the text of to be three point one imposes two important limitations on the scope of the physical restraint enhancement that text is brief so i could read it if it would help us get on the same page if any person was physically restrained to facilitate commission of the oftens or to facilitate escape increase by two levels i submit that this gives rise to two limitations that together dispose of all of the arguments that the government musters in an effort to distinguish hickman first it requires that any restraint that the defendant engage in or  be physical and forcible that is that they must be a direct manipulation of the body's capacity for movement rather than restraint accomplished merely by threats or what is communicated to the defendant or to the victim second it requires that the defendant's activity be intended to risk to restrain the victim and that it not merely incidentally tend to restrain the victim the government points to the fact that the victim that the defendant's ordered a victim to the ground touched him with a gun to keep him in place and stood in the doorway but all of these facts rely on threats were deterrents what is communicated to the victim in order to establish that somebody was restrained they do not directly and actually preclude the victim from moving if they were inclined to disregard the defendant's threats in the district court as i understand it objected to the enhancement they did both sides did object to  and the government's position on appeal is that it was that it was focusing on only part of the facts in the record in order  to in order to reach its conclusion about whether the enhancement applied and then the p s r adinda noted additional facts but respectfully all of the facts that are cited by the government now in support of the argument that the enhancement applies were known were stated in the p s r to which the government advocate objected so nothing about the record changed after the p s r adinda and indeed the government did not withdraw its objection at sentencing the government went into sentencing and said nothing about the fact that it was objecting to the enhancement and only the first time that the government has ever voiced any suggestion that the enhancement might be a was in the red brief so i submit respectfully to my colleague that when people who are paid to vindicate the public's interest in crime control tell the district court that a higher guideline range is not warranted that is a good suggestion that the defendant should prevail on the merits you know if that was personal into some sort of plea bargain that they would not it on that issue or any of that type that there was some sort of an agreement reached before there was an agreement but i don't see any evidence in the record that it what's that embrace that guideline objection that the a the joined it so to discuss a couple of reasons that i think that the first limitation i'm suggesting that it must be physical actual forcible restraint as opposed to restraint accomplished by threats there i think three reasons for this limitation in the text of the guideline one of the reasons is that it uses the word physical to modify the word restraint one be one point one uses the word forcible to modify the word restraint that word if we apply the can in that every word must have meaning then to say that mere threats restraint accomplished by mere threats all restraint qualifies robs the word physical and the word forcible of their meaning second i think the canon of acoustic generis and the examples provided in the commentary and in one the one point one strongly support a suggestion that any restraint must be accomplished by actual physical restriction of the body movement rather than threats the three examples that are listed there are tying binding and locking up now even if we accept that those are not exhaustive and understand hickman said that the still provide a meaningful signpost to to what the guideline is getting at and the three the common feature of those three examples is that in none of them could the victim move even if they were inclined to mean could mean put in a room somewhere and still in that example if it really is locked the defendant really is contained such that they couldn't they couldn't get out of the room even if they were inclined to disregard the defendant's threats so locked up means means locked up means physically locked up somewhere but i don't think it necessarily mean means forcible con means contact means physical contact and so and so for that reason that illustrates why it's not necessary to hold that physical contact is necessary in each case in order to say that restraint must be physical because if somebody were locked up and you locked the door it might not have any contact with the body the third reason that i think supports this limitation is that you are dealing with an offense that is by its nature threatening and this is this is the  give me the money the the the teller the victim understands that they're not supposed to move anywhere as the second circuit said it would be a very key robber that walked into a bank and said  i need the money but if you have an appointment please know that i'll order that but the fact that the threat or whatever you want to call it entails the use of a gun does that make a difference in other words if the person walks in and doesn't show a gun into that everybody go everybody against a wall but there is no gun but if he shows up and says everybody gets a gun everybody against the wall and has a gun him at the individuals it doesn't make a difference that the person sees that there's a gun and there's a real threat that if they don't go along with what the person says that they could be injured well it certainly makes a difference to the defendant's culpability but it doesn't it should make a difference to the application of physical restraint because if you come in and demand the money the implication is that something will be done to you maybe a concealed gun or maybe just fisticuffs or something but it's not robbery unless the victim believes that they are in danger of some kind of physical attack so that the same way that i think that a victim confronted with a gun understands they're not supposed to run away a victim just talking just told there will be a physical attack or over there that a physical attack is implied they also understands they're not supposed to run away and so both victims i suppose would feel the strain would feel physically restrained by threat in that case that's that's the nature of a robbery and that's i think that's actually you know basic to this court's fab's actors prudence is that you know that's why it's been held to both ways on this issue is that correct it's a mess i mean it is a mess that the second circuit