1 17-2702-cr

United States of Americ a v. St. Juste (Paul)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2018

Submitted: August 14, 2018 Decided: September 18, 2018

Docket No. 17

‐ 2702

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UNITED STATES OF AMERICA,

Appellee,

v.

WENSLEY PAUL,

Defendant

– Appellant. 1

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Before: NEWMAN, POOLER, Circuit Judges, and COTE, District Judge. 2

Appeal from the August 22, 2017, judgment of the District Court for the

Eastern District of New York (Dora L. Irizarry, Chief Judge) sentencing Wensley

Paul to 108 months of imprisonment for his role in a robbery and a firearms

1 The Clerk is requested to amend the official caption.

2 Judge Denise Cote, of the United States District Court for the Southern District of New

York, sitting by designation.2 offense. The Appellant challenges a two level physical restraint enhancement,

U.S.S.G. § 2B3.1(b)(4)(B), used to calculate a Sentencing Guidelines sentencing

range before imposition of a below Guidelines sentence.

Remanded for recalculation of the sentencing range without the

enhancement, and resentencing.

Mitchell Joel Dinnerstein, New York, NY,

submitted a brief for Appellant Wensley

Paul.

Richard P. Donoghue, U.S. Atty., Brooklyn, NY,

Susan Corkery, Asst. U.S. Atty., Keith D.

Edelman, Asst. U.S. Atty., Brooklyn, NY,

submitted a brief for Appellee United States

of America.

JON O. NEWMAN, Circuit Judge:

The Federal Sentencing Guidelines provide for a two level increase in the

base offense level for robbery “if any person was physically restrained to facilitate

commission of the offense.” U.S.S.G. § 2B3.1(b)(4)(B). This appeal requires

interpretation of the words “physically restrained,” a matter that has produced

different views among the courts of appeals that have encountered it. The appeal

is from the August 22, 2017, judgment of the District Court for the Eastern District

of New York (Dora L. Irazarry, Chief Judge) sentencing Appellant Wensley Paul3 to a below Guidelines sentence of 108 months of imprisonment for his role in a

robbery and a firearms offense. The District Court used the physical restraint

enhancement in calculating Paul’s Guidelines sentencing range.

We conclude that the undisputed facts, revealed by a surveillance

videotape, show that no one was “physically restrained” within the meaning of

the applicable guideline during the robbery, and we therefore remand for

recalculation of the sentencing range without the two level enhancement, and for

resentencing.

Facts

The facts of what actions were taken during the robbery are observable from

a videotape made by a surveillance camera. What was said is detailed in the

presentence report (“PSR”). On September 27, 2016, the Appellant entered the Mill

Park Pharmacy in Brooklyn, NY, with co

‐ defendants Gregory St. Juste and Max

Narcisse Jr. St. Juste told a store clerk not to move or he would shoot. St. Juste then

pulled out a gun and, by gestures, directed another clerk toward the check

‐ out

counter, yelling, “If you turn back around I’m going to shoot you. Where’s the

safe? Where’s the Oxy [presumably, oxycodone]?” Narcisse then guided the clerk

behind the counter to the cash register, which the clerk opened. Narcisse then stole4 cash, cigarettes, a cell phone, and an employee’s purse. The Appellant, who was

keeping lookout throughout the robbery, then announced “[I]t’s time, let’s go,”

whereupon the robbery crew left the store and were driven away by another co

‐

defendant. The total value of the stolen items was $1,205.

Later that day, the police tracked down the robbery crew’s getaway car and

arrested the Appellant and the rest of the crew.

