Second Circuit Criminal Law Blog

Plea Agreement Not Violated, But Sentence Vacated and Remanded for Reconsideration of Hobbs Act Robbery Enhancements

In United States v. Oneal, 18-1710 (May 27, 2020) (Katzmann, Kearse, Bianco), the Second Circuit limited the scope of the Hobbs Act robbery Sentencing Guidelines enhancements for possessing a dangerous weapon and for physical restraint, vacating and remanding for consideration of whether the enhancements applied under the strict standards announced by the court.  However, the court rejected Defendant-Appellant Xavier Oneal’s argument that the government had violated the terms of his plea agreement by siding with the Probation Office’s recommendation that the enhancements applied, even after not including the enhancements in its pre-plea Guidelines stipulation with the defendant.  On remand, given the law and the facts in the panel’s opinion, it would appear that the defendant may receive a reduced sentence.


In 2015, Oneal, along with co-conspirators, participated in a string of similar robberies of cell phone stores.  In the first, Oneal entered a T-Mobile store, acted like he had a firearm in his waistband by putting his hand in that area, told the store’s occupants not to try anything stupid, and pushed a store employee into an inventory room.  He then put merchandise into a bag before fleeing the store on foot.  In the second, Oneal and others robbed a different T-Mobile store, with Oneal once again keeping his hand near his waistband as if he had a firearm.  He forced two employees into the back, had them fill bags with merchandise, and then fled on foot.  During a third T-Mobile store robbery, Oneal and another pretended to possess firearms by holding their belts.  They then “herded” the employees and customers into a back room, had an employee open a safe from which they stole $300, and also took merchandise.  Finally, Oneal was arrested during an attempted robbery of a Verizon store when one of the customers happened to be a police officer.

In 2016, Oneal pleaded guilty to one count of Hobbs Act robbery conspiracy.  In the plea agreement, the government calculated the Guidelines range as between 57 to 71 months’ imprisonment, asserting that several enhancements would be applicable but excluded enhancements for possessing a dangerous weapon and for physical restraint.  The plea agreement included a disclaimer that the Guidelines calculations were estimates, and that Oneal would not be able to withdraw his plea if the Guidelines calculations were determined by the Probation Department or the court to be inaccurate.  Indeed, in its Pre-Sentence Report (“PSR”), the Probation Department asserted that those two enhancements applied, and also concluded that Oneal was in a higher criminal history category, resulting in a Guidelines range of 130 to 162 months.  In its sentencing submission, the government asserted that the PSR’s calculation was correct, including with respect to the enhancements, but asked that he be sentenced in the range of 92 to 115 months, calculated from the offense level as set forth in the plea agreement (i.e., without the enhancement for possessing a dangerous weapon and for physical restraint), but with the corrected criminal history category as set forth in the PSR.

At sentencing, the district court rejected Oneal’s objections to the dangerous weapon and physical restraint enhancements.  However, the court found that the revised criminal history category was overstated, and varied downwards to the original criminal history category set forth in the plea agreement, resulting in a range of 100 to 125 months, and sentenced Oneal to a below-Guidelines sentence of 84 months’ imprisonment. 

On appeal to the Second Circuit, Oneal challenged the application of the dangerous weapon and physical restraint enhancement, and also argued for the first time that the government’s agreement with the PSR’s conclusion that these enhancements applied violated its obligations under the terms of the plea agreement.

Dangerous Weapon Enhancement

A three-level enhancement applies if, during a Hobbs Act robbery, “a dangerous weapon was brandished or possessed.”  U.S.S.G. § 2B3.1(b)(2)(E).  Generally, a “dangerous weapon” is defined as “an instrument capable of inflicting death or serious bodily injury,” but according to the Guidelines application notes (to which the court ordinarily gives controlling weight), “an object shall [also] be considered to be a dangerous weapon . . . if . . . the defendant used the object in a manner that created the impression that the object was an instrument capable of inflicting death or serious bodily injury (e.g., a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun).”  Id. § 2B3.1, cmt. n.2. 

The Circuit proceeded to engage in a detailed analysis of “when a hand becomes a qualifying object for purposes of the enhancement.”  Ultimately, the court concluded that a hand qualifies as such only when the defendant gives the impression that the hand itself is the weapon, and not when the defendant uses the hand to “suggest possession of a separate dangerous weapon.”  (Slip Op. at 16).  According to the Second Circuit, in this case, there was insufficient evidence that Oneal suggested to employees and patrons that his hand itself was a gun; to the contrary, the limited evidence suggested that Oneal instead used his hand to suggest that he had a separate weapon, i.e., a gun, in his waistband.  The court remanded for further fact-finding on the matter in order to permit a determination of whether Oneal “concealed his hand such that his hand appeared to be a dangerous weapon.”

