robbery and when the district court sentenced mr hill it applied sensing guideline section two b three point one and specifically this specific offense characteristic for abduction and or before we don't have any factual objections to what happened but we object to it we do believe the district court erred in applying the law and erred in applying the standard what we're asking this court to consider is adopting a standard similar to the public decision from the circuit this issue i know we've got decisions from other circuits and there are different approaches that the circuits take correct or there's nothing specifically about abduction there are some  published opinions regarding physical restraint and we believe in talk a little bit about the government the government's position seems to be relying inherent in physical restraint there is going to be some movement of the victims and i think in that definition it looks at the purpose of of the movement because i think if you have this this definition where you look strictly at location or position there's almost always going to be some kind of movement and the common movement in this this guideline is probably i think at least most commonly used in cases of bank robbery and so the sort of the common movement there is is to the vault and the purpose of moving those victims to the vault isn't to abducted them and to take them with the robbers it's to put them in a place where they can secure them and then leave and really that's what happened here and i think if you adopt a standard this in that once we once we depart from that that definition th line drawing problem that's kind of a great i mean how do you know how how how when does a location actually become a different location if we say that it's not a specific spot at which you are at one crap propositional phrase or what to when two different places should be actually considered different locations within the meaning of the guy being well i think there is there is one i guess one area  within the commentary to physical restraint it defines physical strain is essentially thai and such are gives a non exhaustive list of examples this time someone up bound in them binding them or locking them up and i think in that respect it's sane most likely you're going to be moving someone to lock them up whereas the commentary defines abduction as just the example that it gives is for even the same about the difference between the tailor to the getaway car as between to the teller and the all back and right in so i guess again i think that goes then to the purpose if you're taking someone out of the bank if you're taking someone out of the building you're probably using them as part of your escape and they're then you're probably going to be increasing the likelihood of harm because you're removing them from that location whereas here you're putting them the victim in a place and then the plan is to shopping i just assume a traditional i know they're going to have existence now but your shopping mall with a lot of different inside shopping mall a lot of different stores if you took somebody from one store to another store would you c that that was a different location or would you say it's not a different location because it's still open the same model i think there you are good in much closer to where it's going to be a different location much as you're leaving well you're leaving the you're leaving the the retail sat and just for the same reason that if you're leaving the bank you know even if the bank is in a mall under the guidelines i think in under the th circuit i think that would most likely qualify for the abduction and hanson again back to that purpose you're taking the the victims out to facilitate your escape and it increases the likelihood of harm i think what should it be up to the district court to here you're going to get some more consistency i mean i think my my concern with the th circuit standard is that the definition of location is too broad and so you're senshi going to read out physical restraint from the guidelines and so i think some constraints or some you know borders i guess on where or what purpose they would be taking someone for would be would be important but it would it is there a middle ground perhaps where building in the lower floor i mean you that outside the building but certainly a substantial move that may facilitate this by the abductors and i think that that would be a very helpful tast substantial moment i think would say a lot about why someone is being moved i think that you would find support with the th circuit definition they use sort of a more of a flexible tast somewhat similar the th but i think you would find support there where they are looking at at the purpose and the eubanks case that we cited they went back to i think the four circuit case and i was born and in the th circuit they said the movement within the same building was not abduction but they were looking at my issues or look at the purpose of why why the victims were being moved and so i think you could have that substantial movement test and look at why  i don't think that they i can't think of a decision that address directly address the purpose and point i think it's been more implied in some of the decisions specifically about restricted physical restraint like perhaps causing more harm to the potential that i the increasing likelihood the that wouldn't that be weird because i would suggest if you take them to a location from an isolated location to a new location that is a very crowded it would suggest that maybe there's less of a chance of harm but that would seem to be an obvious case of applying the abduction here expect because there was clearly a different location yeah i think anytime you're moving someone there is there's significantly from an original building outside the building there might be an increased likelihood of harm i think the typical robbery scenario there's going to be some movement and that's what the that's why there is this specific unhandsome and the restraining hansen is is there and i think a number of the cases recognize there's probably go you'll have your rebuttal  good morning your honour's me please the court my name is dan russo i'm assistant united states attorney from grand rapids michigan and here today i mean at the united states in the case in applying the abduction hance meant to the facts underlying mr hill's case the district court's decision if somebody mood an individual from the appellate side of the bench to be a power side of the bench would you say that that's a different location subject to the abduction under the plain language of the guideline and the terms that are used in your honor i would say that it is and the reason why i would say that where the reason why i think it matters here is because of the twin policy rationales underlying the guidelines in the calo case this court spoke about the fact that there was an increased risk of harm to underlie the justification i mean we have to read different location in the context you know we know it's neighbors physically restrained which includes some amount of movement you would think in locking somebody up so how how would you how would you arch you lead a case regarding what is required to establish physical restraint and that's st that there be forced movement of the victim nd that the victim be forced to actually a company the offender to a different location and then rd that that be to either facilitate the crime or the escape so that creates the clear line the mr hope points to for the defense points to there not being a clear line here with that three part test creates a very clear standard as to when the abduction hanson applies and when it recommends here and that the th circuit using the archer letter case would actually still dictate that the physical restraints what was the proper enhancement there and not the abduction handsomeness and that is because on the facts of the coleman case the robber was in the main lobby of the building the victim was in an adjoining office room the robber stayed there and told the victim come in here where the other victims are at that's a physical restraint because the victim was not accompanied by the offender at that point so this creates a very clear distinction and it again harmonizes with the sexual assault victim in an indian country case from up stairs to a downstairs bedroom and in the green case it was a bank manager who was awoken in their room and then moved into at least it appears the adjoining room the court found that that was enough there and as i just pointed out the coleman case is correctly decided on the government's approach as is the other case that the