
____________________
Before WOOD, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
*We have agreed to decide this appeal without oral argument, be-
cause the briefs and record adequately present the facts and legal argu-
ments, and oral argument would not significantly aid the court. FED. R.
APP. P. 34(a)(2)(C). Pursuant to Seventh Circuit Internal Operating Proce-
dure 6(b), it has been assigned to the panel that resolved No. 17-1423,
United States v. Herman, 884 F.3d 705 (7th Cir. 2018).
2 No. 18-3057
WOOD, Chief Judge. This is the second time we have been
asked to review the sentence that Joshua Herman received af-
ter pleading guilty to violating 18 U.S.C. § 922(g), which pro-
hibits felons from possessing a firearm. Herman raised two
issues on his first appeal: one concerned the district court’s
failure to recognize that it had the discretion to require Her-
man’s federal sentence to run concurrently with an unrelated
state sentence that had yet to be imposed; and the other re-
lated to the proper interpretation of U.S.S.G. § 2B3.1(b)(4)(B),
which dictates that a person’s offense level for robbery must
be increased by two if he “physically restrained” the victim.
United States v. Herman, 884 F.3d 705, 706 (7th Cir. 2018). (That
guideline applied because Herman possessed the firearm in
connection with a robbery. See U.S.S.G. § 2K2.1(c)(1)(A).) We
found it necessary to reach only the first issue, which we re-
solved in Herman’s favor. We ended our opinion by noting
that “[o]n remand, the district court should consider Her-
man’s argument that the physical restraint enhancement does
not apply to him … .” Herman, 884 F.3d at 708.
Before we address the district court’s response on remand,
it is helpful to outline the facts that gave rise to this aspect of
the case. On May 4, 2016, Jacob Kirk invited Herman to Kirk’s
house on 178th Street in Hammond, Indiana. Kirk’s mother,
Samantha Daniels, also lived at the house. When Kirk and
Herman arrived, they saw that Daniels had a Jimenez Arms
handgun partially tucked into her purse. Somewhat reluc-
tantly, she allowed Herman to handle the gun for a moment.
At that point Herman pulled out a revolver and said “Look …
stay seated. I don’t want to blow you guys back, but I will if I
have to.” He instructed Kirk and Daniels not to move, and
then turned and ran outside. Kirk and Daniels ignored Her-
man’s order and pursued him. Herman spun around, with the
No. 18-3057 3
Jimenez Arms gun in one hand and the revolver in the other
and fired a shot that flew past Daniels’s head. Kirk recalled
that just before Herman fired, Kirk heard him say “I told you
not to … ,” and then there was a “boom.”
The district court ordered briefing on the question
whether the actions of pointing and shooting the gun quali-
fied as physical restraint of the two victims, Kirk and Daniels.
It noted that there is a circuit split on this issue. After holding
a resentencing hearing, the court—relying on the information
in the initial presentence report (PSR) and addendum—con-
cluded:
Defense counsel’s objections are not well-taken, so
they’re overruled. I adopt the positions of the govern-
ment and the probation officer as set forth in the ad-
dendum, and I reject the position of defense counsel.
Contrary to Herman’s contention on appeal, this was enough.
The court was entitled to adopt the government’s version of
events, as set forth in the PSR, to explain its ruling on a dis-
puted point that had been thoroughly explored. FED R. CRIM.
P. 32(i)(3); see United States v. Canino, 949 F.2d 928, 951 (7th
Cir. 1991).
The court calculated Herman’s guidelines range as fol-
lows: to the base offense level of 20, it added seven levels be-
cause a firearm was discharged, U.S.S.G. § 2B3.1(b)(2)(A); it
added another level because a firearm was taken, id.
§ 2B3.1(b)(6); it added two levels based on the finding that
Herman physically restrained the victims, id. § 2B3.1(b)(4)(B);
and it subtracted three levels for acceptance of responsibility,
id. § 3E1.1. This resulted in a final offense level of 27. Her-
man’s criminal history level was V; this initially led to a
4 No. 18-3057
recommended guidelines range of 120 to 150 months. Because
120 months was the statutory maximum, however, the final
guidelines result was not a range but a point: 120 months. See
U.S.S.G. § 5G1.1(c). As it had done before, the court imposed
exactly that sentence on him. Had it rejected the use of the
physical-restraint enhancement, the final offense level would
have been 25, and the recommended range 100 to 120 months.
