reflect i recuse in duane mars cases so this this favoritism is not something that will affect cases before me like we'll call our case for the afternoon united states versus with with the courts approve all requests three minutes rebuttal times when one test you suggest that we apply in order to determine whether there's been an abduction here the the standard we would advocate for this court to adopt is that the forced movement between two locations is not sufficient to warrant an abduction there must be facts of force accompaniment rise elevating the circumstances above that which is inherent in your saying that there's nothing that shows the accompaniment from the bathroom to the to the cash register correct here well there was that is it the force of the company meant that your argument didn't occur says if you don't come out of the bathroom i'm going to start shooting people come out of the bathroom and walk presumably walk with the person who has the gun to the cash register is that what happened there's no evidence to suggest they walk with the person the facts of record show that they did walk thirty four feet from the bathroom to the cast register one employee at that time which i think is relevant here walked immediately out the front door julian  other two did end up at the cash register to facilitate the commission of the crime in order to obtain money from the cash register however if you look to other cases in the facts that they rely upon and in fact their entire analysis focuses on is the force much doubt that their use of a gun qualifies as this force to threaten to use it i thought what you were saying in your brief was that there wasn't any indication in the plea memorandum or anything else that there was actual accompaniment and that within the same the short distance within the same location is not is not equivalent to what the guidelines contemplated as a change in location or different location this case but if you look closely at what facts constituted the forced accompaniment there and you have a a defendant approaching a pharmacist and at knifepoint forcing them into the back of the pharmacy at knife point obtaining a second pharmacist and then forcing those two pharmacists to walk immediately before him guiding their every step there was witness testimony describing that he instructs in the case we walked in throughout the store and all the way to the front door but one of them wouldn't go out movement out of the bathroom the thirty four feet to the back to the register are you suggesting that rhinos did not accompany them did not walk to the cash register with these people who came out of the bathroom there's no evidence about what occurred between points a and point b did mr ramos also walk to the register yes but that he do so in a way that implicated the aggravating factors that warrants abduction no the the victims were not used as shields there no evidence that they were used in excuse me shielding a hostage ng is not a requirement as it isn't a requirement but the aggravating factors must be present to change mirror  every robbery into a more harmful a more onerous scenario that would warrant the four level enhancement and looking to example another case within the same confines united states versus hawkins there you have one of the victims being dragged by their hair you have another victim who's being shot with a sawed off shotgun pressed in their gut these are clearly aggravating factors demonstrating the company that implicates a harm greater than that which is inherent in almost every robbery so it's forced a company man not the location aspect that you are focusing on no we also challenge the location aspect both parties in this case indorse the language from united states versus hawkins and in that in that case the fifth circuit described the phrase different locations as flexible and subject to multiple interpretations which are to be applied case by case to the particular facts under scrutiny and here while in the most narrow technical sense of the word the bathroom is a different location than the register in the context of adoption we do not believe those two points within the seats where your tween the register and the bathroom is that open area because he went there were three people in the bathroom grab his kimono so he had a gun and they come out and they as i understand the facts they went up to the register he then said the distance between the is it an open space between the register and the bathroom there is a counter like in a typical pizza parlor that divides one side of the room from the other and with respect to the physical dimensions of the store the thirty four feet just to give this court perspective i had the occasion to come into this courtroom and from the wall to my right to the wall to my left is forty and one half feet so the distance traversed by the victims in this case was less than this  wall and when when taken into consideration with the absence of any facts rising this movement which really is inherent in every robbery rising that level that place the victims in occurred you had a forced accompaniments just like brown has indicated from the back and that's it and i find the government has proven exactly what i just read by a preponderance of the evidence and more that's a fact finding is it not to do would we have to find that that clearly erroneous no your honor we've we believe the plenary standard of review applies to the entire appeal in this case because the essence of our challenge is to judge goldberg's legal interpretation of abduction and that includes his interpretation of what it means what force to competent means under the guideline know that that is illegal i don't know that that isn't true well if your honor so inclined to apply the clear error standard here if you look  seventeen and you'll see in those facts you have the garden variety holed up at the bathroom and then they jump there's there's a gap in the back of the thing it did it defies common sense that they then show up with the robber i mean with rain us at at the cash register even though how was that supposed to happen they went