seventeen dutch thirty seven ninety two united states versus bell mr newman physically restrain means the forcible restraint of the victim and there's another phrase there and if the government's position were correct we would need that other phrase such as being tied bound  particular issue how they view on how should we create how should we think about it i'm sorry sir i said how should we think about it there are factors yes among the circuits that include the use of physical that i would divide of course the the way the courts have dealt with this in two into two camps of course one is where the courts have very clearly said that you have to have more than just a threat you have to have some kind of physical restraint you have to have what in the guideline itself is something similar at least to being tied found were locked up and i would argue that that the disservice that said merely pointing a gun particularly the tenth circuit merely pointing a gun i don't think they were really with all due respect reading that guideline and and thinking about in terms of statutory construction because if merely pointing a gun at somebody were enough there's new need for such as being tied down were locked up there has to be some behavior which is if not you're actually trying to find him were locked up at least cognitive ok so page seven of the sentencing notes where i read the the victim statement what he actually told the police i grabbed his arm he hit me with the gun that's when i knew it was fake it was plastic it broke and part of it fell over here pointing to the floor behind the register that's when i saw the piece on the floor i got up again to fight him but he grabbed the money from the register and ran out the door prior to that the evidence shows the very limited evidence shows that mr bell thr no way restrained there was not even an order from mr bell saying stay on the ground or up kill you or stay on the ground or all do whatever her or stay there there was nothing that was strained his movement he was basically knocked out of the way way restrained he was not he was certainly not tied bound opp were confined and i would ask your honor why are those words in there if the behavior doesn't have to be if not those specific but now i agree this is not so you do we really need to do we really need to pick a side i mean in copenhagen are we we are pretty careful we said we're not going to pick a side and you know we replied it seems to factors one was that the he was not impeded from any further action the victim i'm talking about feet he obviously perceived that the gun which was a fake and he jumped up and began struggling with mr bell who grabbed the money and ran i extraordinarily brief and frankly i don't know that it's my burden to establish the facts of the conviction as as they were and even assuming that he didn't know that just for the sake of argument that he didn't know that the gun was was plastic carry initially he was still not restrained he was still not confined and he made the decision to get up and start fighting with mr bell so there had to be something in his mind i mean if i  him on the floor if i've been knocked out a floor and somebody's got a firearm and i'm looking at i'm staying there i'm not moving i mean i i know firearms and you you respect them and clearly he didn't so but i don't think that's really what was necessary i think i think what you have to find i know you have to pick a side i mean that i thought that if i walked up your sake i saw it but i get the order so  i think it has to be something more similar to tied down or locked up it can't just be he's restrained in some manner the tenth circuit has said merely pointing the gun is enough and i  disagree i think that that makes the rest of the language in one b one point one the application of k irrelevant it makes it's a perk lewis such as being tied boundary locked up there has to be more than that in order to have physical restraint and remember your honors there was also an enhancement which is in my brief but i'm unless you have questions i'm not going to be arguing that for brandishing or using the got absolutely absolutely it makes makes the rest that language superfluous and i don't think that's with the sentencing commission intended to do i think when they they gave those examples if they wanted that kind  said practically every robbery that's going to have physical restraint is built into its definition a mere threat note i demanded could be considered physical restraint in that in that situation and i don't think that's what the sentencing commission intended when you know i'm is running out could you deal with the standard of review for this issue yeah but i don't think you do positive the all the courts including this court as i understand it have said that and i think because the facts are not dispute in this particular case i think it's the novo review but may i add died as a part of some i think under into standard that this is not physical restraint i think whether you used to to you as you apply it those facts that you do following the crew the law in order to find that you qualify under the sentencing guidelines or is physical restraint simply a fighting a apply the law the guidelines to the facts that that were not in dispute now what does this set of facts does does it is this physical restraint i t review because it is the government's position that the standard of review here quick that the courts application of the guidelines to the facts here is covered by the richards deferential clearer standard and in richard's actually it was very similar argument presented by the defendant which was that the nobel review necessarily replied because the facts were not in dispute and it was whether the facts whether those facts fit within the guidelines was a question of legal interpretation and the court said no where that where the test is purely factor written and the facts are not in dispute then the question becomes whether or not those fac richards that would be the way bit of approach this case bluford first changed the landscape back in two thousand when the supreme court looked at a fact intensive driven guideline analysis and said this is better left to the district court it's really not a question of legal not i said your honor i agree with that with your your honor statement i think richard change the approach that's applied in many fact intensive guideline scenarios should this court decide that this is one of those with a guideline is so they  find that it requires legal interpretation then yes to noble