In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1750

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARTY TAYLOR,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 09-cr-119-bbc-01—Barbara B. Crabb, Judge.

ARGUED AUGUST 4, 2010—DECIDED SEPTEMBER 2, 2010

Before POSNER, ROVNER, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge. The defendant was charged,

along with Arlandis Issac, with armed bank robbery in

violation of 18 U.S.C. §§ 2113(a), (d). He pleaded guilty

and was sentenced to 110 months in prison. (Issac, not

an appellant in this case, also pleaded guilty and was

sentenced to 168 months.) The question presented by

the appeal is whether the district judge was correct to

add two levels to the defendant’s base offense level
2 No. 10-1750

pursuant to section 2B3.1(b)(4)(B) of the federal sentencing guidelines. That section requires the enhancement if a person is “physically restrained to facilitate

the commission of the offense [of robbery] or to facilitate

escape.” The term “physically restrained” is defined as

“the forcible restraint of the victim such as by being

tied, bound, or locked up.” U.S.S.G. § 1B1.1, application note 1(K). The enhancement raised the defendant’s

guidelines sentencing range from 92-115 months to 110-

137 months. (These ranges include a six-level increase

above the defendant’s base offense level because he had

used a gun in the robbery.) The judge thus gave him a

sentence that was at the bottom of the range that the

enhancement for physical restraining lifted him into

and below the maximum without the enhancement.

The defendant and Issac had entered the bank with two

other men. With the other two guarding the lobby, the

defendant ordered a teller at gunpoint to open her

money drawer while Issac went to the vault at the back of

the bank where another teller was standing, whom Issac

ordered at gunpoint to get down on her knees. He

tugged her back to a standing position and with one hand

holding a gun pointed at her back and the other placed

on the back of her neck or head led her from the

vault to her teller’s position, shoved her, face down, to

the floor, and held her there. The robbers looted the

tellers’ money drawers and fled.

The enhancement for physically restraining the second

teller in order to facilitate the robbery was based not on

anything the defendant had done but rather on Issac’s
No. 10-1750 3

conduct, which the judge deemed “relevant conduct”

of the defendant. See U.S.S.G. § 1B1.3(a)(1)(B). That

ruling is not questioned but the judge’s reasoning in

imposing the enhancement is. She said: “I’m not at all

convinced that being moved at the point of a gun is all

that different in impact, effect on the victim[,] as being

tied, bound or locked up. The person is physically restrained from moving in any direction but the direction

in which the robber wants her to go. Now it’s true the

gun was not pointed directly at her face . . ., but the

gun was there.” The judge added that Issac had “pushed

[the teller] to the ground and pushed [her] in the small

of her back to make sure she was on the ground . . . . [H]e

walked her into the other room while holding a firearm.

I think that kind of activity, moving from place to

place . . . where the firearm is being held clearly to be

used on you if you make the wrong move, . . . complies

with the definition of forcible restraint of a victim.”

Even if Issac’s conduct didn’t satisfy the guideline

definition of physical restraint, if the judge reasonably

thought it as evil as, say, handcuffing the teller and

locking her in the vault—conduct that clearly would

satisfy the definition—she could increase the defendant’s sentence without worrying about the definition. A sentencing judge in this post-Booker era is entitled

to enhance a sentence whether or not the technical requirements of the guidelines are met. But since the

judge based her sentence instead on her understanding

of the physical-restraint guideline we must decide

whether that understanding was correct.
4 No. 10-1750

Had she based the enhancement not on Issac’s having

pointed his gun at the teller to control her movement

but on his having shoved and dragged or pushed her to

the floor and held her down, there would be no issue

for appeal; that would be “physically restraining” in

even the narrowest sense of the term. United States v. Old

Chief, 571 F.3d 898, 901 (9th Cir. 2009); United States v. Ossai,

485 F.3d 25, 32 (1st Cir. 2007); United States v. Foppe, 993

F.2d 1444, 1448, 1452-53 (9th Cir. 1993). But instead she

emphasized the use of the gun to force compliance with

Issac’s command that the teller go from the vault to the

teller area. The defendant argues that threatening a

person with a gun is not “physically restraining” even if

the purpose is to compel a person to move or not move

as the robber commands.

