today the court is asked to decide the meaning of adoption is that time is contemplated by the guidelines the guidelines provide that a victim is abducted when he is forced to accompany an offender to a different location and they provide the one emblem example of the act of forcing a bank teller outside of the bank into a getaway vehicle this definition in this example is consistent with our everyday understanding of the term abduction we provided the district court with three dictionary definitions of the term abduction all of which included the following language the carrying away or taking away by force kidnapping here the district court erred by applying the abduction hanson in a case where there was no abduction no carrying away by force instead all we have is forced movement in one location and we don't deny that the force in this case was offensive it involves the brandishing of a weapon and the of a locked door but those two facts do not constitute abduction as that term is meant in the guidelines the guidelines can't possibly account for every aggravating circumstance to occur in the course of an offense or in the course of a robbery but that doesn't mean that this court should force a square peg into a round hole by defining this case as an abduction the district courts have other mechanisms available to them to account for the entirety of the defend contact and any aggravating circumstance that may not be specifically captured by a guideline and handsome and without distorting the meaning of abduction my argument today will focus on two issues first and primarily the question of a different location and secondly the meaning of force accompany meant both as those terms are defined in the abduction guideline judge amber was his dissent that there was only one location involved in these facts and that's as pizza shop the dimensions of the pizza shop court this conclusion it was just over eight hundred square feet and the distance traversed by the employees from the bathroom to the register was a mere thirty four feet a distance that could be traveled in seconds and that could fit in this court room wall the wall with room to spare standing at the door of the bathroom you're a mere eight feet from the counter on which the register sits and these dimensions do no one location the district court and the government here rely too heavily on the presence of the locked door and by doing so in gauging the overly legal istic approach cautioned against by u forces hawkins that says that neither the presence or absence of doorways lot lines thresholds and the like should determine the question of a different location and here that's the only fact that even arguably supports a finding of a different location in this case and it's not enough to turn ed's pizza shop in to two locations for purposes of abduction the sentencing commission told us what it means by the phrase a different location when it provided one example and that was taking a teller of a bank out of the bank forcing them away from the bank into a getaway vehicle the facts of this case are profoundly different turning to force a competent it's difficult to define that in isolation from the concept of a change in location because it is not a stagnant act it is what happens in the change of location it's an aggravated movement in concert with the defendant from one location to another here all we have is compelled movement from point a to point b within one location and we have no facts of record to tell us what occurred in those thirty four feet we do know that one of the employees walked right out of the front door upon leaving the leaving the bathroom i point this court to the circuit case united states versus reed where in the context of the bank robbery they observed that and virtually every bank robbery  occupied premises you'll have movement of an employee of the bank from point a to point b within the bank but to define that as an aggravated a company meant would unnecessarily convert ordinary robberies into ones involving abduction only the you have a very small piece shop a very small bank that was laid out in such a way that even you would agree that the defendants action in that case because that in the direction what is the rule of law the cases said you can't look for various and you i don't think that this court needs to apply a strict test that intice a pace every possible factional scenario i think that this court's haskins to define or to discern excuse me what the sentencing commission intended by adoption well doesn't that requires then to attempt to define a different location because if we don't then we're left with nothing but ad hoc agree and no kind of guidance at all to the district courts yes i think we can define a different location by looking to the language of the guidelines and in the context of adoption it requires a geographic site a change in location and to go back to something judgment he writes about whether he's correct that i don't i do not contend that it could never happen within the confines of one location it is an easier set of fans can then for example united states versus osbourne you have a case where the movement with within one location is still consistent with the act forcing a victim away he was using them as a hostage forcing them to to go away with him but isn't this exactly like osborne because in osborne the point was made it's a pharmacy the pharmacy had a law area he took him out of the lock the area here they're in a lock they have a room and he screamed threats and sensually broke down the door i mean if you're talking about  extraction from a safe haven outside the safe haven isn't that getting to the issue that we really have to deal with and that is are we increasing the risks that the