Divided Third Circuit panel reverses application of sentencing enhancement for physical restraint

US v. Bell—criminal sentencing—partial reversal—Greenaway, Jr.

The Sentencing Guidelines provide for a two-level enhancement if a robbery defendant “physically restrained” someone to facilitate the crime or escape. In this case, the defendant “physically confronted a store employee, by grabbing the employee’s neck, pointing [a fake gun] at his neck, and throwing the employee to the ground,” and, when the employee fought back, the defendant hit him with the fake gun and broke it. The district court imposed the enhancement for physical restraint, ultimately sentencing the man to over seven years in prison.

Today, the Third Circuit reversed, holding that applying the physical-restraint enhancement on these facts was error. The court (1) held that its review standard was de novo, (2) set out five factors courts deciding whether to apply the enhancement must balance, and (3) held that, balancing those five factors, imposing the enhancement was error. “If we apply the enhancement here,” the majority explained, “then any crime that involves a chance encounter with a victim with any physical dimension would require application of the enhancement.”

Judge Chagares dissented, arguing that the court’s review should be for clear error and that application of the enhancement wasn’t clearly erroneous because using force to try to confine the employee to the floor constituted physical restraint.

The defendant also challenged another enhancement, for “otherwise us[ing]” a dangerous weapon, but all three panel members agree that his challenge was foreclosed by prior precedent.

Joining Greenaway, Jr. were Ambro in full and Chagares in part; Chagares dissented in part. Arguing counsel were George Newman of Philadelphia for the defendant and Bernadette McKeon of the EDPA US Attorney’s office for the government.

[UPDATE: the court issued a revised opinion, now linked at the top of this post, “to correct a mis-numbering of the sections.” The old one is here.]