On appeal, Herman is asking for a remand for resentencing
under the latter range.
The guideline at the center of this case is section 2B3.1,
which covers the offense of Robbery. It calls for a base offense
level of 20, and then addresses various specific offense char-
acteristics that cause the level to go up. The subsection of in-
terest to us reads as follows:
(4) … (B) if any person was physically restrained to
facilitate commission of the offense or to facilitate es-
cape, increase by 2 levels.
The Application Notes direct us to the Commentary on sec-
tion 1B1.1 for a definition of the term “physically restrained.”
There we find the following:
“Physically restrained” means the forcible restraint of
the victim such as by being tied, bound, or locked up.
U.S.S.G. § 1B1.1, cmt. n.1(L).
As the district court recognized, our sister circuits have
split on the question whether the physical-restraint enhance-
ment can be applied to situations in which an armed defend-
ant simply orders his victims not to move and does not other-
wise immobilize them through measures such as those out-
lined in the commentary to U.S.S.G. § 1B1.1. The government
counts four circuits that take the position that pointing a gun
No. 18-3057 5
at a person and commanding her not to move is enough to
constitute a “physical restraint,” and four that say this is not
enough. Compare United States v. Dimache, 665 F.3d 603, 606–
07 (4th Cir. 2011) (enough); United States v. Miera, 539 F.3d
1232, 1234–36 (10th Cir. 2008) (enough); United States v. Wal-
lace, 461 F.3d 15, 33–34 (1st Cir. 2006) (enough); and United
States v. Gonzalez, 183 F.3d 1315, 1327 (11th Cir. 1999)
(enough); with United States v. Parker, 241 F.3d 1114, 1118 (9th
Cir. 2001) (more needed); United States v. Drew, 200 F.3d 871,
880 (D.C. Cir. 2000) (more needed); United States v. Anglin, 169
F.3d 154, 163–64 (2d Cir. 1999) (more needed); and United
States v. Hickman, 151 F.3d 446, 461 (5th Cir. 1998) (more
needed). And that list does not exhaust the possibilities.
This court has attempted in the past to adopt a middle po-
sition. The leading case is United States v. Doubet, 969 F.2d 341(7th Cir. 1992), abrogated on other grounds by United States v.
Dunnigan, 507 U.S. 87 (1993). As in many cases involving this
enhancement, the facts involve a bank robbery. Wearing a
blue ski mask and armed, the defendant, George Doubet, ap-
proached the tellers’ counter and announced a hold-up. He
then leapt over the counter and instructed the three tellers to
move in the direction of a back room. They complied as he
ushered them along. Once in the room, he directed them to go
into an attached restroom and told them that he would “blow
[their] … head[s] off” if they left the restroom. Id. at 346. They
huddled there for five minutes and then risked going out.
Finding that the robber was gone, they activated the alarm. Id.
at 342.
Doubet was convicted of the bank robbery. At sentencing,
his advisory guidelines range was enhanced two levels by the
physical-restraint provision, section 2B3.1(b)(4)(B). We
6 No. 18-3057
upheld the enhancement on appeal. One of the (nonexclusive)
examples of physical restraint given in the Guidelines com-
mentary is being “locked up.” We concluded that Doubet’s
contention “that the victims were not physically restrained
because the restroom was not locked, as in bolted shut, is an
overly literal, and, we believe, overly restrictive interpretation
of ‘physical restraint’ as that term is contemplated by the
Guidelines.” 969 F.2d at 346. Nonetheless, we added that
simply “herding victims into a defined area” would not nec-
essarily constitute physical restraint. Id. We recognized the
need for a limiting principle that would avoid an interpreta-
tion under which every armed bank robbery automatically
supports the physical-restraint enhancement. That “some-
thing more” in Doubet was the use of the weapon to force the
victims into the bathroom, coupled with the statement that an
accomplice was watching the door and “serv[ing] as a figura-
tive lock and key sufficient to constitute a physical restraint.”
Id. at 347 (Although there was actually no accomplice, the vic-
tims thought there was at the time, and so we found Doubet’s
misrepresentation to be immaterial.)