victims are exposed to whether it's eight hundred square feet were a thousand square feet i think this case is materially different from osborne even though you're correct they both involve the locked door and movement outside of the law area however that was not the focus of the court's analysis and i was born in in for good reason because what they focused on was the the circumstances consistent with abduction where they're being held at knife point in close contact walking immediately before and in close contact with robber winding through the aisles of the walgreens and it wasn't about the removal from the pharmacy it was about the moving away from the wall because one doesn't say that i was born doesn't say it's all about the moving away it's talk about the movement with the increased harm because you have a victim and you have a defendant and you have the force and the same thing happened here i mean it was thirty four feet from a locked bathroom to a different location with these two people one of them a victim and one of them with a gun that increases the harm if you talk about the guidelines are supposed to ten being by this action it is that part symmetry of the victim and the defendant what are we what are we to tell the district court just do what you want and then we'll decide on appeal whether we like it or not isn't there some level of deference when we when the district court is supposed to apply the guidelines to the facts of the case as judge goldberg did very carefully here stre careful scrutiny of the video and explain his reasoning the flexibility of osborne hawkins what are we supposed to tell the district court we'll know it when we see it what test there really needs to be a test we need to give the district court guidance we can't just it was about conduct that was engaged in by the defendant that was plainly targeted by the enhancement which is keeping victims close by as readily accessible hostages and providing himself with a potential hostage thereby placing them at a greater risk of harm it distance because as you do that you have enhanced the possibilities of harm coming to that right but that that's simply a reason but you still haven't answered what i asked haven't heard you refer to it he spoke of a some wind of demarcation is that a test that we use you've also referred to the guideline commentary which gives this a singular example and that singular example requires you to go outside the building so is the test that it has to be one building to another one building to the outside what's that i would propose the definition of forced accompaniment is one of aggravated movement in close contact with the defender consistent season of the defendant consistent with adoption and different location with the defined as a geographic site or change in location or an effort to change the location by means of a geographic site similar to judge ambr to start shooting yes and that was the gun point command but it's our position that movement compelled in response to a gun quick command is not enough for abduction to point this court to a third circuit presidential case u s versus copenhagen which while it dealt with physical restraint the majority said that they declined to find whether some action in the response to a gun point command is enough or even the two level restraint enhancement and here we're talking about whether we're going to apply the four level restraining has meant for the same looked to the facts of what occurred prior to placing the victim in the fireplace you have the defendant leaping over a counter of a night for the old strausberg and forcing him at gunpoint into a back room forcing him down to state next to a photocopy or going back and getting him back on point see him again back to the area of the register and again into another all of them and then finally restraining him in a fireplace and so the fact that in that case we're talking at two levels i think is  involves unquestionably less onerous facts than company however and we're talking about adoption was abduction litigated in copenhagen now it was not let it be we don't know we don't know what the court might have thought about that no but the fact that the government and probation movement from one to the other location did not increase the risk to the pizza shop at least greater than that which is already inherent in robbery it should be viewed as a different location so am i right in understanding your position to be there so say increased risk explain how we can be the case that kicking a door and taking somebody out of a locked room and exposing them to the the gun that being held by the perpetrator doesn't meaningfully increase the risk to which those victims are exposed it does increase risk but not the type of arrest that this guideline and hasn't was meant to target and not risk that is sufficient to qualify for the four level unhandsome and i would point you to the that's a majority of cases that applied abduction and you can see all of the fact patterns easily fall within the interpretation of abduction as we've posted here today you have an us versus well in forcing someone outside from into threshold you're going back to the threshold because if that's it seems like it's tough for you to have it both ways if it's if you've got this entry exit theory then you're pulling a lot of emphasis on the fact that there's a doorway and here there's a kid been doorway if you're going to say there it has to do with close contact well the guy was taken out of the bathroom a gunpoint and marched down to hallways to cash register sounds like close contact a physical threat i mean him you say this is vastly different how is it vastly different in this case we do not have exiting or entering the building so