is clearly does support the notion that it must be that the commentary has meaning that the that merely ordering somebody to the ground is insufficient they like hickman note the significance of of the guidelines effort to single out a particular prey of the kind of robbery in which people are locked up on the the other end of the spectrum you have the fourth and tenth circuits which i think are close to saying that  they all robberies involve involve restraint they don't say that in terms but merely brandishing a weapon and conduct that's clearly insufficient under hickman has been held to qualify under in the air and demolish and in the tenth and fourth you know the standard isn't additional facts that make the robbery bad it's additional facts that that aggravate the robbery because of the use of his a call restraint so while the government does a does a credible job of finding additional factual distinctions from hickman the standard isn't facts in addition to his hickman it's facts in addition to hickman that are physical that make the restraint restraint physical and so if we're just looking for additional facts that tend to aggravate the robbery in effort to try to if that's the standard then that's not a standard that's going to be you're going to get completely different results in different district courts based on identical conduct the standard i propose by contrast is exceedingly easy to apply i mean that that will account for almost every case clearly on the face of the record if the defense if the victim could move  then in that in that case then the restraint enhanced it won't apply if the victim was physically restrained their body was limited in its scope of movement irrespective of what they decided to do then then it will apply  so if we respect that but the commission is trying to do and trying to create uniform sentencing and avoid the disparity between sentences and isolate the worst kind of of robbery and in all its many facets then this particular facet shouldn't apply unless you have binding tying locking up holding something of that nature part of one or more victims ha been herded into a large vault in the bank i think and that's that that is the one tricky issue i think if the under the very strict standard that i would propose  inside but it is a lot o clear if it's locked if it's if it is locked from the outside unquestionably under my standard that would count and that's usually why people heard somebody into another area because they want to contain them not just to put them on the other side of the room so clearly that would count that if the different if they were heard somewhere but in that case you have a look you have something that physically contains them as opposed to something that contain threat or what is communicated now i would say now there are some out of circuit cases and this i suppose would be probably the government's chief objection to my argument that might my standard doesn't account for some out of circuit cases in which people are herded but not locked up and that's been held to account but there is a i think a credible textual argument for a sweet generis exception for this conduct of herding which is that you get a four level abduction enhanced meant for forcing somebody to accompany you to another part of the room so if the court for some reason thought that the movement wasn't far enough or something like that to meet mary abduction it might seem strange or anomalous that they wouldn't get at least two for moving them part of the way and so when you take that in then you take the commentary which says there's an enhancement for when the defendant forces somebody to accompany them or physically restrains them you you that mn and other cases have discussed the need for limiting principles to the term something more or sustained focus those two terms have been used by other circuits and those facts are present here we agree with garcia to the extent that when you have in his reply brief it page ninety says that when you have a robbery that involves the quote unquote touching the body of the victim or quote unquote other intentional direct and substantial control of the body of the victim that the restraint guideline is a plausible under either of those scenarios that's obviously a fact dependent decision by the district court but in this case under these facts we have both of those scenarios and we have facts that are well within the confines of this court's discussion of the restraint unhan and there's a total of three employees involved in this incident and three robbers however they don't all come in contact at the same time initially it's two robbers entering the store both armed with pistols and i think it's important to point out that it's a gun store and when you have a robber who is specifically targeting a gun store one of the things that might motivate them to restrain employees in order to facilitate the offense is ready access to weapons defensively  employees so here we have evidence that that's exactly the approach that these two robbers took because the only employee that they saw when they first went in and all of her to him by first dangerous for ease is mike mi according to the record indicates that he is at the time on the phone with his back to the robbers so this is a very dynamic entry dynamic entries aren't necessarily atypical of robberies i w post robberies are dynamic however what separates this one and makes the guideline a pleasurable is what happened next day one of the robbers put a sustained focus on restraining mi by sneaking up behind might and physically putting his weapon into the backup lights net that according to counsel is one of the determining factors that would make this restraint enhancement apply not only does mike say  he shoved the gun into the back of my neck but he ordered me to the ground three or four times he also spawn me around and ordered me to get to the ground now in the record indicates that mike was physically unable to comply with getting all the way to the ground however the record also indicates that another employee who came onto came into the scene at that point because he heard that the glass breaking he said when he came out he could see the robber who had focused on my standing there with his gun at mike's had standing over mine so we do have the intentional manipulation the forcible control couple coupled with not only an implicit threat but overt threats physical touching of the barrel of the gun into the back of the neck so we have that going on and when one of the robbers did what he offense to borrow the language from the guidelines the other one is busy trying to get the firths of the offense he's smashing gun case cases and retrieving nine pistols that they were able to get away with that these robbers were intent