We have been looking for something that tells us on which
side of the line that divides psychological coercion from phys-
ical restraint a given case falls. In United States v. Taylor, 620
F.3d 812 (7th Cir. 2010), we gave a nod to the utility of the
examples furnished by the definition of “physical force” in the
Guidelines: “[It] is true … that a statutory list of examples of
conduct that violates the statute can be a clue to the statute’s
intended scope; that is the core of good sense in the ‘canon of
construction’ known as eiusdem generis … .” Id. at 814. The in-
sight we drew from the list was that “[t]he essential character
of conduct that is subject to the physical-restraint guideline …
is depriving a person of his freedom of physical movement.”
No. 18-3057 7
Id. There is more than one way to accomplish that type of dep-
rivation: for instance, we said, knocking someone uncon-
scious with a two-by-four would do the same thing. Id. That
too is a physical act that prevents movement, for as long as
the person is unconscious.
If the Guideline had been meant to apply to all restraints,
it would have said so; instead, it specifies physical restraints.
That limitation rules out psychological coercion, even though
such coercion has the potential to cause someone to freeze in
place. Tellingly, it did not have that effect in Herman’s case—
Kirk and Daniels followed him outside despite his warnings
and their knowledge that he was armed with two guns. But
there is a more general point here: the cases that have found
physical restraint have focused on the action of the defendant,
not on the reaction of the victim. If the defendant ties someone
up, confines someone in a room from which there is no clear
exit, renders the person immobile by knocking her out, or
takes any of a thousand other physical actions against the tar-
geted person that result in a physical limitation on her mobil-
ity, it makes sense to speak of physical restraint. Crucially,
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 phys-
ically 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.
8 No. 18-3057
Words should mean something, and in this case, the fact
that the Guidelines call for physical restraint tells us that not
all restraints warrant the two-level enhancement. Our review
of our earlier decisions suggests that the middle position we
were trying to articulate may have covered too much conduct.
That is not to say, we hasten to add, that those earlier cases
were necessarily wrongly decided—in Doubet, for instance,
the enhancement would apply under the test we adopt today,
not because of the gun alone, but because any victim who is
herded into a separate room and told she may not come out
is restrained by the four walls and whatever mechanism is
used to bar the door, be it a physical lock, a body guard, or an
armed robber.
As a matter of theory, our later cases state that the psycho-
logical coercion of gunpoint is not enough on its own, though
some of them may have allowed the enhancement too liber-
ally. In Taylor, we added in dictum that merely pointing a gun
at someone might suffice. 620 F.3d at 814. United States v.
Carter, 410 F.3d 942 (7th Cir. 2005), came perilously close to
applying section 2B3.1(b)(4)(B) based solely on psychological
coercion. In Carter, the defendant focused his gun on the vic-
tim and “moved her out of the bank’s vault to her drawer
against her will.” Id. at 954. We found that “[t]he sustained
focus of the weapon on the victim coupled with the compelled
movement of the victim to another area constitutes sufficient
forcible restraint to warrant the enhancement.” Id. So far, so
good, maybe. But unlike in Doubet, the victim in Carter was
moved from the back vault to the teller area where she was
presumably less confined. The troublesome language was
this: “[a]s we held in Doubet, ‘[f]orce is not limited to physical
force, but may also encompass the operation of circumstances
that permit no alternative to compliance.’ Here, with Carter’s
No. 18-3057 9
gun pointed at her from only inches away, Martinez had no
alternative but to comply with his instructions to move.” Id.The phrase “operation of circumstances that permit no al-
ternative to compliance” could be understood to cover purely
psychological coercion. We already have explained why we
think that such a rule would not be true to the language of the
Guidelines. A verbal order issued by a person with a threat-
ening appearance might terrify a bank teller, or a person
whose home has been invaded, or a pedestrian who is being
held up at gunpoint. And that terrified person will often yield
to the threats. Yet that does not make the restraint a physical
one.
This does not leave the sentencing judge powerless to take
into account, when crafting the sentence, conduct that ap-
pears to the judge to be the equivalent of a physical restraint.
Unless a statutory maximum constrains the judge’s discre-
tion, the judge is free to consider the psychological coercion
under 18 U.S.C. § 3553(a)(1), as part of “the nature and cir-
cumstances of the offense.” If the use of a gun or something
else to frighten or coerce a victim seems to be just as bad as a
physical restraint, the prosecutor can ask for a sentence that is
just as severe. That, however, is the way to account for the
cases that lack a physical element—not a strained reading of
the Guidelines.