clearly that every straight to adoption i think that the restraint enhancement is clearly about the act of compelling someone not to and confining then tying them restrain them it's the opposite of taking them away as as an abduction what is your position here if we don't apply the auction and hansen it should be nothing or is your position that abduction is not proper you got them out in similar to many robberies where you have occupy premises it was a dumb point man to get me the money and yes there was an incidental thirty four feet then traveled from the bathroom to the register not going the situation that the mere presence of that door that one fact is not sufficient to change one location and two for purposes of abduction well you said that you think that abduction can happen in one building let's say the bathroom was on point to us versus johnson where you have the bank teller being held at knife point in a choke hold and forced to move eighty feet while being held between law enforcement who at the time had entered the entered the building and surrounded the building so there yes we have aren't there for the guidelines no i'm not asking this court to add a requirement for say of an aggravating circumstance and maybe i have in our police stated that the aggravating circumstances really are just tell tale signs of a classic abduction of w doesn't have to doesn't mean that there's no movement at all this court has never defined restraint as broadly as would be required here which is simply movement in response to a gun point command was force is one victim into a back room at gunpoint to retrieve a surveillance video and forced another v onto the ground and then dragged them by their hair that may have six feet the victim was dragged by her hair six feet which i don't know if that's what the defense was conceding was restraint but i would argue that the restraint did not occur from the point a to point b movement within this was it has never been wasn't a distinction there in the seven circuit they've gone and abduction as including forced movement you know in the seventh circuit they have not defined restraint excuse me as as including force movement so they needed to therefore change something in order to call it an abduction you know the seven circuit actually if you look to the case cited by judge amber oh us versus carter which is the seventh circuit and they require more than forcing is meant for restraint they require the sustained focus of the defendant's weapon course i think as i said in our argument the first time around there really four elements to this there's force there's a company meant there's location and then there's the purpose the purpose being either to facilitate escape or to facilitate the offense itself and i'm happy to address any of those but location seems to be the tough one that's the one where if you excuse expression we need to draw a line we need to know when have you moved from one location to another and it's very difficult to come up with that line given that there are millions of possible places that they could apply to i do think there's a test that can be derived from the guideline the commentary the case law on this and the test i think is even been suggested at many of your honor's question and that test is first all of are in the city a different location needs to be a different place in terms of structure or purpose that makes the makes of a logical person say this is one location as opposed to another location and i think that the assessment also of whether it's different in structure and purpose on the particular facts of the k this needs to be informed by what the purpose of this guideline is the purpose of this guideline obviously is to recognize when there is more aggravating conduct involved in a bank robbery and many of your questions have suggested one of the things that makes this more aggravating and that is the increased risk that you're subjecting the victim to by taking a person from a place of greater safety a lesser  another aggravating part of it of course is the terror that inflict it's terrorizing enough when somebody goes in and points a gun and demands money at the threat of grave harm or even death it's worse if someone is more terrorizing if someone else here has locked themselves in a place of safety and is forcibly removed and so i think that's basically the standard i'm not sure we can state it more precisely than that and then leave it to our district judges to apply that it's faithfully as they can to the myriad circumstances to come before them and then i think review of that is for clear air as to whether the district court has clearly aired this case i would respectfully submit is not a  and it's all about the law the war we can certainly well i'm sure will talk about different hypotheticals and harder cases but here you have a place in which these three victims cram themselves into this vacuum i don't know if any of you have looked at the video but this afternoon is two and a half feet wide and six feet long and these three men obviously scared pushed themselves into this room lock the door and mr ramos needed to literally kick a hole through this wooden door reaching in and unlock the door and take them out that's an abduction that is taking them from a place that is different in structure it has a completely different purpose from the rest of the restaurant even if it is a small restaurant it's the rest room and it's a place of safety for them that's not how statutory interpretation always works and that terms that are sometimes terms of art and here what we're required to do is apply this term as the guidelines of the fine the guidelines define it as forcible  accompaniment to a different location and that's what we have here