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United States v. Herman

United States Court of Appeals, Seventh Circuit

July 18, 2019

United States of America, Plaintiff-Appellee,
Joshua T. Herman, Defendant-Appellant.

          Submitted May 28, 2019 [*]

          Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:16-CR-00061-JTM-PRC-1 - James T. Moody, Judge.

          Before Wood, Chief Judge, and Bauer and Easterbrook, Circuit Judges.

          WOOD, CHIEF JUDGE.

         This is the second time we have been asked to review the sentence that Joshua Herman received after pleading guilty to violating 18 U.S.C. § 922(g), which prohibits felons from possessing a firearm. Herman raised two issues on his first appeal: one concerned the district court's failure to recognize that it had the discretion to require Herman's federal sentence to run concurrently with an unrelated state sentence that had yet to be imposed; and the other related to the proper interpretation of U.S.S.G. § 2B3.1(b)(4)(B), which dictates that a person's offense level for robbery must be increased by two if he "physically restrained" the victim. United States v. Herman, 884 F.3d 705, 706 (7th Cir. 2018). (That guideline applied because Herman possessed the firearm in connection with a robbery. See U.S.S.G. § 2K2.l(c)(1)(A).) We found it necessary to reach only the first issue, which we resolved in Herman's favor. We ended our opinion by noting that "[o]n remand, the district court should consider Herman's argument that the physical restraint enhancement does not apply to him ... ." Herman, 884 F.3d at 708.

         Before we address the district court's response on remand, it is helpful to outline the facts that gave rise to this aspect of the case. On May 4, 2016, Jacob Kirk invited Herman to Kirk's house on 178th Street in Hammond, Indiana. Kirk's mother, Samantha Daniels, also lived at the house. When Kirk and Herman arrived, they saw that Daniels had a Jimenez Arms handgun partially tucked into her purse. Somewhat reluctantly, she allowed Herman to handle the gun for a moment. At that point Herman pulled out a revolver and said "Look ... stay seated. I don't want to blow you guys back, but I will if I have to." He instructed Kirk and Daniels not to move, and then turned and ran outside. Kirk and Daniels ignored Herman's order and pursued him. Herman spun around, with the Jimenez Arms gun in one hand and the revolver in the other and fired a shot that flew past Daniels's head. Kirk recalled that just before Herman fired, Kirk heard him say "I told you not to ... /' and then there was a "boom."

         The district court ordered briefing on the question whether the actions of pointing and shooting the gun qualified as physical restraint of the two victims, Kirk and Daniels. It noted that there is a circuit split on this issue. After holding a resentencing hearing, the court-relying on the information in the initial presentence report (PSR) and addendum-concluded:

Defense counsel's objections are not well-taken, so they're overruled. I adopt the positions of the government and the probation officer as set forth in the addendum, and I reject the position of defense counsel.

         Contrary to Herman's contention on appeal, this was enough. The court was entitled to adopt the government's version of events, as set forth in the PSR, to explain its ruling on a disputed point that had been thoroughly explored. Fed R. Crim. P. 32(i)(3); see United States v. Canino, 949 F.2d 928, 951 (7th Cir. 1991).

         The court calculated Herman's guidelines range as follows: to the base offense level of 20, it added seven levels because a firearm was discharged, U.S.S.G. § 2B3.1(b)(2)(A); it added another level because a firearm was taken, id. § 2B3.1(b)(6); it added two levels based on the finding that Herman physically restrained the victims, id. § 2B3.1(b)(4)(B); and it subtracted three levels for acceptance of responsibility, id. § 3E1.1. This resulted in a final offense level of 27. Herman's criminal history level was V; this initially led to a recommended guidelines range of 120 to 150 months. Because 120 months was the statutory maximum, however, the final guidelines result was not a range but a point: 120 months. See U.S.S.G. § 5Gl.l(c). As it had done before, the court imposed exactly that sentence on him. Had it rejected the use of the physical-restraint enhancement, the final offense level would have been 25, and the recommended range 100 to 120 months. On appeal, Herman is asking for a remand for resentencing under the latter range.

         The guideline at the center of this case is section 2B3.1, which covers the offense of Robbery. It calls for a base offense level of 20, and then addresses various specific offense characteristics that cause the level to go up. The subsection of interest to us reads as follows:

(4) ... (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape, increase by 2 levels.
The Application Notes direct us to the Commentary on section 1B1.1 for a definition of the term "physically restrained." There we find the following:
"Physically restrained" means the forcible restraint of the victim such as by being tied, bound, or locked up.

U.S.S.G. § 1B1.1, cmt. n.l(L).

         As the district court recognized, our sister circuits have split on the question whether the physical-restraint enhancement can be applied to situations in which an armed defendant simply orders his victims not to move and does not otherwise immobilize them through measures such as those outlined in the commentary to U.S.S.G. § 1B1.1. The government counts four circuits that take the position that pointing a gun at a person and commanding her not to move is enough to constitute a "physical restraint/' and four that say this is not enough. Compare United States v. Dimache,665 F.3d 603, 606-07 (4th Cir. 2011) (enough); United States v. Miera,539 F.3d 1232, 1234-36 (10th Cir. 2008) (enough); United States v. Wallace, 461 F.3d 15, 33-34 (1st Cir. 2006) (enough); and United States v. Gonzalez,183 F.3d 1315, 1327 (11th Cir. 1999) (enough); with United States v. Parker, 241 F.3d 1114, 1118 (9th Cir. 2001) (more needed); United States v. Drew,200 ...

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