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Second Circuit Clarifies What Constitutes ‘Possession of a Dangerous Weapon’ and ‘Physical Restraint’ Under the Guidelines

The two issues came before the Court after Xavier Oneal pleaded guilty and was sentenced in 2018 for one count of Hobbs Act robbery, under 18 U.S.C. § 1951, by the U.S. District Court for the Eastern District of New York. He robbed a string of cellphone stores until he was caught by a bystander who happened to be a police officer. Each of the robberies was carried out in the same manner: Oneal and his codefendants would fake as though they had weapons in their waistbands and stole mostly cellphone inventory and some cash after ordering bystanders into a room.

Oneal’s presentence investigation report (“PSR”) called for several enhancements, two of which Oneal challenged. One was for possession of a dangerous weapon for faking that he had a gun in his waistband, and the other was for ordering the bystanders to get in a back room during the robbery. The district court overruled his objections and found that both enhancements applied. However, the court found the Guidelines sentencing range (“GSR”) of 130 to 162 months overrepresented his criminal history and opted for a lower criminal history score. The court then imposed a sentence even below the adjusted GSR, sentencing Oneal to seven years in prison.

On appeal, Oneal argued that the two enhancements were wrong and that his GSR of 57 to 71 months estimated in his plea agreement without the enhancements was more accurate. Under USSG § 2B3.1(b)(2)(E), a three-level enhancement applies “if a dangerous weapon was brandished or possessed during a robbery.” While Oneal didn’t possess a weapon, the Guideline specifically says that use of an object “that created the impression that the object was” a dangerous weapon also counts. The example given in the Guidelines is when “a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun.”

Did Oneal use his hand in a manner that mimicked a gun, when he put his hand “near” his waistband as if he had a gun there? Use of an object as a stand-in for a weapon and a mere gesture to imply possession of a weapon are two different things under the Guideline, the Second Circuit explained. Oneal’s actions could not meet the enhancement for possession of a weapon, the Court concluded.

The Court reasoned that permitting the application of the dangerous weapon enhancement based on a suggestive gesture alone “would seem to erase the distinction between that enhancement and the next enhancement in the sequence” under the Guidelines, which would be a two-level enhancement for making a “threat” by mere gesture.

The Court concluded that the PSR lacked the facts necessary to decide whether the three-level enhancement applied to Oneal and remanded for further factfinding by the district court on whether it or another enhancement could apply.

The second issue was a question of first impression before the Court: whether having bystanders move to another room qualifies as “physical restraint,” under USSG § 2B3.1(b)(4)(B), for a two-level enhancement. The Guidelines defines “physical restraint” as “forcible restraint of the victim such as being tied, bound, or locked up.”

The Court cautioned that this enhancement must be “interpreted narrowly lest it instead increase the Guidelines’ base offense level, in what one would expect to be the considerable majority of robbery cases, from 20 to 22.”

Pulling a gun and telling people to get down and not move isn’t enough, the Court reiterated from its prior holdings. And neither is giving an order to move to another room that would be “typical of most robberies.” Again, the Court cautioned that an overly-broad interpretation of the enhancement would raise the base offense level of nearly every robbery by two levels.

Oneal’s direction for bystanders to move to a back room, without more, was not enough for the physical restraint enhancement, the Court concluded. Such an order would only qualify if he had “physically restrained victims in that room,” the Court said.

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