on restraining the employees to facilitate the offense is not only shown by what they did to mike the employee who was visible when they first entered but ricky the employee that came out in response to the crashing of the glass they couldn't sneak up on rick to restrain him instead what they immediately did without hesitation he started firing so they start shooting at ricky ricky has to dive behind the counter he get shot in the ankle in the process he loads his weapon and he's able to return fire so we have at least two robbers who are firing we have an employee that is firing they are able to make off with the nine weapons was ricky brandishing a weapon and when he came out the record indicates that he was however it would indicate that it wasn't loaded because he gave a statement to the court indicating that as soon as he delved behind the counter he loaded his weapon and was then able to return fire so again here we do have the facts within techmeme within the other circuit decisions and i would submit that even under the the standards proposed by counsel here which i do think go too far it's nice to have bright lines we all want bright lines an easy task was written and talked about what constitutes i understand it because again they've talked about physical touching coupled with overt threats physical and tensional forcible control of the victim and when you take a look at the the statements that were made incorporated into the p s r because each of the three employees submitted statements to the court that discussed the facts that he just pointed the gun at him never touched the barrel of the and against this you'd make the same argument no i wouldn't necessarily because it's courting hickman said that merely brandishing a weapon without more is not necessarily enough so i could not by taking out that fact i could not but that fact alone  it can under the right set of facts if that but i can't say that that fact alone would be enough by itself i can under these facts in their totality say that what he did under you know in approaching mike from behind putting the weapon against his the back of his neck coupled with what came next which is according to mike turning him around ordering him three to four times to get down and then standing over him with his gun on might as ricky comes in and describes it that is physical restraint that is what this court said in hickman is that we do not need to have what counsel is proposing which is the inability to move unless you're inclined to do so as the victim and the government was aware of or least facts when they decided written objection objected to the application of the yes we did in our in our written objection we indicated that we talked about heckman we believe that under the facts that the guideline is likely precluded are the words that we used and we didn't say that it was a crystal clear we didn't say that it was foreclosed but we did object absolutely it's part of the record once we got to the sentencing hearing and i should say just to back up the defense in their written objection didn't offer anything in writing or any other analysis factually or legally beyond ours they simply joined ours you initiate yes we did your honor and then fast forward to the sentencing when the district court asked if the parties had additional argument or evidence and neither party did they stood on the written objections and then the district court having the benefit of both it rejected our position and it rejected the defense's position so now the posture on appeal is that we're able to on an appellate timetable take a look at have the benefit of a district court decision where they rejected what we had argued previously and we're not motivated here to defend the district court's decision by the standard of review because that's do novo instead we're taking a re examination of the facts looking at heckman looking at the case law and deciding that we simply before the district court took too narrow of a view of human and took too narrow a view of the facts in this case that make this restraining handsome in a political without having to go beyond men without having to ask this court to carve out any other rules instead this court in hickman  gave itself ample room to decide that the restrain and smith in this case that there is something more there is a sustained focus for there is physical manipulation of the victim that's in this case was i think one of the defendants was at the door with a gun does that factor into anything or is that a normal robbery that someone stands at the door with a with a gun is that a factor that should be considered art has nothing to do with it are we just concerned with the gun that was put up on to the person's neck is that what made this this a guideline apply not not the person at the at the door with a gun but more and we are certainly arguing that we have agreed and adopted that is our position in our briefing before this court because that is something that separates this that we also have under the totality of the facts here which the district court considers we have one of the robbers i mentioned that there were three two made entry one of them makes his way to standing near the doorway and he is standing near the doorway for a certain period of time and then according to his own statement he also calms and joins in the robbery and actually assists and loading some of the guns in the cases during this entire time of course we do to new to have might visit glee restrained by the first robber we have the other two are now emptying the gun cases of gun cabinets and pistols and we have the exchange of gunfire going on as ricky comes out so all of those facts clearly put this within the confines of hickman and again that is something that we simply took too narrow of approach of an approach of considering fortunately the district court did not we're not going to aren't there already things in place  count which does address some of those very concerns absolutely the the the guideline here that we're talking about is strictly on the hobbs after robbery and whether it was going to be an additional two levels whether the the range was going to go from forty one to fifty one to fifty one to believe it was seventy seventy one so to answer your question there are other considerations at play here under that some physical restraint i'm going to i don't want to use the term primarily because again it is it is so fact dependent that the the district court here didn't focus on any particular fact instead he looked at everything in totality as he should and as the guideline encourages them to do and the guideline also talks about the offenders inten intent to facilitate the offense and to facilitate escape and so one when we're talking about putting the gun against the back