We therefore align ourselves 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). Although ordinarily we do not use
Circuit Rule 40(e) when we are simply lining up on one side
of an established circuit conflict, as we are doing here, this
opinion is in tension with earlier decisions from this court. To
10 No. 18-3057
the extent that those earlier cases allow for the application of
the “physical restraint” enhancement based solely on psycho-
logical coercion—including the coercion of being held at gun
point—we hereby disapprove those holdings. For that reason,
we circulated this opinion to all judges in regular active ser-
vice. A majority of the judges in regular active service voted
not to hear the case en banc; Judges Bauer, Flaum, and Kanne
voted in favor, for the reasons expressed in Judge Flaum’s dis-
senting opinion. In light of the conflicting views on the mean-
ing of U.S.S.G. § 2B3.1(b)(4)(B), we are ordering the Clerk of
Court to send this opinion to the U.S. Sentencing Commission
for its consideration.
We VACATE Herman’s sentence and REMAND his case
for resentencing consistent with this opinion.
BAUER, Circuit Judge, dissenting. I would affirm the district
court for the reasons set out in Judge Flaum’s dissent from the
denial of hearing en banc.
10 No. 18-3057
FLAUM, Circuit Judge, with whom BAUER and KANNE, Cir-
cuit Judges, join, dissenting from the denial of en banc consid-
eration. If a defendant “physically restrained” a person in or-
der to facilitate the commission of or escape from a robbery,
the Sentencing Guidelines provide that a two-level enhance-
ment applies. U.S.S.G. § 2B3.1(b)(4)(B). In my judgment, the
panel’s holding that the enhancement cannot apply if it is
“based solely on psychological coercion—including the coer-
cion of being held at gun point,” ante at 10, is problematic for
three reasons: It is contrary to the Guidelines’ language; it de-
parts from over twenty-five years of this Court’s precedents,
see United States v. Doubet, 969 F.2d 341, 345–48 (7th Cir. 1992),
abrogated on other grounds by United States v. Dunnigan, 507 U.S.
87 (1993); United States v. Carter, 410 F.3d 942, 954 (7th Cir.
2005); United States v. Taylor, 620 F.3d 812, 813–16 (7th Cir.
2010); United States v. Black, 636 F.3d 893, 899–900 (7th Cir.
2011); and it is in direct conflict with four other circuits, see
United States v. Wallace, 461 F.3d 15, 33–35 (1st Cir. 2006);
United States v. Miera, 539 F.3d 1232, 1234–36 (10th Cir. 2008);
United States v. Dimache, 665 F.3d 603, 606–09 (4th Cir. 2011);
United States v. Chandler, 699 F. App’x 863, 865–66 (11th Cir.
2017) (citing United States v. Victor, 719 F.3d 1288, 1290 (11th
Cir. 2013)).
Starting with the language of the Guidelines, the panel’s
argument is as follows: “If [§ 2B3.1(b)(4)(B)] had been meant
to apply to all restraints, it would have said so,” but because
it “specifies physical restraints,” the intention must have been
to limit any restraint that is not physical. Ante at 7. Therefore,
the argument continues, “[t]hat limitation rules out psycho-
logical coercion, even though such coercion has the potential
to cause someone to freeze in place.” Id. However,
§ 2B3.1(b)(4)(B) does not speak of “physical restraints,” only
No. 18-3057 11
the existence of a person who has been “physically re-
strained.” More to the point, I believe the panel’s reasoning
overemphasizes the importance of the word “physical” to the
exclusion of the other words in the Guidelines’ definition of
“physically restrained.”
The Guidelines use “physically restrained” as a term of art
in many sections, not just in § 2B3.1(b)(4)(B). And the Guide-
lines define that term of art in the application notes: “‘Physi-
cally restrained’ means the forcible restraint of the victim such
as by being tied, bound, or locked up.” U.S.S.G. § 1B1.1 cmt.
n.1(L). I fully agree with the panel that “[w]ords should mean
something,” ante at 8, and I find the following dictionary def-
initions helpful in analyzing the plain meaning of the relevant
words in § 2B3.1(b)(4)(B):
• Physically is an adverb that means “[w]ith regard to
the body; in bodily terms or by bodily means.” 1
• Restrained is the past tense of the transitive verb “re-
strain,” which means “[t]o restrict, limit, confine.” 2
As a combined phrase, then, “physically restrained” describes
a state of being where an individual’s control over his body
or bodily means has been limited, restricted, or confined by
1 Physically, Oxford English Dictionary Online,
https://www.oed.com/view/Entry/143126?redirectedFrom=physi-
cally#eid (last visited July 17, 2019).