out for lunch even assuming one of the front door we're not denying that the logical inference can be made that mr ramos walked with them or near s versus copenhagen or if this is not a physical strength case that's that's sort of the opposite of what we're talking about is that in the physical restraint cases they involve almost all of them forced movement between rooms within a single yeah that's where you're putting somebody in an area it's very different i see that my time is nearing an end i just want to touch on some policy reasons why this court should support the appellant's position here if you look to the for level enhancement and you see the other  provisions of the guidelines have applied the severe penalty to cases it'll i think demonstrate why here we do not have facts that rise to the level warranting the severe punishment for example in a minor assault case if the offense resulted in substantial bodily injury until a victim under the age of sixteen increased by four levels if the victim sustained permanent life threatening injury and kidnapping increased by four levels and here we have a level has from here is under the sentencing guidelines the range you would get changes by how much if you deduct four levels in this case it changes by thirteen months but if for example this were applied to another defendant at the base offense level of twenty the range would go off eighteen to twenty two months and if they were in a criminal has to get history how to goree to go twenty to twenty five months so we're talking about a substantial penalty based on the act of walking from the bathroom to the regicide it's also taking someone forcibly so as to facilitate the commission of an offense so it's not it's using a person that you find at the scene and forcing them to help you commit the offense so whether it's you know up it's not garden variety walking you know down the street there some compulsion the idea of using someone else to further your goals and what that what that means to that person what it means to society that someone is a law abiding citizen is used in this way or so i don't think i don't think the policy necessarily means that we should given there are reading i see i'm out of time answer your question and then conclude briefly thank you respectfully i think the base offense level for robbery at twenty already accounts for the type of conduct that occurred here which is the compelled movement not abduction as that term is interpreted by all the other circuits have addressed this and respectfully your honour's mr ray knows sentence here was increased one year and one month based on the mere movement between a bathroom and a register in a space shorter than this you good afternoon a police court robbers are on behalf of the government this was not a mere movement with respect to my friend michelle what we have in the record about what it was what we have here is that and she is correct the factual basis was stated on page one seventeen of the appendix and mr ramos explicitly agreed to these facts and that and the key paragraph is there and it weekends and says thereafter the black male started to kick in the bathroom door gained entry and said he needed one of them to open up the cash register or all start shooting so what we have here again is not mere movement we have three hundred value do we know that he accompanied one of the at least one of the employees what we do know is at least employees did go to the front walked out the door to employees were left there we know where they were yes well i would say you're on all three went to the cash register let me talk real quickly about that point about the other person that's race for the first time in the defendant's reply brief and the only citation given for that idea that one of the people immediately went out sites to the defendant's sentencing memorandum let's see what was there that said that he walked with them i mean i mean you thinking  he probably did but what is there in the record that says that he after they came out of the bathroom walked with them to the front cash register the thirty four feet or so there's no statement in the record that he walked with them using exactly those words but let me address what is in the record what is in the record is what first what i just said he kicked in the bathroom door they had locked themselves in the bathroom seeking shelter he kicked in the door and said i need one of you to go to the cash register office start shooting the next thing that the prosecutor said that and agreed to is quote ramos is the man here is open the cash register and then it says ramos took the money in the cash register and then stated you have any together at the bathroom at which point rhino says kicking in the door and saying someone goes with me to the cash register there together at the cash register that's where ray knows demands that give him money was all that really matters is that he's forcing one of them so what the district court concludes from those facts is that he forced them to accompany him to the cash register on this record we respectfully submit that cannot be and they are going after that  i thought what he asked was where is a key to the back door the employee one of the employees housing him where the key or the employee thinks the key is and he really knows goes to that area where he's told that the key would be without anybody being with him and while he goes to that back area the other two just go out the front door all the employees all the employees are gone by the time well that's right and in our position is that that supports the government's position other words he forced them to accompany him to the cash register to accomplish the robbery once he gets what he wants which is the little bit of money that's in the cash register he then makes it's escapement does not use number but he never well you know it why isn't this case like the seventh circuit case in your backs eubanks adopts what you're opposing counsel said the fifth circuit adopted in hearkens and that is it's a flexible case by case analysis you could in this be in the same building and