By: Derek Hawkins//March 19, 2018//
7th Circuit Court of Appeals
Case Name: United States of America v. Joshua Herman
Case No.: 17-1423
Officials: WOOD, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.
Focus: Sentencing Guidelines and Statutory Interpretation
This case involves the coordination of sentencing between federal and state courts. The underlying facts are straightforward. On May 4, 2016, Joshua Herman, a member of the Latin Dragons gang, visited the home of Jacob Kirk and Samantha Daniels. At some point during his visit, Herman asked if he could hold Daniels’s handgun, which he noticed was sticking out of a bright pink case in her purse. As soon as Daniels obliged, Herman pulled out a second gun, pointed both weapons at Daniels and Kirk, ordered them not to move, and then fled the house with the guns. Daniels and Kirk chased him outside, whereupon Herman turned around and shot at them. He then hopped into a getaway car and sped off.
Herman was arrested for his crime and pleaded guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g). Among other sentencing adjustments, the district court imposed a two-level enhancement in his offense level for the use of physical restraint, U.S.S.G. § 2B3.1(b)(4)(B), on the theory that Herman “restrained” the victims when he pointed the guns at them and ordered them to stay put. Herman was ultimately sentenced to 120 months in prison, which was both the bottom of his guidelines range and the statutory maximum.
On appeal, Herman raises two challenges to his sentence. First, he argues that the district court failed to recognize its own discretion when it said that it could not require Herman’s federal sentence to run concurrently with his state sentence. Second, he argues—for the first time—that pointing a gun at someone and telling her not to move does not count as “physically restraining” her under U.S.S.G. § 2B3.1(b)(4)(B). Because we conclude that Herman is entitled to be resentenced based on his first argument, we need not consider his second.
For these reasons, the sentence imposed by the district court is VACATED and REMANDED for further proceedings consistent with this opinion. On remand, the district court should consider Herman’s argument that the physical restraint enhancement does not apply to him, as well as any other arguments not resolved in this appeal.
Vacated and Remanded