2 Restrain, Oxford English Dictionary Online,
https://www.oed.com/view/Entry/164002?rskey=qCuFpx&result=1&is-
Advanced=false#eid (last visited July 17, 2019).
12 No. 18-3057
another. Additionally, I find these definitions of the relevant
words in the application note useful:
• Forcible is an adjective that means “[d]one by force,”3
and “by force” means “by employing violence, by vio-
lent means, also under compulsion.” 4
• Restraint is a noun that means “[t]he action or an act of
restraining, checking, or stopping something.” 5
Combining “forcible” and “restraint” to make “forcible re-
straint” describes a violent or coercive action that has the ef-
fect of restraining or stopping an individual’s ability to act.
These descriptions fit well with the Guidelines’ nonex-
haustive list of examples. If a person is tied, bound, or locked
up, the person is “physically restrained” because he has lim-
ited control of his body. Likewise, a defendant engages in
“forcible restraint” if he uses some violent or coercive action
to restrict a person’s ability to act or move. Both of these de-
scriptive phrases are broad enough to encompass the conduct
of a defendant who orders a person at gunpoint not to move.
Returning to the Guidelines’ definition, and reading it as
a whole with these plain meanings in mind, I fail to see how
3 Forcible, Oxford English Dictionary Online,
https://www.oed.com/view/Entry/72891?redirectedFrom=forcible#eid
(last visited July 17, 2019).
4 By force, Oxford English Dictionary Online,
https://www.oed.com/view/Entry/72847?rskey=cjy2jg&result=2&isAd-
vanced=false#eid4006337 (last visited July 17, 2019).
5 Restraint, Oxford English Dictionary Online,
https://www.oed.com/view/Entry/164011?rskey=NunL40&result=1&is-
Advanced=false#eid (last visited July 17, 2019).
No. 18-3057 13
a defendant who points a gun at a person and instructs him
not to move has not “physically restrained” the person. The
act of commanding someone at gunpoint not to move is cer-
tainly forcible—an act of violence or coercion—and the tar-
geted individual is physically restrained because he does not
have control over his body or bodily means.
The panel’s response to this position is that any restraint
that occurs when a defendant gives an order at gunpoint is
caused by “the way the victim decided to respond to the or-
der” and that the victim’s “physical response to the defend-
ant’s attempt to coerce … is not something that logically be-
longs within the scope of the physical-restraint guideline.”
Ante at 7. The panel also says that the victim who receives an
order at gunpoint “might obey; she might ignore it; or she
might attempt to flee,” and therefore, the defendant who
made that order and pointed that gun is unlike a defendant
who “ties someone up, confines someone in a room from
which there is no clear exit, renders the person immobile by
knocking her out, or takes any of a thousand other physical
actions against the targeted person that result in a physical
limitation on her mobility.” Id. I suggest such reasoning is di-
vorced from reality. Just as a person can flee from a pointed
gun, a person can break ties or binding or escape from a
locked up room. This does not mean she is not physically re-
strained.
Our prior cases, beginning with Doubet, consistently re-
jected such literal interpretations of the Guidelines’ language.
In Doubet, the defendant led three bank tellers into a small re-
stroom and, as he carried a sawed-off shotgun, threatened
that if they peeked outside, he would blow their heads off. 969
F.2d at 346. The defendant argued on appeal that he did not
14 No. 18-3057
physically restrain the tellers because he never touched or
bound them, and they could have left because they were in an
unlocked bathroom, near an unguarded exit. Id. We rejected
that argument as premised on an “overly literal” and “overly
restrictive” reading of “physically restrained.” Id. Since the
Guidelines include a nonexhaustive list of qualifying condi-
tions—being tied, bound, or locked up—we reasoned it was
clear that there were other actions a defendant could take to
warrant the enhancement. Id. at 346–47. And given that the
Guidelines define physically restrained as “the forcible re-
straint of the victim,” we also observed that “force” includes
“the operation of circumstances that permit no alternative to
compliance” and is not limited to physical force. Id. at 347(quoting The American Heritage Dictionary of the English
Language at 513 (10th ed. 1981)). Ultimately, we held that the
defendant’s actions rose to the level of a “figurative lock and
key” that constituted a physical restraint, and we affirmed the
application of the enhancement. Id. We acknowledged there
was a limit to the type of conduct that would suffice under the
Guidelines—a defendant’s act of restraining a person needed
to add something to the offense. Id. at 346. For example, we
doubted that the act of directing people to one part of a room
and ordering them not to move would be enough. Id.Next, in Carter, where the defendant forced a teller from
the bank’s vault to the teller drawer at gunpoint, we applied
Doubet and noted that physical or forcible restraint only exists
when “something more” than an order not to move occurs.
