United States v. Bell
Decision Date | 07 January 2020 |
Docket Number | No: 17-3792,: 17-3792 |
Citation | 947 F.3d 49 |
Parties | UNITED STATES of America v. Marquise BELL, Appellant |
Court | U.S. Court of Appeals — Third Circuit |
Marquise Bell challenges two enhancements to his sentence for robbing a Metro PCS store – one for the use of a dangerous weapon and the other for physically restraining the victim. For the reasons discussed below, we will affirm the District Court’s application of the enhancement for use of a dangerous weapon, reverse its application for physically restraining the victim, and remand for resentencing.
On September 15, 2015, Bell and Samuel Robinson entered a Metro PCS store located at 4229 North Broad Street, Philadelphia, Pennsylvania. Both men wore stockings over their faces to obscure their identities. Bell carried a weapon resembling a firearm. Upon entering the store, Bell physically confronted a store employee, by grabbing the employee’s neck, pointing the weapon at his neck, and throwing the employee to the ground. Bell then began to remove cash from the register. The employee attempted to stop the theft by grabbing Bell’s arm, causing Bell to strike the employee with the weapon. The blow caused a piece of the weapon to break off, at which time the employee realized the firearm was fake. The firearm Bell carried was, in reality, a plastic gun. The employee then stood up and attempted to stop the robbery. There was a struggle during which Bell pushed the employee away, allowing him and Robinson to flee the store with approximately $1,000.00 in cash.
During the sentencing hearing, Bell’s counsel read a statement from the employee describing the incident:
(App. A50-51.)
During his flight, Bell dropped his hat, which was seized by the Philadelphia Police and preserved for DNA testing. Approximately one year later, the police obtained a warrant for Bell’s DNA. When FBI agents, Task Force officers, and Philadelphia Police Officers went to Bell’s residence to execute the warrant, they found Bell hiding on the roof outside his bedroom window. Near Bell, the officers saw a plastic bag, from which a cardboard box marked "Winchester" protruded. The bag contained multiple rounds of various types, calibers, and makes of ammunition.
Bell was indicted in two separate one count indictments – one for being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g) and the second for Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a). He pled guilty to both indictments.
At sentencing, the District Court, over Bell’s counsel’s objections, imposed a two-level enhancement for physical restraint pursuant to U.S.S.G. § 2B3.1(b)(4)(B) and a four-level enhancement for use of a dangerous weapon, pursuant to U.S.S.G. § 2B3.1(b)(2)(D).1 After a three-level reduction for acceptance of responsibility, the District Court concluded that Bell had an offense level of 24 and a criminal history category of IV, resulting in a sentencing range of 77 to 96 months. After considering the § 3553 factors, the Court imposed a sentence of 86 months of incarceration, followed by three years of supervised release. This timely appeal followed.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
The parties disagree as to the appropriate standard of review to use in this case. Citing no cases, Bell asserts that we should apply de novo review to his challenges to the application of the sentencing enhancements. Relying on United States v. Richards , 674 F.3d 215 (3d Cir. 2012), the government posits that we should review for clear error. This misconstrues our holding in Richards .
As we stated in United States v. Grier , 475 F.3d 556, 570 (3d Cir. 2007) (en banc), "this Court will continue to review factual findings relevant to the Guidelines for clear error and to exercise plenary review over a district court’s interpretation of the Guidelines." We did just that in Richards ; we were not required to interpret the Guidelines because the appellant did "not quarrel with the District Court’s articulation of what it means to be a government official in a high-level decision-making or sensitive position, for the District Court used the definition of the enhancement exactly as it is recited in the Guidelines." Richards , 674 F.3d at 218. Instead, the appellant "disagree[d] with the District Court’s conclusion that the facts regarding his employment fit within the Guidelines definition of a government official in a high-level decision-making or sensitive position." Id. We, therefore, applied clear error review to the District Court’s factual findings.
Despite the government’s assertion that we are currently faced with a situation similar to that in Richards , we are not. Bell has not contested the facts of his offense. Instead, he challenges the District Court’s interpretation and application of two provisions of the Guidelines.2 We will review the District Court’s determinations de novo. See United States v. Paul , 904 F.3d 200, 202 (2d Cir. 2018) (); United States v. Anglin , 169 F.3d 154, 163 (2d Cir. 1999) ( .
On appeal, Bell raises two challenges to his sentence. The first – whether he physically restrained the victim – requires us to review sections 2B3.1(b)(4)(B) and 1B1.1 of the Sentencing Guidelines in order to discern what conduct the Sentencing Commission sought to encompass in the definition of "physically restrained." The second – whether Bell used a dangerous weapon – presents a less challenging analysis in light of our clear precedent on this issue.
Consideration of the enhancement for physical restraint involves two sections of the Sentencing Guidelines. Section 2B3.1(b)(4)(B) provides that "if any person was physically restrained to facilitate commission of the offense [of robbery] or to facilitate escape," the sentencing calculation should be increased by two levels. "Physically restrained" is defined in the application notes to § 1B1.1 as "mean[ing] the forcible restraint of the victim such as by being tied, bound, or locked up." U.S. Sentencing Guidelines Manual § 1B1.1 cmt. n. 1(K) (U.S. Sentencing Comm’n 2016) [hereinafter "U.S.S.G."].3
Looking only at the language used in the definition, it would appear clear that Bell did not physically restrain the store employee because he did not tie up, bind, or lock up the employee. However, we, along with many of our sister circuits, have held that the three examples provided in the definition of physically restrained are not an exhaustive list, but rather only examples of the types of conduct that fall within the meaning of the term. United States v. Copenhaver , 185 F.3d 178, 180 (3d Cir. 1999) (). See, e.g. , United States v. Ossai , 485 F.3d 25, 32 (1st Cir. 2007) ; United States v. Drew , 200 F.3d 871, 880 (D.C. Cir. 2000) ; United States v. Anglin , 169 F.3d 154, 164 (2d Cir. 1999) ; United States v. Hickman , 151 F.3d 446, 461 (5th Cir. 1998) ; United States v. Thompson , 109 F.3d 639, 641 (9th Cir. 1997) ; United States v. Stokley , 881 F.2d 114, 116 (4th Cir. 1989).
Id. at 182. We are now faced with a less clear situation that requires us to determine what factors to consider when determining if a defendant physically restrained a victim.
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