of mike's had that certainly helps  give us some good evidence of what the intent was to to restrain in order to facilitate the offense and that goes back to what i what i began my recitation with the you know the fact that the only employee they see is m employee of a gun store somebody who could have access to weapons so that is one incredibly important factor is what i'll say course but it's more than that  because the you start to get into what what hickman's says were merely brandishing a weapon without more is not going to be enough fortunately here this court wouldn't have to make that distinction because you do have one you do have sustained focus and his counsel has emerged you have the physical manipulation of the of might standing over him with a gun right on him and another employee coming on the scene and seeing this and reacting the way that they did and physical restraint not only to facilitate the offense and to facilitate  clearly part of the reason for the for the enhancement but also physical restraint and it creates a certain environment it gives you love if standing over him do you mean the might was no i'm not saying that he was on the floor because the record doesn't support that it indicates he was physically unable to comply but that's a minute that was my recollection of the fact that he was physically unable to comply that's why i'm trying to understand what you mean when you say standing over him well what i would point to is the the statement that ricky submitted to the court indicating that when he came into the main area he and this is at one fifty five of the record that ricky sees one of the robbers quote unquote standing above might and he also said that this robber had his gun to m mike statements to the court at one fifty six and one fifty seven of the record where he indicates i'm on the phone with a customer my back is to them and all of a sudden i get a weapon shoved up against the back of my neck and three or four times i'm turned around ordered to comply or ordered to get to the ground so that's that's what the record supports so we do have as as coun indicated and as the court was asking we have circuits that are not uniform to put it mildly on how and when this restraint enhancement should be applied and we would argue that this court in hickman has carved out a very a very solid middle ground and that's something that the demolished court talked about some but they said that certain circuits have read the guidelines broadly certain circuits have read it narrowly demolish was decided in two thousand and eleven much later than this court's decision  heckman interestingly though hitmen wasn't part of its survey of cases so i don't know what the what the circuit court and demolish surmised about the hickman case maybe they maybe it hadn't been brought to their attention or maybe they decided that it wasn't necessarily in the broad camp or in the narrow camp instead they they they took him in for more of a moderate approach i would masked robbers both of them armed with pistols entered a gun store approach a store employee under these facts order him to the ground stand over him with a gun while another robbers able effect should we give to the fact that one of the robbers was standing at the door in other words why wouldn't that be the equivalent of being locked up to use the words of commentary because it contains the victims by deterrence rather than by their physical inability to pass him assuming the defendant doesn't and i think this was my client standing in norway doesn't occupy all of the two dimensional space and in the door way it's possible to pass him it's just that the victim is disinclined to do so because he's there and his presence is a threat not so not only does it not represent physical restraint but it's not much above what happens in ordinary robbery robbers enter through the door i mean that you know it's you might have a different a different case where people are herded in the thing it blocks the narrow entrance to a part of the the the  not technically necessary in every single case that there be a feeling of restraint a robber could say get out of here i'm going to take the money but as hickman points out in the  the overwhelming majority of them there is a threat not to move and the threat is implicit if you come to the employee or the teller and say i i want the money that person understands that them if the court wants to know whether the government standard will produce different results from identical facts it need only look at this case it's not merely that different district courts will will reach the different results opposite results based on different facts the government itself applying its own standard in this case reached different results based on the in the exact same case but lo they looked at the same set of facts and said this is not physical restraint now they're looking at the same set of facts saying this is physical restraint if you don't want that to happen you need a narrower standard in this case a standard makes a difference a differentiation if if a gun is actually pressed into the back or some other part of the body or the neck of the victim that wouldn't be helpful bright line rule well no it wouldn't and the reason that we know that is that and there's contact in hickman and hickman the person is tapped with the gun so the government is basically proposing a standard which is which which makes the subtle distinction between just don't move is there is or difference there one says don't move and the other one just says give me all your money in both situations to put the gun up to your neck would you have would the would the guidelines apply new that two points to the case where there was an order not to move you would add you would have no you wouldn't have points in either one of them i submit because in both of those cases you would have an order not to move implicit or explicit it's based on a threat rather than the physical direct immobilization of the body in that situation until i'm suggesting to you that it ought not apply unless the defendant is i mean the victim is literally incapable of moving in both of those cases the victim could turn around and run away if they were foolhardy enough to do so or inclined to do so and remember that the this guideline pump punishes threats including threats not all of the facts named by the government in this case other than standing in the doorway produced additional punishment the fact that there was gunfire produced additional punishment in this case because because it gave the different in the  twenty four c the injury produced additional punishment in this case it's just that it doesn't produce the additional little to point enhanced meant for the particularly deprived behavior of physically immobil