Eleventh Circuit Upholds Sentence Enhancement for Physical Restraint With Implied Gun – U.S. v. Victor

July 10, 2013 by David S. Seltzer

The Eleventh U.S. Circuit Court of Appeals, the appeals court that covers Florida, recently made a decision in a robbery case with an interesting dispute. In U.S. v. Victor, Larry Victor pleaded guilty to bank robbery, but objected to a sentence enhancement for physically restraining a victim. Victor and an accomplice robbed a bank in Pembroke Pines, in South Florida, with Victor using what appeared to be a gun. The enhancement was applied for “restraining” a bank lobby employee by threatening to shoot her, though Victor never actually touched her physically. He objected at sentencing to the use of the sentence enhancement, but to no avail. The Eleventh Circuit upheld the lower court’s decision, finding that he did restrain the victim within the Guidelines’ meaning.

Victor entered the lobby of a credit union alone on the date of the robbery, holding something in his jacket as if it were a gun. In reality, it was just the clip from an assault rifle. He held the “gun” on a lobby employee and directed her toward the tellers, where he yelled that he would kill employees who did not comply and then demanded money. The tellers gathered money for him while someone else called the police. He fled in a car driven by an accomplice and, after police started chasing them, brandished the actual assault rifle at the officers chasing them. He ultimately pleaded guilty to bank robbery and to brandishing the rifle. After addition of sentence enhancements including one for physically restraining a person, the robbery charge had a Guidelines range of between three and four years of imprisonment. Victor objected to the restraint enhancement, arguing that he never touched the employee and only moved her a few steps, but he was overruled.

On appeal, the Eleventh Circuit upheld that ruling. The relevant section of the guidelines “provides an enhancement for robberies where a victim was… physically restrained by being tied, bound, or locked up,” it noted. However, the court also noted 20 years of decisions in which it applied the enhancement for conduct that ensured compliance and effectively prevented victims from leaving some location. Thus, it found, Victor’s conduct was within the meaning of the enhancement for physical restraint. It was immaterial that she didn’t go far, the court noted; no movement at all is required by the Guidelines. Nor is it material that he was not actually armed, the court said; he clearly intended to make the victim believe he was. The court further ruled that Victor’s sentence was not unreasonable for failing to depart downward from the Guidelines.

The Eleventh Circuit didn’t go into details about its past cases determining that physical restraint doesn’t necessarily require that the victim be “tied, bound, or locked up.” As a criminal defense attorney, I would have preferred a more detailed analysis of what exactly it means to restrain someone within the meaning of the sentencing guidelines. If Congress or the Sentencing Commission didn’t imagine “restraint” to include having a gun held on you, it seems unfair to create that meaning through court decisions. After all, one of the purported reasons for harsh sentences for armed robberies like this is deterrence, and a sentence that can’t be accurately predicted is not a deterrent.

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