defense points to which is the united states versus smith hodges and the reason why the abduction enhanced it couldn't be applied there is because that's a felony possession case the controlling guideline in the smith hodge's case was to keep  wo point one in the district court applied in this court affirmed the physical restraint and handsome it as found in the general victim related just once in section three of the guidelines section three does not include an additional enhanced mean for abduction so that wasn't even are not into it two dollars in to be three dollars before a the languages if any person was abducted to facilitate commission of the offense were difficult to facilitate escape increased by four levels so that last part of the three part test comes from the the latter portion of the language of to be three point one before and that really harkens back to the twin policy rationales underlying the abduction guideline this court did discuss that in the kabul case and in the kabul case this court said the rationales here are to protect victims from the additional harm that may result during their forced accompanied movement in these kinds of situations and  to punish more harshly people who take these kinds of actions in furtherance of you their crime or their escape i would submit i know we have talked about hypotheticals even within one room but often if a victim is moved during a robbery at a gun or knife point and so the guidelines take that into account they recognize that and the plain language punishes that conduct more severely than a mere physical restraint because that the reality is that when a victim is forced to accompany an offender that has a gun or knife  store breakroom if it just like went across the store room you would say that it's still sort of applying it would depend on the other factors here it was clear that both the st and the rd factors were mad that there was forced movement and that it was to facilitate the crime or the escapes would depend on why they were moved it was in the room obviously if the tellers were instead i'm sorry not the tellers if the victims and the customer were in a large room and moved to the back of it so that they could what the ordinary meaning of abduction is as well sometimes you use i can think of examples where the supreme court where no term is defined they still think of what the term is abstract in order to help clear  the guideline in the commentary that directly interprets it is is controlling but the nd thing i would point the court to is the th circuit's decision in watley there the court did provide two different definitions for abduction but it stopped at then using generalities to consider what might constitute abduction when those definitions are drilled that down into forced accompanied movement within a single building would still constitute an induction i'm happy to go through those the watley circuit or the what the court cited the oxford english dictionary definition of defining abducted to mean a letter carried away improperly or kidnapped and black's laws defining it as the act of leading someone away by force or fraudulent persuasion common among those two is that someone is led away led led away from some position and while black's law does not define away at least that i could find the oxford english dictionary does and it defines it as expressing motion or direction from a place to a distance to some other place so as to be absent and as the government's brief points out the oxford english dictionary further defines a place to mean room available space or a space that can be occupied so even if the definitions of abducted that were used by the wily court are drilled down into they would constitute the conduct underlying mr hill's case would still constitute an abduction i know that there is some kneejerk intuitive appeal that someone has to be taken across that i would call it meter of what i would call it if you read words in context the context of a different location for instance when it comes to it's a different location than the place you just robbed i think there's a pretty good argument that that's the context of a different location within the meaning of  robbery you see what i'm saying when you think of you can say different location if you say a different location to within a building that it's perfectly clear that or a different location within this room then it's perfectly clear that with  two spots in that room could qualify as a different location but the problem that i see with the guy buying is that it doesn't have a modifier within a room or within a building or in the state of ohio and so the the question is how do we as as walky said how do we pick the correct level of generality and it's not intuitive to me but i think that the correct level of generality should be a different place within the bank but you're just robbed or here  it's used here with respect to robbery stand your are we do i believe that and i understand the concern that was animating both the th circuit and the th circuit in saying that the lever level of generality is here's what they're concerned with here i think when we have the guideline and the text interpret in the guideline not providing a level of generality we can have to return to the plain meaning and the policy rationale underlying the guideline and i acknowledge that there are many levels of generality that location could be applied to but the oxford english dictionary in the definitions before this court give us the most ordinary use of that term location and they indicate that it would include movement as your honor indicated within a s standard you would have us of which is really the th circuit asked in part if the victim was forced to move from his or her original position with sufficient force so it could actually be somebody sitting in that chair i suppose under your human who is forced to move country and that would still be an abduction if you the other two parts of the report tester met yes your honor that is correct my position is that in the government's position is that the plain language of the guideline or his commentary simply compels that conclusion but again it compels that conclusion because of the twin policy rationales underlying the guideline and the fact that there is an increased risk of danger or of harm to that person that doesn't read it so that we have to ordinary language you read the two provisions together that struck me as a physical restraint or you just you're moving them a little bit to restrain them and the vast majority of cases when you physically restrain somebody you're go situation where it would be a physical restraint but not an abduction additionally your honour's it's going to be a physical restraint if there is not movement so simply forcing someone to the ground or telling everyone to stay in place in the context of a bank robbery with a gun is going to still constitute a physical restraint taking those people and hurting them to some different location will be an abduction the plain language of the guideline catches that and the increased risk of harm to those people use the justification or the policy rationale second part of it has to be in furtherance of that yes your honor but here the distinction would be the abduction is moving the people to the back room the physical restraint would be tying in binding on the floor had they been told to stay in their original positions and then bam was a prize there for restrain adduction but there are also other specific of characteristics for firearms there's a number of them depend on how to fire misused and then also for actual harm to victims so we're looking at a very out instance someone has moved they're moved forcibly from their office they're moved forcibly to the the lobby where the bank robber is so you have at least in my view you have an accompany pretty are you aware of any cases that that hypothetical so that the closest i would be aware of would not specifically deal with this guy in line with but we did deal with a similar definition and ended in a different statute that i don't think applies here government's position is adopted it's the position of the biggest i've heard the government question but is that the physical restraint specific offense characteristic will be read out of the guidelines because all cases or essentially all cases that involve physical restraint will be now classified as abduction and get the higher offense level ok thank you thank you both of you for your arguments this morning we really do appreciate them obviously the circuits had a variety of approaches to the issue of the force and we'll do our best to decide it appropriately to be submitted and you may call