He claims that Begay v. United States, 553 U.S. 137 (2008),

holds that a statute or regulation that provides a list

of examples to define a crime cannot be applied to any

behavior that is not relevantly identical to the examples.

In the case of the “physically restraining” sentencing

guideline the list is “tied, bound, or locked up,” and

the defendant argues that since all these are forms of

physically preventing or limiting movement, threatening

a person cannot fit within the guideline. But he

flinches when it comes to a robber’s spraying mace on

a person to facilitate the robber’s escape, as in United

States v. Robinson, 20 F.3d 270, 279 (7th Cir. 1994), which

held the act to be a form of “physically restraining” the

victim. He thinks Robinson may survive Begay; he says

that “spraying mace is arguably consistent with being

‘tied, bound or locked up’ insofar as it creates a restraint
No. 10-1750 5

that stays in place after the robber has left.” But that

can’t be right; it would mean that if the robber

had handcuffed a teller but removed the handcuffs on

his way out (maybe he wanted them for his next bank

robbery), he could not be given the sentencing enhancement for physically restraining a person.

What is true is that a statutory list of examples of conduct that violates the statute can be a clue to the

statute’s intended scope; that is the core of good sense

in the “canon of construction” known as eiusdem generis

(Latin for “of the same kind,” in law Latin usually

spelled ejusdem generis). The examples are a substitute

for or supplement to a definition. Begay was interpreting a statute that defined as a violent felony an act

or series of acts that constitute “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of

physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii)

(emphasis added). The examples provided help in interpreting “conduct that presents a serious potential risk

of physical injury to another.” The Court held that

driving under the influence, although a dangerous

activity, was not within the statute’s scope because it

lacked the essential character of the listed crimes, which

the Court described as “purposeful, violent, and aggressive” conduct. 553 U.S. at 144-45.

The essential character of conduct that is subject to the

physical-restraint guideline (which defines “physically

restraining” only tautologically, as “forcible restraint”) is

depriving a person of his freedom of physical movement,
6 No. 10-1750

United States v. Old Chief, supra, 571 F.3d at 901; United

States v. Plenty, 335 F.3d 732, 736 (8th Cir. 2003); United

States v. Checora, 175 F.3d 782, 791 (10th Cir. 1999), and this

can be accomplished by means other than creating a

physical barrier to movement. Hitting a person over

the head with a two-by-four will make him incapable,

for a time at least, of any physical movement. But it

won’t create a physical barrier, as a locked door does;

nothing but his being unconscious prevents him from

moving. But so what? There is a difference, from a

penal standpoint, between deliberately burning down

a house and driving while drunk; but what is the

penologically relevant difference between locking a

teller in a vault, on the one hand, and knocking her senseless (if we ignore the injury in the latter case, which

would earn the assailant an additional enhancement,

U.S.S.G. § 2B3.1(b)(3))—or pointing a gun at her—on the

other hand?

The difference, though it has penological relevance

only by virtue of the structure of the guidelines, is the sixlevel enhancement that the defendant received for using

a gun. When he pointed his gun at a teller and told her

to open her money drawer, he effectively prevented her

from responding that she’d be happy to do that in a

moment but first she’d like to go outside for a smoke.

But it is not suggested that since he prevented her

from moving, as she doubtless would have wanted to

do, he should get the two-level physical-restraint enhancement on top of the six-level enhancement for

use of a gun. For that would make the enhancement

available in every robbery case, since the robber must
No. 10-1750 7

always make his victim stay still while being robbed.

But a characteristic shared by all instances of a crime

is reflected in the base offense level for the crime and

therefore is unavailable for use as an enhancement.

United States v. Rodgers, 610 F.3d 975, 978 (7th Cir.

2010); United States v. Senn, 129 F.3d 886, 897 (7th

Cir. 1997); United States v. Reese, 2 F.3d 870, 895 (9th Cir.