still move to a different look asians such as you had in our sport but you also like in eubanks whether it be the beauty supply store or the jury store you could be in the same building and not have an abduction even if you have forced a company because it's not that significant but not that different location wise in this case like you banks especially with respect to the beauty supply store what what makes this very different is the fact that they've locked themselves in the bathroom as  they've reached a place of safety they're using their cell phone to call the police and he forces his way into the bathroom to remove them and get them to help him facilitate the robbery nothing like that i'm not saying that i endorse the decision in eubanks because the question that but we don't need to go there because this is so factually the state eubanks is the l a with two situations one person being drag six feet within a room but even  in the other cases hawkins and what not it was use of people for the purpose of getting your escape certainly and i was born and they said that's what the the enhanced what was there for to get people out of harm's way here it looks like this individual unilaterally made a decision just to let people go just let him literally walk out the door i strongly disagree with needs to be a company the third is a different location needs to be to a different location and the fourth is the purpose the guy ryan says it's for the purpose of facilitating the offense or escape so those are the four things we have to establish and we've been moving around and with your honor's most recent question regarding letting them go again the purpose has to be facilitating the offense or escape we're not saying that he may have been so talented offense by the time they  kashrut exactly it absolutely facilitated the offense to giving you banks actually notes that and osborn it was to facilitate whereas retrieving the surveillance video was not in the  is there not and of duction when you come in and rob a place and you have somebody move like an employee at a bank a teller move from the teller station to the vault to pull money out is that an abduction behind i would say no i would say that's not our case but but put plenty put ourselves in the position of those men in the bathroom who have six secure themselves and try to the up man at midnight dressed all in black with a black mask comes in the store locks the front door they run for the bathroom they lock themselves in the bathroom he goes kicks it and a gun point tells them somebody is coming with me to the catch register that's terrorizing these employees that's what answer how do you deal with your posing counsels point that that's that's included in the the robbery but it's not addiction because if you could have with the more common robbery of a pizza shop unfortunately this person walks to the front or points a gun and says give me what's in the cashier's there is extra harm here and extra tear that's being caused because of the way this robbery played out and this is what the guidelines do they have they have separate elop you got you need help me here if a teller walking from the teller window to a vault to get money to give to a robber in the vault is directly behind the teller twenty feet away if you're saying that that is not abduction but people in this case walking thirty four feet to empty the cash register that is no i wasn't difference no your honor i'm saying we need to look at the facts of each case if somebody jumps the teller counter crabs the teller of ad gunpoint forces the teller to move into the vault then i think i probably would be here arguing that it's an abduction if the person merely stood there and said i'd like to turn around go that vog grab the closest stack of money and bring it back to me that would be a harder case in order to apply the and do we know this is not her plea memorandum what actually happened here because what you read on page one seventy may have said look go up there and get the money issue starts walking with but one walks out may walk out the door and eventually all three walk out the door i mean this is not the best set of facts for where you're i just don't agree i think if you look at the fact that they did go to the cash register and empty the cash register and that they then left at the first opportunity to really you think this is the best set of facts you can have well of course not i deal with the cases presented to me but i do think your honor that this is a very strong set of facts i don't think and of course the most important thing here is the standard of this court has to determine what is a different location mean what does a company make me but the argument that's being presented to your honor's is that yes he he forced to make a point that the cash register yes he went with them to the cash register but factually there are no fa fifty for example the first question i asked you're posing counsel was what should we use if it is the hawkins eubanks type of test the flexible case by case the that's playing every deciding what test use right correct so you know again this is where we start to balance among the different factors what's interesting in this appeal was originally presented and certainly in the district court where the main emphasis of the defense was on whether there was a different locked room that they've tried to lock to stay away from the gentleman originally that's what this argument was about that's what the defendants principle brief and our brief are mainly for this is me this is a small pizza parlor this is not a big  don't know i you know i think the distance here is actually considerable that's been referenced with the if you look at the video which the district court did you have the counter and then you go down and narrow hallway and make a little turn and then get to the restroom he had to go take them out of this secure location so in terms of the different location part which is really what hawkins is talking about and we embrace the standard now this is a different location so we've moved on than to say it's a force the company and