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Court Restrains Improper Application of “Physical Restraint” Enhancement

In United States v. Paul, the Second Circuit (Newman and Pooler Circuit Judges, and Cote, J., by designation) issued an opinion interpreting the meaning of the phrase “physically restrained” during a commission of a crime for the purpose of applying the physical restraint enhancement set forth in Sentencing Guidelines Section 2B3.1.

Wensley Paul was sentenced to 108 months of imprisonment for his role in a robbery and a firearms offense.  During the commission of the robbery, one of Paul’s confederates ordered the store clerk at gunpoint to go to the cash register. As a result, the District Court added a two-level physical restraint enhancement in calculating Paul’s sentencing range under the United States Sentencing Guidelines. At the sentencing hearing, the District Court considered and rejected Paul’s objection to the physical restraint enhancement relying on an application note to the Guidelines that provides for a two-level increase in the base offense level “if a threat of death was made.”

In interpreting the meaning of physical restraint under Section 2B3.1(b)(4)(B), the Second Circuit needed to first review application note 1(K) to subsection 1B1.1 of the Guidelines, which defines “‘physically restrained’ [to] mean[] the forcible restraint of the victim such as by being tied, bound, or locked up.”  U.S.S.G. § 1B1.1., Application note 1(K). The Court then reviewed case law from this and other circuits that emphasized that for the physical restraint enhancement to apply, the restraint must in fact be physical and that ordering a victim to lie down or merely not move does not trigger the enhancement. Applying this precedent to the facts of the case, the Second Circuit observed that Paul and his confederates did not physically restrain the store clerk, such as binding her or moving her into a locked or confining space. Rather, the order given to the store clerk to move to the cash register was “typical of most store robberies.” The Second Circuit decided that the enhancement was not justified and remanded the case to the District Court with directions to calculate an adjusted offense level without the enhancement for physical restraint.

It is interesting to note that Paul’s initial sentence of 108 months imposed by the District Court was already below the applicable Guidelines sentencing range, suggesting that perhaps the reduced Guidelines range might not result in a reduced sentence.  The Second Circuit, however, explained that in light of the admonition from the Supreme Court in United States v. Gall, 552 U.S. 38, 40 (2007) that every sentencing should begin with a correct Guidelines calculation, the Second Circuit must ensure that the District Court properly calculated the Guidelines range, even where the sentence fell outside the Guidelines.  A district judge might be able to prevent a remand if it explained that regardless of how the particular Guidelines issue was resolved, it would impose the same sentence. See generally United States v. Bermingham, 855 F.2d 925, 934-35 (2d Cir. 1988) (“As long as the sentencing judge is satisfied that the same sentence would have been imposed no matter which of the two guideline ranges applies, the sentence should stand.”). But that did not happen here and indeed does not happen often, since the Guidelines remain an important sentencing factor even after Booker.

-By Julia Stepanova and Harry Sandick