Submitted May 28, 2019 [*]
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.
Wood, Chief Judge, and Bauer and Easterbrook, Circuit Judges.
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.
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."
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
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.
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).
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.
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
U.S.S.G. § 1B1.1, cmt. n.l(L).
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 ...