By: WISCONSIN LAW JOURNAL STAFF//March 7, 2011//
Sentencing
Physical restraint enhancement
Ordering and leading around a bank teller at gunpoint during a bank robbery warrants a physical restraint enhancement.
“Black maintains the court should have followed the principle derived from Begay v. United States that when Congress or the Sentencing Commission have defined a term by way of a list of examples, those examples serve as a limitation on the definition. Begay v. United States, 553 U.S. 137, 143 (2008). Black thus argues that conduct does not constitute physical restraint unless it is relatively identical to the examples listed in defining the term, specifically tying, binding, or locking up the victim. In fact, we explicitly rejected the same argument from Black’s accomplice Marty Taylor in United States v. Taylor, a decision that Black urges us to now overrule.
We decline to do so. While a statutory list of examples can indicate the statute’s intended scope, the 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 those statutory examples. See Taylor, 620 F.3d at 814. We have found that ‘[w]hether a pointed gun is used to move a person into an unlocked room and keep him there, or used to move a person from one part of the robbery scene to another, the person’s freedom of movement is restrained as effectively as by shoving or dragging him into a room and locking the door.’ Id. at 815 (citing United States v. Carter, 410 F.3d 942, 954 (7th Cir. 2005)). Today we reaffirm United States v. Taylor and again find that Black’s accomplice’s actions during the robbery constitute physical restraint. We affirm Black’s physical restraint enhancement.”
Affirmed.
10-1721 U.S. v. Black
Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Bauer, J.