1993); United States v. Butt, 955 F.2d 77, 88-89 (1st Cir.

1992). That would be double counting. What then is the

difference between the defendant’s use of the gun and

Issac’s use, the latter being the basis for the “physically

restraining” enhancement?

We examine that question through the lens provided

by two of our previous decisions. The first, United States

v. Doubet, 969 F.2d 341, 346 (7th Cir. 1992), abrogated on

unrelated grounds by United States v. Dunnigan, 507 U.S.

87 (1993), states that “herding victims into a defined

area” is not “physically restraining” them if all that’s

involved is “simply directing them to one side of the

room and admonishing them not to move . . . . Were

it otherwise, enhancement would be warranted virtually

every time an armed robber entered a bank, for a threat

not to move is implicit in the very nature of armed robbery.” (Nor does such “herding” amount to “abduction,”

United States v. Eubanks, 593 F.3d 645, 652-54 (7th Cir.

2010), which when done to facilitate the offense or

escape gives rise to an additional four-level enhancement. U.S.S.G. § 2B3.1(b)(4)(A).) Yet in Doubet we

upheld the enhancement because the defendant had

ordered the tellers to go into a bathroom and told them

that if they tried to leave he’d blow their heads off—a
8 No. 10-1750

credible threat because he was carrying a sawed-off

shotgun. This was “herding,” but went a step beyond

“simply directing.”

In the second case, United States v. Carter, 410 F.3d 942,

954 (7th Cir. 2005), after repeating the qualification in

Doubet we upheld the physical-restraint enhancement

where the defendant, “in the immediate presence of [a

teller], focused his gun on her and then, sustaining that

focus, moved her out of the bank’s vault to her drawer

against her will.” That is like our case (minus the physical

contact); it goes beyond Doubet by not requiring confinement.

Carter governs our case. It accords with the decisions

in all the comparable cases that we’ve found in the

other courts of appeals, United States v. Stevens, 580

F.3d 718 (8th Cir. 2009); United States v. Miera, 539 F.3d

1232, 1235-36 (10th Cir. 2008); United States v. Ossai, supra,

485 F.3d at 32; United States v. Wilson, 198 F.3d 467, 472 (4th

Cir. 1999); United States v. Copenhaver, 185 F.3d 178, 182-83

(3d Cir. 1999); United States v. Nelson, 137 F.3d 1094, 1112

(9th Cir. 1998); United States v. Jones, 32 F.3d 1512, 1519

(11th Cir. 1994), and we consider it sound and decline

the defendant’s invitation to overrule it. Whether a

pointed gun is used to move a person into an unlocked

room and keep him there, or used to move a person

from one part of the robbery scene to another, the

person’s freedom of movement is restrained as effectively as by shoving or dragging him into a room and

locking the door. The type of conduct found in this case

is a feature of many robberies but not all; goes a step,
No. 10-1750 9

albeit a modest one, beyond the mere aiming of a gun at

a stationary robbery victim (United States v. Miera, supra,

539 F.3d at 1236, gave, as an example of a bank robber

who would not be subject to the enhancement, one

who “simply walked up to the teller’s station with a gun

visible in his waistband and demanded money”);

and provides an a fortiori justification for the modest

sentencing enhancement in this case—for remember that

the sentence the judge imposed was within what would

have been the guidelines range without the enhancement. The distinctions among the cases of restraint by

gun are so fine, however, that sentencing judges might be

better advised to assess a robbery defendant’s conduct

in such cases without reliance on the physical-restraint

guideline, as we said earlier the judge could have done

in this case.

One small matter remains to be considered. The

judge ordered the defendant to participate in the Inmate

Financial Responsibility Program, 28 C.F.R. § 545.10.

That was error; participation is voluntary. United States

v. Munoz, 610 F.3d 989, 997 (7th Cir. 2010); United States

v. Boyd, 608 F.3d 331, 335 (7th Cir. 2010); United States

v. Lemoine, 546 F.3d 1042, 1047 (9th Cir. 2008).

The judgment is modified accordingly, and as

modified is

AFFIRMED.

9-2-10