The Appellant was charged with Hobbs Act robbery conspiracy in violation

of 18 U.S.C. § 1951(a) (“Count 1”), and brandishing a firearm during a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (“Count 2”). He pled guilty to

both counts. The PSR began a Guidelines calculation with a base offense level of

20, see U.S.S.G. § 2B3.1(a), added two levels for physically restraining a person

during the offense, see id. § 2B3.1(b)(4)(B), and one level because obtaining

narcotics was an object of the offense, see id. § 2B3.1(b)(6), subtracted three levels

for acceptance of responsibility, see id. § 3E1.1(a), (b), for an adjusted offense level

of 20, which in Criminal History Category (“CHC”) I yielded a sentencing range

of 33

‐ 41 months. The PSR then added 84 months for the mandatory minimum

consecutive sentence required by 18 U.S.C. § 924(c)(1)(A)(ii) for brandishing a

firearm, producing a total sentencing range of 117 to 125 months.5 At sentencing, the District Court considered and rejected the Appellant’s

objection to the physical restraint enhancement. In doing so, the Court cited

application note 6 to Guidelines section 2B3.1, which explains subsection

2B3.1(b)(2)(F). That subsection provides for a two level increase in the base offense

level “if a threat of death was made.” The enhancement for physical restraint,

which was applied to the Appellant, is explained in application note 1(K) to

subsection 1B1.1, which we consider below. However, the District Court

acknowledged that application note 6 was “not directly on point with respect to

the restraint enhancement,” but was nonetheless “at least instructive.”

Accepting the PSR’s Guidelines sentencing range of 117 to 125 months, the

District Court imposed a below Guidelines sentence of 108 months

— 24 months

on Count 1 and the required 84 months consecutively on Count 2.

Discussion

The only issue on appeal is whether the two level enhancement for

physically restraining a person during the robbery was validly imposed. Without

the two level enhancement, the Appellant’s adjusted offense level for the robbery

would have been 18, yielding in CHC I a sentencing range of 27

‐ 33 months, to

which the 84 consecutive months required on count 2 would have produced a6 sentencing range of 111

‐ 117 months, instead of 117

‐ 125 months. Although the

Appellant’s sentence was below the applicable Guidelines sentencing range even

with the two level enhancement, the Supreme Court has instructed that every

sentencing determination should begin with a correct Guidelines calculation, see

United States v. Gall

, 552 U.S. 38, 49 (2007), and, even with a sentence outside the

Guidelines range, an appellate court must “first ensure that the district court

committed no significant procedural error, such as

. . . improperly calculating[] the

Guidelines range,” id

. at 51; see United States v. Ortiz

, 621 F.3d 82, 85 (2d Cir. 2010).

The validity of the enhancement therefore must be considered.

The Government contends that the rigorous standards of plain error review

apply to such consideration because the Appellant made no objection to the

District Court’s fact

‐ finding. However, the issue on this appeal is not the factual

question of what happened to the store employee; it is the legal question whether

the physical restraint enhancement applies to the undisputed facts depicted in the

videotape, and the Appellant objected to the enhancement. We recognize that a

videotape might not always establish undisputed facts, as Justice Stevens has

noted, see Scott v. Harris

, 550 U.S. 372, 396 (2007) (Stevens, J., dissenting)

(videotaped car chase presented jury issue), but in this case the videotape leaves7 no doubt as to what occurred. The Appellant’s confederate St. Juste ordered the

store clerk at gunpoint to go to the cash register. The question is whether that

action is a physical restraint to which the Guidelines enhancement applies.

The Sentencing Commission has explained what it means by physical

restraint in application note 1(K) to subsection 1B1.1 of the Guidelines. That note

states: “‘Physically restrained’ means the forcible restraint of the victim such as by

being tied, bound, or locked up.” U.S.S.G. § 1B1.1, comment. (n.1(K)).

In United States v. Anglin

, 169 F.3d 154 (2d Cir. 1999), where the offense was

bank robbery, this Court took guidance from the examples in application note

1(K):

“We think that displaying a gun and telling people to get

down and not move, without more, is insufficient to

trigger the ‘physical restraint’ enhancement. Such

conduct is materially different from the Guidelines

examples, each of which involves a restraint of

movement by the use of some artifact by which the victim

is ‘tied’ or ‘bound’

. . . or by the use of a space where the

victim is ‘locked up’

. . . . The Application Note examples,

while not imposing inflexible limitations upon the phrase

‘physical restraint,’ nonetheless are intended as

meaningful signposts on the way to understanding the

Sentencing Commission ʹ s enhancement purpose.”