Physical Restraint Enhancement

Under the Guidelines, a two-level enhancement applies if “any person was physically restrained to facilitate commission of the [Hobbs Act robbery] or to facilitate escape.”  U.S.S.G. § 2B3.1(b)(4)(B).  The Guidelines application notes define “physically restrained” as “the forcible restraint of the victim such as being tied up, bound, or locked up.”  Id. § 1B1.1, cmt n.1(L).  Under existing Circuit president, in considering whether the enhancement apply, district courts must find that each of the following factors weighs in favor of application:  “(1) whether the restraint was physical, (2) whether there was restraint rather than just use of force, and (3) whether the action in question was constitutive of robbery or whether it was an additional physical restraint that facilitated the robbery.”  (Slip Op. at 25).  These factors are designed to ensure narrow application of the enhancement to avoid every robbery—an offense that inherently involves some level of restraint—qualifying for the enhancement.  

Under existing Circuit precedent, immobilizing a robbery victim by stepping on his throat triggered the enhancement, see United States v. Rosario, 7 F.3df 319, 321 (2d Cir. 1993) (per curiam), but displaying a gun and telling people to get down and not move did not, as there was no physical immobilization, see United States v. Anglin, 154 F.3d 154, 164–65 (2d Cir. 1999), nor did ordering a store clerk to go behind the counter to get cash from the register, see United States v. Paul, 904 F.3d 200, 204 (2d Cir. 2018).  In Paul, the Circuit explained that “in the absence of physical restraint similar to being bound or moved into a locked or at least a confining space, the enhancement is not to be added where the direction to move is typical of most robberies.”  Paul, 904 F.3d at 204. 

Applying the law to this case, the court concluded that it did not appear on the limited facts before it that the first, second, and fourth robberies qualified for the enhancement under Paul, as forcing employees into the back of the store where the merchandise was stored “is typical of most robberies.”  However, the court left open the possibility that Oneal’s conduct in the third robbery—“herding” employees and customers into a back room—might have involved “physical restraint,” although (in line with several other circuits) it clarified that “herding victims into a defined area without then physically restraining them in that area does not, in and of itself, constitute physical restraint.”  (Slip Op. at 27–28).  On remand, the district court is directed to consider whether, during any of the robberies, those “herded” into a different room were also “physically prevented from leaving [that room] for any period of time.”  (Slip Op. at 28).

Breach of Plea Agreement

Finally, applying plain error review, the court rejected Oneal’s argument that the government breached the plea agreement “by stating, in its . . . sentencing submission, that the PSR was ‘correct’ to apply the dangerous weapon and physical restraint enhancement,” when it had not contended that that enhancement applied in the plea agreement.   (Slip Op. at 31).  As noted above, the government nevertheless asked the district court to apply the offense level as calculated in the plea agreement (i.e., without the dangerous weapon and physical restrain enhancements).  While the panel appeared to believe that the government should not have weighed in at all under the terms of the plea agreement, the fact that it expressly declined to advocate for the application of the two factors prevented the court from finding “clear or obvious” error.


While it may seem that the court got deep into the weeds—particularly in its discussion of when a hand qualifies as a dangerous weapon for Guidelines purpose—its careful analysis appears to reflect a concern that liberal application of the dangerous weapon and physical restraint enhancements could lead to offense level enhancements in far too many Hobbs Act robbery cases.  Based on the factual rendition and legal analysis in the Court’s opinion, we predict that it will be difficult for the district court to impose these enhancements.  In particular, the physical restraint enhancement seems inapt—no one was tied up in these robberies, just told to move from one room to another.  The government typically seeks to impose every readily provable Guidelines enhancement, and so its decision in the plea agreement not to seek these two enhancements suggests they are marginal at best.  With respect to the breach of plea agreement issue, the court seemed to go out of its way to avoid saying that the government acted properly when forced to decide whether to endorse the PSR’s recommendation; perhaps the government will be less lucky on a subsequent appeal.  When all is said and done, it would not be a surprise to see Oneal get a reduced sentence on remand due to a reduced Guidelines range, even though he did receive a 16-month downward departure in his initial sentencing.

By Ryan J. Kurtz and Harry Sandick.