United States v. Ziesel
| Decision Date | 29 June 2022 |
| Docket Number | 20-4240 |
| Citation | 38 F.4th 512 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David Abram ZIESEL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Claire R. Cahoon, FEDERAL PUBLIC DEFENDER'S OFFICE, Toledo, Ohio, for Appellant. Matthew D. Simko, UNITED STATES ATTORNEY'S OFFICE, Toledo, Ohio, for Appellee. ON BRIEF: Claire R. Cahoon, FEDERAL PUBLIC DEFENDER'S OFFICE, Toledo, Ohio, for Appellant. Matthew D. Simko, UNITED STATES ATTORNEY'S OFFICE, Toledo, Ohio, for Appellee.
Before: ROGERS, STRANCH, and DONALD, Circuit Judges.
STRANCH, J., delivered the opinion of the court in which DONALD, J., joined. ROGERS, J. (pp. 521-24), delivered a separate dissenting opinion.
David Ziesel pleaded guilty to bank robbery, and was sentenced to 46 months’ imprisonment. In this appeal, Ziesel challenges the district court's application of a two-level enhancement for "physical restraint" under § 2B3.1(b)(4)(B) of the United States Sentencing Guidelines (USSG or Guidelines). Because neither the plain language of the Guidelines nor our case law supports application of the enhancement under the facts of this case, we REVERSE and REMAND for resentencing without the enhancement.
The facts in this case are undisputed. Ziesel entered a bank wearing a mask and a hooded sweatshirt, approached the tellers, and said "give me all the money you have." After the tellers emptied their drawers, Ziesel asked if they had a safe behind the counter. The tellers responded that they did not. At some point, "Ziesel told the tellers that ‘no one was going to get hurt here.’ " Before leaving with the money, Ziesel told the tellers to get on the floor. Ziesel did not have a weapon, nor did he imply he had a weapon.1
A federal grand jury indicted Ziesel on one count of bank robbery in violation of 18 U.S.C. § 2113(a),2 to which he pleaded guilty. Following Ziesel's guilty plea, the presentence investigation report (PSR) used the 2018 Guidelines to determine that Ziesel's base offense level was 19. Applying the two-level enhancement for "physical restraint" under USSG § 2B3.1(b)(4)(B), the PSR recommended a total offense level of 21, which when combined with a criminal history category of III, resulted in an imprisonment range of 46 to 57 months. Without the two-level, physical-restraint enhancement, the imprisonment range would have been 37 to 46 months. Ziesel objected to application of the physical-restraint enhancement.
At the sentencing hearing, the district court noted that application of the physical-restraint enhancement was "a close question" but, nevertheless, overruled Ziesel's objection and applied the enhancement. The district court reasoned that:
the simple communication "This is a bank robbery" connotes a certain degree of potential harm, whether a weapon is shown or not, and certainly control is exercised by the robber. ... And I think it actually involves a degree of movement, when you are standing upright, and then to be told to go into prone position by somebody who appears able to exercise substantial force over you. Whether in fact that turns out to be true or not, I don't think it matters.
Sentencing Tr. at 9-10.3 The district court added that Ziesel was not armed, but:
that doesn't change the fact that from the standpoint of the victims, they weren't about to ask "Show me the gun" before they showed you the money. They believed that you posed a clear and present danger to them. They obeyed your command. I do think that that involves restraint for the reasons I've stated.
Ziesel requested a downward variance to 37 months’ imprisonment, and the Government requested either an upward variance or a sentence at the top of the applicable Guidelines range. The district court noted that it was not inclined to vary upward, but it did consider a downward variance of 37 months’ imprisonment, as requested by Ziesel. Ultimately, the district court sentenced Ziesel to 46 months’ imprisonment, at the bottom of the Guidelines range as calculated using the physical-restraint enhancement, and it did not make any alternative findings.
Ziesel timely appealed and now challenges the application of the two-level, physical-restraint enhancement. The Government maintains the district court's interpretation of the physical-restraint enhancement is correct, but, if it is not, any resulting error is harmless.
