Skip navigation
The Habeas Citebook: Prosecutorial Misconduct - Header
× You have 2 more free articles available this month. Subscribe today.

Sixth Circuit: Unarmed Bank Robber Who Ordered Tellers to Get on the Floor Not Subject to Enhancement for Physical Restraint

by Matt Clarke

The U.S. Court of Appeals for the Sixth Circuit held that the sentence of a convicted bank robber who did not have a gun, did not touch, bind, tie up, or lock up bank employees and did not tell them to move to another location could not be enhanced for “physical restraint” pursuant to § 2B3.l(b)(4)(B) of the U.S. Sentencing Guidelines (“Guidelines”).

David Abram Ziesel pleaded guilty to federal bank robbery charges under 18 U.S.C. § 2113(a). The undisputed facts were that he entered an Ohio bank, approached the tellers, and said, “give me all the money you have.” After they emptied their drawers, he asked if the bank had a safe. They replied that it did not. At some point, he told them that “no one was going to get hurt here.” Before leaving, he told the tellers to get on the floor. He did not have a weapon or imply that he had one at any point during the robbery.

After he pleaded guilty to one count of violating § 2113(a), Ziesel’s pre-sentencing investigation report used the 2018 Guidelines to determine his base level was 19. It also applied a two-level enhancement for “physical restraint” under § 2B3.1(b)(4)(B) and recommended a total offense level of 21. This increased his sentencing range from 37–46 months to 46–57 months. After considering and rejecting Ziesel’s objection to the enhancement and request for a downward variance to 37 months, the U.S. District Court for the Northern District of Ohio sentenced him to 46 months imprisonment, at the bottom of the Guidelines range with the physical-restraint enhancement. Aided by Toledo Federal Public Defender Claire R. Calhoon, Ziesel appealed.

On de novo review, the Sixth Circuit recounted its previous decisions that “physical restraint is not an element of the offense of robbery,” United States v. Perkins, 89 F.3d 303 (6th Cir. 1996), and has generally been recognized when “a defendant limits a victim’s freedom of movement by brandishing a firearm and compel[s] the victim to move from one location to another,” United States v. Coleman, 664 F.3d 1047 (6th Cir. 2012), or the victim is “tied, bound, or locked up,” as described in § 2B3.l(b)(4)(1).

The Court noted that, in applying the physical restraint enhancement, the district court reasoned that “the simple communication ‘This is a bank robbery’ connotes a certain degree of personal harm whether a weapon is shown or not, and certainly control is exercised by the robber.” The Court observed: “almost all robberies necessarily entail creation of fear and apprehension that may lead victims to ‘restrain’ their movements in some way. Indeed, it is hard to imagine a circumstance where a bank robbery could take place without the robber communicating his intent to the victims or without engendering ‘fear and apprehension’ to gain compliance. Construing the physical-restraint enhancement in this way would allow it to be applied in nearly all robberies, rendering it meaningless.”

That’s the reason, the Court explained, that the Second Circuit has “cautioned against interpreting the words ‘physically restrained’ in such a way that ‘virtually every robbery would be subject to the 2-level enhancement for physical restraint unless it . . . involved a ‘quixotic’ robber who explicitly instructed the victims that they should ‘feel free to move about’ or leave during the robbery’s commission.” United States v. Taylor, 961 F.3d 68 (2d Cir. 2020).

The Court explained that the district court’s reasoning improperly collapses the offense element of implied or actual force and the enhancement requirement of physical restraint, “allowing the exception (the enhancement) to swallow the rule (the offense).” Something more than fear of “potential harm” is necessary for the enhancement to apply, the Court determined. Applying the foregoing principles to the facts of this case, the Court ruled that “Ziesel’s conduct does not warrant application of the enhancement.”

Accordingly, the Court reversed the district court and remanded for resentencing with the enhancement. See: United States v. Ziesel, 38 F.4th 512 (6th Cir. 2022). 

As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

 

 

Stop Prison Profiteering Campaign Ad 2
CLN Subscribe Now Ad
Federal Prison Handbook - Side