Id

. at 164. We emphasized that “the restraint must be ‘physical.’” Id

. To hold

otherwise, we pointed out, would mean that “virtually every robbery would be8 subject to the 2

‐ level enhancement for physical restraint unless it took place in

unoccupied premises.” Id

. at 165.

Other courts have also ruled that the physical restraint enhancement does

not apply where crime victims were ordered to lie down or merely move. See

United States v. Garcia

, 857 F.3d 708, 710, 713 (5th Cir. 2017) (enhancement does not

apply where customers ordered at gunpoint to get down on the floor during gun

store robbery); United States v. Drew

, 200 F.3d 871, 880 (D.C. Cir. 2000)

(enhancement does not apply where defendant ordered his wife to leave her

bedroom and walk down the stairs at gunpoint); United States v. Doubet

, 969 F.2d

341, 346 (7th Cir. 1992) (dictum that enhancement would not apply to ordering

people during robbery to move to one side of a room).

Several courts have ruled that the physical restraint enhancement applies

where victims were ordered to move to a different room or a confined space. See

United States v. Coleman

, 664 F.3d 1047, 1050

‐ 51 (6th Cir. 2012) (enhancement

applies where victim forced at gunpoint to walk out of his office to a place where

defendant could better monitor his activities); United States v. Taylor

, 620 F.3d 812,

815 (7th Cir. 2010) (enhancement applies where teller ordered at gunpoint to move

from vault to teller’s station); United States v. Stevens

, 580 F.3d 718, 721

‐ 22 (8th Cir.9 2009) (enhancement applies where bank employees during robbery ordered at

gunpoint to move into unlocked bank vault); United States v. Nelson

, 137 F.3d 1094,

1112 (9th Cir. 1998) (enhancement applies where customer and employee ordered

at gunpoint to move to back room); United States v. Thompson

, 109 F.3d 639, 641

(9th Cir. 1997) (enhancement would apply where teller ordered at gunpoint to

move from teller area to unlocked vault); United States v. Jones

, 32 F.3d 1512, 1519

(11th Cir. 1994) (enhancement applies where customers and employees ordered at

gunpoint to move into a safe room).

Some courts have interpreted the physical restraint enhancement more

broadly to apply where people at a crime scene are told not to move, to kneel, or

to get on the floor. See United States v. Miera

, 539 F.3d 1232, 1236 (10th Cir. 2008)

(enhancement applies where bank customers during robbery told at gunpoint not

to move); United States v. Wallace

, 461 F.3d 15, 34

‐ 35 (1st Cir. 2006) (enhancement

applies where one victim ordered not to move and defendant’s co

‐ conspirator

blocked another victim’s escape by jumping in front of her and ordering her to

stop); United States v. Thompson

, 109 F.3d at 641 (enhancement would apply where

bank customer during robbery told at gunpoint to get on floor).10 In the pending appeal, the direction given to the store employee to move to

the cash register is more extensive than ordering customers to lie on the floor

during a bank robbery but less extensive than ordering customers and employees

to another room or an unlocked bank vault. The most significant aspect of the

employee’s movement is not that it was merely to a different spot within a room

where the robbery occurred. Rather, what weighs against the physical restraint

enhancement is that the employee was ordered to go to the spot where an

employee is often directed to go in many store robberies

— to the cash register.

The main message of this Court’s decision in Anglin is that in the absence of

physical restraint similar to being bound or moved into a locked or at least a

confining space, the enhancement is not to be added where the direction to move

is typical of most robberies. We need not decide whether ordering more extensive

movement or coercing movement by physical contact is required for the physical

restraint enhancement.

The Sentencing Commission has decided the base offense level for robbery,

and provided enhancements for, among other things, inflicting injury, see U.S.S.G.

§ 2B3.1(b)(3), and the amount of money taken, see id

. § 2B3.1(b)(7), both matters11 that can vary in seriousness among robberies. Adding the enhancement in this case

would simply add punishment to conduct that is typical of most store robberies.

Conclusion

The case is remanded with directions to calculate an adjusted offense level

for the robbery offense without the enhancement for physical restraint and then

resentence the Appellant as the District Court deems appropriate.