Appellate courts review a district court's chosen sentence under the abuse-of-discretion standard. Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). "To determine whether a district court abused its discretion, we look to whether the sentence is reasonable." United States v. Walters , 775 F.3d 778, 781 (6th Cir. 2015). Sentences are examined for procedural and substantive reasonableness. Id. "Whether the district court properly applied a sentence enhancement under the Guidelines is [ ] a matter of procedural reasonableness." Id. Whether the undisputed facts of a case "warrant the application of a particular guideline provision" is a question of law that is reviewed de novo. United States v. Snelling , 768 F.3d 509, 512 (6th Cir. 2014) (quoting United States v. Rothwell , 387 F.3d 579, 582 (6th Cir. 2004) ). "At sentencing, ‘[t]he government bears the burden to establish enhancement factors, where contested.’ " United States v. Small , 988 F.3d 241, 257 (6th Cir. 2021) (quoting United States v. Silverman , 889 F.2d 1531, 1535 (6th Cir. 1989) ).
Where a defendant timely objects to a sentencing error, Federal Rule of Criminal Procedure 52(a) applies, and the government bears the burden of showing that any such error was harmless. See Molina-Martinez v. United States , 578 U.S. 189, 203, 136 S.Ct. 1338, 194 L.Ed.2d 444 (2016). "Under the harmless error test, a remand for an error at sentencing is required unless we are certain that any such error was harmless—i.e. , any such error ‘did not affect the district court's selection of the sentence imposed.’ " United States v. Hazelwood , 398 F.3d 792, 801 (6th Cir. 2005) (quoting Williams v. United States , 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) ).
Enhancements are a type of specific offense characteristic and are promulgated "for distinct and separate acts of violence in order to impose punishment based on the severity of the defendant's conduct." United States v. Perkins , 89 F.3d 303, 308 (6th Cir. 1996). The subsection of the Guideline at issue here is § 2B3.1(4), which contains two related enhancements addressing conduct involving abduction or restraint during the commission of a robbery:
(4)(A) If any person was abducted to facilitate commission of the offense or to facilitate escape, increase by 4 levels; or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape, increase by 2 levels.
"Abduction" is the more serious conduct addressed by the enhancement, and it is not at issue in this case. See United States v. Hill , 963 F.3d 528, 530 (6th Cir. 2020) ().
As we have previously explained: Perkins , 89 F.3d at 308 (quoting United States v. Rosario , 7 F.3d 319, 321 (2d Cir. 1993) ) (cleaned up). Accordingly, there must be something more than the existence of force or intimidation for the enhancement to apply.
The relevant conduct here involved Ziesel telling the bank employees to get on the ground. Ziesel did not have a gun, neither employee was touched, tied, bound, or locked up, and neither employee was instructed to move to another location. The question here is whether ordering the tellers "to the ground," without more, is conduct warranting the two-level enhancement. We begin with the plain language of the Guidelines. "Physically restrained" is defined as the forcible restraint of the victim such as by being "tied, bound, or locked up," USSG § 1B1.1, cmt. n.1(L), actions that did not occur here.
We have, however, previously addressed other conduct constituting "physical restraint" for purposes of § 2B3.1(b)(4)(B). In United States v. Coleman , 664 F.3d 1047 (6th Cir. 2012), we noted that "[m]ost circuit courts uphold the enhancement in similar robbery cases where a defendant limits a victim's freedom of movement by brandishing a firearm and compel[s] the victim to move from one location to another." Id. at 1050 (emphasis added). Coleman received the two-level enhancement for brandishing a BB pistol that resembled a handgun and for "order[ing] [the employee] to come out of his office and sit on the floor in the lobby" so the defendant "could better monitor [the employee's] activities." Id. at 1048, 1050. Recently, in United States v. Howell , 17 F.4th 673, 692 (6th Cir. 2021), a bank robber received the enhancement after keeping a teller on the floor at gunpoint while verbally threatening to kill her if the other tellers did not quickly give him the money. In Hill , 963 F.3d at 530, the defendant received the enhancement where he "bound [employees’] wrists and ankles with zip ties" after forcing them at gunpoint into a different room in the back of the store. In United States v. Smith-Hodges , 527 F. App'x 354, 356 (6th Cir. 2013), we reasoned from Coleman that a two-level enhancement for physical restraint under USSG § 3A1.3 applied where the defendant pointed a gun at the victim and ordered him to move to...
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