standard would apply we believe that there's enough of a definition here and it is similar to the leadership enhanced where they ply clear or of you and other other then it's an excuse we're going to reach the same result so it really doesn't matter in the long run whether you'd likely or not we just take the position with with fact driven guidelines and positions at this point cases that it's clear or if you when for some reason this victim decides that he's going to reach up and try to interfere with his ability to access the cash or why he does that we don't know ultimately not until after then so at this point what we have is a defendant who  approaches a victim with what appears or at least ostensibly is meant to appear to be a real gun precedent in the victim's neck grows into the ground that is the use of physical force and then restrained him however momentarily and then it may have provides for this overlap it's the guideline it has specific and hands with her specific types of conduct if you brandish you're using i'm you get that there's a certain and handsome that applies to that this is whether or not this separate conduct the physical restraint of the victim the laying on of hands the throwing to the ground a pointed a gun at the victim to prevent him from interfering with the robbery in progress the removal of the cash from the cash or yes it is not a kin to those sentence main argument was it was no big it was you just did this momentarily it was another long enough to ration what the defendant did there was approach a customer service area he granted a customer who was sitting at a desk told her to get up she didn't move so he put his hands around her neck and moved her a couple of feet and then like up at that point he went to grab somebody else that didn't work his co defendants in the meantime are able to get the money out of the drawer in the meantime the discovery as a hair brush and not a gun they do complete the robbery but the court rejected specifically said there's nothing in the guideline that talks about time it talks about whether or not the restraint and able to get them to commit the crime that's what happened here i think nothing in the record to show how long that lesson but the argument was in the restraint was so brief that it didn't affect that so in other words it yes there was there's no question that the restraint year was brief but our position is it was your street and there's no need for this court as your honour's have suggested to come up with to take sides so to speak there are different camps here we have the restrictive second circuit view but really everything when you look at the case law it's very fact and you get an enhanced one for a gun you're going to have it in the hands of a corpuscle restraint i can't be right that isn't what the sentencing guidelines met when they say specifically that's essentially and they give examples so taking somebody to the back room and locking them up type of thing that doesn't appear to be what we have here that isn't they as i try and read or we can see this is not the equivalent of the examples however have the broadest view of this and handsome and those are not facts here yes and there is no argument there that that might apply in every robbery case as the second circuit very forcefully found that that was just not sufficient but here we have somebody actually physically laying hands on throwing a person to the ground when you gun them and standing over them this is not going to occur in every robbery so every time you go in to do a robbery and you hit somebody it's a physical restraint no if he had just hi related concept of the duction where one of the victims this is a smith case from twenty fourteen fought back the whole time she disregarded he kidnapped her quarter in a car drove her back to the bank and was going to have broken the law she disobeyed all these things and managed to escape and that as the court emphasized the boldness of the that if the victim's actions do not lessen the defendant's culpability the focus should be on the defendant's actions not how this victim for whatever reason being a brave or bold person decided to the use of his more sustained focus on the victim for some period of time providing the victim with no alternative but compliance exerting control of the bank by taking away their freedom of movement you know obviously talk about copen in space and that seems to be a pretty poor assessment of the different factors what should we be looking at to try to  floor directly below the defendant of for the purpose of him being able to access that cash drawer unimpeded so that it's that extra element it's not if he had just walked in and said get down on the floor over there we might not be we would not be having the proximity of the of the person assaulted to the perpetrator is in this case yes that's that's exactly because that was the whole point of putting him on the floor and restraining him was because he was right there in what i'm told and just move away he didn't he put him underneath up so he could get to the caster i don't know how big this area was perhaps it was quite small and there was another viable option but in that sense and what i think this illustrates is why it is such a factor in test that there really is it's not necessary nor is it very it's not possible to come up with a comprehensive definition even the second circuit has refused to do that and they have been on the far this in saying what and i think that on judge greenway put his finger on on what the what the issue is here if you look at a more recent night circuit case parker which the government did cite in its brief in that  case the the court said however the degree to which the victim was restrained was not appreciably different from that of a bank tellers are made to get down by robbers who yell the command generally carry one in the bank indeed cases holding  defend it physically restrain his victims usually involve eight and you put your finger on it your honor sustained focus on the restraint person that lasted long enough for the robber to direct the victim into a room order of the victim to walk somewhere and lastly as this mckeown said he could have said move away or something like that will i'm sure he had said move here move very move away the government will be arguing with you that that was physical restrain because he had the person move in this case there was no movement there was no confining it was simply not going to be ground mr bell got about went on with his improper and illegal and i'm not acceptable