410 F.3d at 954. We held that the combination of the defend-
ant’s “sustained focus of the weapon on the victim” and the
“compelled movement of the victim” was that “something
more.” Id. And because the teller had “no alternative but to
No. 18-3057 15
comply with [the defendant’s] instructions,” we concluded
the enhancement applied. Id.Finally, we declined to overrule Doubet and Carter in Taylor
and Black, both of which arose out of a bank robbery where
two defendants guarded the lobby, the third ordered a teller
at gunpoint to open her money drawer, and the fourth or-
dered another teller at gunpoint to move to different places in
the bank. 6 In both cases, we reaffirmed our broad interpreta-
tion of the enhancement. Taylor, 620 F.3d at 814 (“The essential
character of conduct that is subject to the physical-restraint
guideline … is depriving a person of his freedom of physical
movement, and this can be accomplished by means other than
creating a physical barrier to movement.” (citations omitted));
Black, 636 F.3d at 900 (“[T]he fundamental characteristic of the
physical restraint enhancement is to punish one for depriving
a person of his freedom of physical movement, which can be
accomplished by means beyond [the] statutory examples.”).
I question the panel’s assertion that our Court had been
“looking for something that tells us on which side of the line
that divides psychological coercion from physical restraint a
given case falls.” Ante at 6. Our cases have made clear that
when we are deciding whether to apply the enhancement, we
consider the entirety of the “physically restrained” definition.
Accordingly, we have understood the Guidelines’ list of ex-
amples—being tied, bound, or locked up—as instructive but
6 The district court in each case based its enhancement decision on the
fourth defendant’s actions, which the courts deemed “relevant conduct”
of all four defendants. Taylor, 620 F.3d at 813 (citing U.S.S.G.
§ 1B1.3(a)(1)(B)); Black, 636 F.3d at 899 n.2 (same).
16 No. 18-3057
not limiting, and any challenge to the application of the en-
hancement premised on an argument that the defendant did
not touch or confine a person has failed. Though we have re-
quired “something more” than ordering a person to move
from one location to another, we stated that this standard is
satisfied when a defendant’s conduct permits no alternative
but compliance with the defendant’s command, such as when
the defendant issues the command while pointing a gun. I be-
lieve the panel should have applied this approach here, rather
than create an unnecessary bright-line rule that is not sup-
ported by the Guidelines’ definition of “physically re-
strained.”
As noted above, the panel’s decision directly conflicts with
the First, Fourth, Tenth, and Eleventh Circuits, which hold
that ordering a person at gunpoint not to move is enough for
the enhancement to apply. Additionally, because the panel
characterized as “troublesome” Carter’s standard that forcible
restraint exists when there is no alternative but compliance,
ante at 8, it creates tension with three other circuits that have
not decided this precise issue. These circuits cite Doubet ap-
provingly and read “physically restrained” broadly enough
to encompass any conduct that leaves the targeted person
with no alternative but compliance. See United States v. Cole-
man, 664 F.3d 1047, 1049–51 (6th Cir. 2012); United States v. Ste-
vens, 580 F.3d 718, 720–21 (8th Cir. 2009); United States v. Co-
penhaver, 185 F.3d 178, 182–83 (3d Cir. 1999).
In sum, a person who encounters an armed robber is not
necessarily physically restrained. Indeed, a person is not
physically restrained if “an armed robber simply orders his
victims not to move during an armed robbery” without actu-
ally pointing his gun at the victim, see Carter, 410 F.3d at 954,
No. 18-3057 17
nor if a robber “simply walk[s] up to the teller’s station with
a gun visible in his waistband and demand[s] money.” Taylor,
620 F.3d at 815 (quoting Miera, 539 F.3d at 1236). However,
pointing a gun at a person and demanding stillness is the fig-
urative equivalent of tying, binding, or locking up a person.
In each of these scenarios, the offender takes some action to
facilitate the commission of or escape from a robbery that has
the effect of forcibly restraining a person.
I respectfully dissent from the denial of en banc consider-
ation.