and this particular case falls squarely within the cases that we've described as warrant cannot be distinguished this court of course has every right to disagree with the fourth circuit if you wish but i think that the decision in has been is is one form that's correct same case one room there's a locked area that these people are removed from and taken to the front of the store this focus on aggravating factors with all due respect to chandra i don't think it's correct because what it that is doing is is jumping to element number four we know that the last element is that it needs to facilitate the offense or facilitate escape and the examples of aggravating factors that are given is taking a hostage being doing a get away and that is not helpful earlier on in defining what is the location i do agree and maybe i can even persuade jammer oh i do agree with the part of his decision that says location imagine for example the nine one one operator but they call on the cell phone we don't have the tape unfortunately but i would imagine the operator would say what's your location i doubt they would say it's house of pete's below their locations where in the bathroom we put our about it because of this and bank designation i'm not so sure that we disagree with you banks you have it it's an open area one is just six feet only person from one place to another the government as i can tell you in our district we have not advocated the i define location as being some separation and i'm interested in again hearing your definition of different location because if i understand it correctly in my notes paraphrase accurately you first said it's a different place and i don't quibble with that in fact i picked up for lack of anything better black's law dictionary look the locus in every locus definition practically i saw used the word place  is we know it originated in terms of helping just one person and the only thing we have is a single singular example which takes the victim from within the structure to outside that structure why should that not determine the meaning of different locations because the guy says for example and then only gives one an ample and this court has often interpreted provisions like that and  every source we can including our logic and statute privateer oath of the dictionary and anything else and so certainly there is an ambiguity when we first look at it but once we consider it and especially as i suggest this also goes to just ask questions especially interpret in light of what we know the purpose of this i'd like this which is to address the more aggravating factor when someone greater risk and greater terror is inflicted on the victim i don't think we have him at the end of the day and therefore the will of lenity which very rarely applies i should not apply here either but how do we make this workable for the district or how do we give them some kind of rule let's just say hypothetically that this in bangkok were reversed with determination now we've set aside up on my previous question and just ask this so you can shoot it down what if we were to suggest one or two courses that are consistent with what we believe textually can be derived from the commentary and the and the guideline that there is either a rebuttable presumption that what we have is a different place where you move out of a building or from a building to another structure and that all that is required are findings to rebut that to suggest why it is not in a location or similarly but not using words of presumption that there is a waiting and that if it is determined to be a different building restructure that is weighted prominently but can be overcome by other facts would either of those be a workable solution here that would be both hopeful to the district court judges and also i agree this is not easy but i have attempted to state a definition that i think is workable that does give the dish of court guidance i'm not a big prize you're giving us a definition like that i thought you were going to stand up there and say we should follow the flexible case by case approach of osborne in other words that location is not a point it's a range only he's allowed government i absolutely think that it's a case by case flexible determination and i think because i haven't given you a specific definition i think it reflects that case does that mean the same set of facts we as a reviewer court should a firm decision is regardless of whether you duction unhandsome it is applied or not apply well i think it's should we give discretion a district that is the same way we do under thirty five fifty three a another sentencing review that we will yes i think the best any of us are going to come up with and we attempted to give an explanation of what a different location is in the context of this guideline but at the end it's going to be the district judge exercising his or her discretion to apply to the particular facts of the case and the review will be reflected judge rebels going to the question the review will be reflected in the clear air after so is this record where he had found physical restraints that of abduction it would be very difficult to overturn that yes i agree with that as a talk about physical restraint a physical restraint ordinarily is going to be involved in a case and involves abduction the guideline itself reflects that by putting it in the same guidelines in the very same sentence and here i would have no hesitation if if our position does not two level stand that enhancement that would apply doesn't preclude the greater i mean we have we could be here all day talking about examples of the guidelines where you have a certain number of levels for bodily injury and then many more levels for greater badly injury and s maybe