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Seventh Circuit Announces That More Than Psychological Coercion Required to Trigger § 2B3.1(b)(4)(B) Sentencing Enhancement, Disapproving Prior Holdings to the Contrary

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit announced that something more than psychological coercion is required before a sentencing court can apply the two-level enhancement of U.S.S.G. § 2B3.1(b)(4)(B).

Jacob Kirk invited Joshua Herman to Kirk’s house in Hammond, Indiana. Samantha Daniels, Kirk’s mother, was in the house when the men arrived. Herman saw a Jiminez Arms handgun in Daniels’ purse and asked Daniels if he could hold it. After taking it into his hand, 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 told Kirk and Daniels not to move and then ran outside. Kirk and Daniels ignored Herman’s order and chased him outside. Herman spun around with a pistol in each hand, yelled, “I told you not to ...” and fired a shot that flew past Daniels’ head.

After pleading guilty, Herman appealed. For reasons not relevant to the instant appeal, the Seventh Circuit remanded. On remand, the district court calculated Herman’s final offense level at 27 with a Guidelines range of 120 to 150 months. Herman objected on the grounds that the court had incorrectly added a two-level increase due to improperly applying U.S.S.G. § 2B3.1(b)(4)(B). Herman argued his offense level should in fact be 25 with a Guidelines range of 100 to 120 months. The court rejected Herman’s argument, and he appealed.

The Seventh Circuit observed that the Guideline provides for a two-level increase “if any person was physically restrained to facilitate commission of the offense ....” And “[p]hysically restrained means the forcible restraint of the victim such as being tied, bound, or locked up.” U.S.S.G. § 1B1.1, cmt. n.1(L).

The Court recognized a split among the circuits on whether the two-level increase can be applied in situations where an armed defendant merely orders his victims not to move without otherwise physically restraining them. Four circuits hold that pointing a gun and commanding a victim not to move constitutes physical restraint: the First, Fourth, Tenth, and Eleventh circuits take that position. But the Second, Fifth, Ninth, and D.C. circuits hold that more is needed to constitute physical restraint. The Seventh Circuit announced it is aligning with the latter four circuits that require more than pointing a gun at someone and ordering that person not to move in order to trigger the application of U.S.S.G. § 2B3.1(b)(4)(B). The Court recommended that district courts instead consider 18 U.S.C. § 3553(a)(1) as part of “the nature and circumstances of the offense” whenever a defendant uses a gun to coerce a victim. Accordingly, the Court vacated Herman’s sentence and remanded for resentencing consistent with its opinion.

The Court acknowledged that in United States v. Doubet, 969 F.2d 341 (7th Cir. 1992); United States v. Taylor, 620 F.3d 812 (7th Cir. 2010); United States v. Carter, 410 F.3d 942 (2005), there is language implying that psychological coercion based solely on pointing a gun at a victim suffices.

However, the Court expressly disapproved those holdings pursuant to Circuit Rule 40(e). Because the instant holding was in tension with prior holdings, the Seventh Circuit ordered the opinion circulated to all circuit judges in regular active service. Additionally, in light of the split among the circuits, a copy of the opinion was sent to the U.S. Sentencing Commission. See: United States v. Herman, 930 F.3d 872 (7th Cir. 2019). 

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