that's where i've suggested that the standard of review is clear air because the district court knows these facts the judge knows that he tells them go with me to the cash register he winds up with that at the cash register and if i could use a quote from treasure adelle's question it defies common sense this court would have to find that it was clear air for the district judge knowing these facts to conclude he also went with them along that thirty four foot distance that we have to assume but then don't we as a matter of i don't know what i would have thought law would have to say going that thirty four feet from one up from the bathroom through an open space to the cash register is a matter of law and abduction under the sentencing guidelines again you have to go through the factors and i think the ultimate answer would be yes it's an abduction because it's a different location it's a force the company that's the real question what is a different location that's right so if we get back to that it's a different location under the harkin standard hawkins of course it's forty to fifty feet roughly the same distance we're dealing with here in an open area in a parking lot and hawkins based on that standard that we've all embrace well it's from the van to the truck and then they said you know need not necessarily be from one space to another whatsoever there's no property line there's no barrier there's no nothing well i mean i think the point you agree with if you take a flexible approach there's no threshold issue there's no property line there's no there's no white lines or a thing like that it it's it's really flexible want to case by case basis that's right and what hawkins says is if there were barriers or property lines that would be a factor that if the court explicitly says that anything said there is a barrier and here there is a barrier that's what makes this case what raffle if you were if you were assuming this is a philadelphia rowhouse and you've got you know that's the front porch and that's that's the kitchen i mean that's kind of the way the feel hero houses are set up you know if someone was forced to go from the kitchen to the front porch here it's like the bathroom is at a different location right there and i intervene and i think that under that flexible test knowing the purpose of this guideline which is to impose additional punishment where someone has been moved from a place of greater safety to a place of lesser see this is not a difficult matter with they've tried to secure themselves a separate place within the building and he's kicked in the door so i would suggest right is that when you go through these factors sequentially that the district court did not air that this was a different location certainly there was force i'm certainly it was not clear error to say there was a company man based on the stipulated facts and it was for the purpose of facilitating the offensive was that was the very purpose was to steal from a cash register if the focus of the argument below had nothing to do with the force the company should we send it back for the court to you know specifically look at that i mean did make a finding but i don't know whether it was it was stated i wouldn't say that it was completely omitted the overwhelming focus of the argument of the district court was on different location but it was stated to the point that as your honor mentions the court felt compelled to address it  our example given in the commentary other than to a bank robber forcing a bank teller from a bank into a getaway car that's the only example given in the application now chris that's the escape rather than facilitating the commission both but the guy but again we have to look at the application no info which says its force the company went to a different location to facilitate the commission of the offense my time is up and i appreciate your honest was read upon that it was thirty four feet and i do believe that the distance is one factor among the totality to consider the sufficiency of the change that i'm getting whether it's twenty or forty or ten or and the judge  handsome and that's what i'm getting a discretionary call really with the material now i think that's the over mechanical applications that hawkins advised against and here i think that judge goldberg's mistake was one of the eagle interpretation as to what the meaning of different locations means and to respond to something that mr sounds more raised what that what does it mean different locations we believe the different different locations should be read in the context of the adoption handsome it should not be divorced from the abduction the term abducted nor should it be divorced from the idea of forced a compliment and the misters out all right but what but what does it mean how do we decide what is a different location we have to look to whether whether there was an increase in harm to the victim based upon the two different locations for example in in hawkins where you have movement from once in a parking lot towards the getaway vehicle or in crease in harm where is that in the guidelines no but that's how all the cases have interpreted this guideline that the abduction unhandsome it targets the elevation harm experienced by the victim and here while we are in not the elevation the fact that there is movement and there is force accompany him and in of itself is terrorizing i mean that is not to be an escalation of of danger to the person i would agree judge right about that any robbery is terrorizing and virtually every robbery involves some movement of the victim and every robbery in bore involves an element of compulsion never give me the you know coming up to the teller window and saying give me the you me all the money in the drawer well under different from walk this you know somebody's going with me to the cash register you know  start shooting there is a distinction there my time has even gone thank you if you know the minute however that would then that would then transform every robbery where when the robber enters for example the bank and someone's not conveniently located at the cash register