many other people in this room i'm not sure that we would make that only two points and make adoption twice as bad in terms of offense levels as pretty horrible thing to go into some innocent person and tie them up overstrain them in order to do whatever illegal thing it is you want to do it right in this case had broken down the bathroom door for you to go to the three individuals in the store and said give me your money or move them into the hallways there or each one of you give me the money i think you would find probably would not pursue the enhancement in that instance because they're within the same room in the pizza restaurant and there needs to be some demarcation you need to win if some ways are safety relative safety that they were taken from hiding to expos danger oh definitely and that's why i'm saying we have a discussion and i'm not precluding it it's a much harder case in this is so the but at the end of the day it's booker that sort of writes the rescue because once you have faithfully apply the guidelines which i think you need to do here and decide is this force the company may take it from a patient then the judge has to consider the guidelines as well as all the thirty five fifty three a fact and that's the time and that's what we've committed to the district judge to say you know i really don't think th in terms of adoption there i don't think this isn't more like physical restraint that's the system that we have now that squarely addresses your honour's concern but we're at an earlier stage the author concerned can you shift to the you mentioned the district court he conclusion isn't it as you said at the very start of your presentation it's a term of art right right ok so if that's a legal conclusion based certainly on underlying facts but ultimately a legal conclusion think that's what i'm addressing here once this all worked out fine trying to get past that we're down the road we're at the next case this record judge is wrestling with what i'm sure will be a lucid and persuasive by whoever writes a reasonable and is trying to understand what to do and and and and says i think you know the following things happen here and that's an abduction and it comes back up to us because somebody mistypes office this agrees with that conclusion what are we going to say when we get that how are we going to review what's the standard we tell this record that we're going to be applying when we look at at this stage for mr arenas we have a mix question of on fact because we're here to talk about with a set of lawyers as well and i'm suggesting that we have an abduction here because because we're defining different location and under any reasonable definition we had a different location here with a law that was in this case very much like the guideline provision that something is related and in buford the supreme court said you know whether it's related or not we're going to let the district court really have some deference the district court because they see these things all the time isn't it a little bit like our case in u s versus richard's where we had to decide whether the vista court of properly found the someone with a high ranking official and that's not a legal term just like different location legal term that's also not purely factual because you know what the facts are but it's applying that definition to the facts at hand and isn't this kind of a middle ground where it's not clear error but it's the kind of situation where the facts are going to change constantly the district court's going to see thirty feet fifty feet unlock bathroom door pizza boxes and it's going to have to decide and we give some deference if you will t you know we haven't talked a lot about you for since poker because so much has changed since booker was decided you for it from an earlier era have but the supreme court unquestionably said there that there are these mixed questions of fact and law where you just which is that this may be the case that brings us back to that saying that there are guidelines provisions that where the law and the facts are so intertwined and so varied in their application to so many different situations that there needs to be discretion to the district  with the premise of you for of course is that it the district judges will see infinitely more of these cases than this court ever well this court is limited in its resources in reviewing the cases where the district courts are imposing sentence on a daily basis and they're the ones that situation yes we do and i think that wasn't a point concession in fact the panel was really unanimous on that point that there can be and it actually within the same building such high regard i thought his opinion spoke very eloquently to that in terms of this courthouse that if somebody were taken from the courts office on the second floor and pulled up here for the purpose of facilitating a crime i don't think any of us would hesitate to start going to the well but this case of walk is cause i was born in the courthouse example because i want takes place in the same room and talk even in the same room i think wal mart i mean wal mart i think if somebody went to a locked bathroom at one corner of a warm and cold the people out in order to take them several hundred feet to never the cash cow i don't think the quite a court would hesitate and saying that's a different location so what  if the three point two b three point one before a talks about work one increase if a person was abducted to persuade a commission of offense then you go to the comment comments as abducted means that the victim was forced to accompany offender to a different location for example bank robbers forcing a bank teller from the bank into a getaway car because of too an abduction could miss early what if that directional arrow is pointing to you need something can too in this case taking a hostage or a kidnapping and there's nothing plainly going the other way where in the text is there something that says that we should have the low threshold you're tried to say originally is the area is different in terms of configuration or purpose here you have both but they're not trying to limit it and i think that i agree with my friend michelle i've said in her argument is that we're not going to come up with a clear line in this discussion and as hard as we try we're going to look at a case by case the hard case is going to be the same room no barrier maybe some pizza boxes you think we're going to come out with a different location means or do you otherwise but the clarity i have an institutional concern we've been in the trees in this case guidelines puts us deep into the trees let's look at the force from innit what would his guideline range of benefits have been a two point sort of a four the bottom probably would have been thirty seven months so much so why why should we be engaged in all of this detail and else's post book why shouldn't we just say  these they can do that miles we have consistently argued unsuccessfully in this court that plane air review should not allow relief where there's a very small guideline or like this but the final guidelines within the same range i know my colleagues in the district of new jersey are greer confirms that this court has it correctly calculate the guidelines as one of the thirty five fifty three a factors that the district court will consider but if you ask me at the end of the day is there harmless error components of this i would say absolutely but i ten years is this definition in the guidelines that is not very explicit then tries to cast some light on that definition by using this example which i think all of us would agree the example given the commentary you know that looks like an abduction that well as i was trying to say then that maybe i'll conclude on this is that again i think there is a spectrum of cases and i don't think this is the hardest case within a room that's the hard case two rooms that are open to each other that's eubanks that that's a middle ground that's a the question thank you very much i want to start by distinguishing oz torn my opposing counsel mr has has characterized that as virtually identical to the facts of this case in fact describe that involve the place of sanctuary in removal from that place that's not what happened there these are the two victims of the robbery were stationed at a pharmacy where they were working they didn't hide into a place a sanctuary it's a different set of facts upon the robber coming up to them at knife point in the robber then move them into the locked kick the door down to bring this up now i don't think so because my point was that the question of a place of sanctuary was not at issue and as borne what was at issue was the use of them as hostages and what he did with them after that fact which was taking them away room well i would plant what some of the judges here said that that the question of of sanctuary and the safe place that's not in the text of the guidelines nor is it present in any case that i've seen applying this enhanced meant instead they're looking to whether there was an abduction whether these people were isolated that didn't happen here whether they were used as shields or hostages again it didn't happen here and well that you again the language from your own brief though was some measure of increased risk right how how can you deny that there's a an increase in risk in picking somebody out of a locked room a gun i don't deny that but that doesn't cause you to move to somebody and they did move them crap conduct that implicates danger associated with adoption not all harm that could take place in the course of a robbery it's simply that's not the mechanism by which to do it i think some of the judges here were implicitly referring to the district court's discretion to i'd like range so he he could just go to the top of the ranges to the bottom of the range and get the same hundred fifty seven month sentence if he played the two level the strain in hansen exactly if assuming that restrain applies here which we would contend that it didn't and i would then hopefully be before some part of this in the level of danger the same here is once he knocks the door down or kicks the door kicks a hole in and opens the door regardless of the movement of the individuals they are at greater risk now because if they're safe haven has been breached yes that was bringing them and that actually brings me back to my second point response it's jordan's question that as soon as mr arenas entered the pizza shop that place became a dangerous setting and in fact whenever any robber enters a building with the intent to rob someone especially carrying a weapon in a blink of an eye you go from a safe place to a dangerous one but the abduction hanson is not about the change in safety it's about abduction it's not about necessarily confining it to some distance one hundred feet ten feet or one different location than the rest of the wal mart i'm sorry walgreen's location so if you're it's you know same floor obviously separate it's just review the videotape said i'm looking at this tape i've seen it carefully you can move down a couple hallways it's not like they're right next to each other if that's the study judgment of the district court reviewing that evidence why wouldn't we say hey you know what that's the judge was looking right at the tape and what happened and there was a movement at gunpoint from one spot in the store to love's upon the store it's abduction trauma the district cour