David Ziesel pleaded guilty to bank robbery. At sentencing, the district court found sufficient evidence to impose a 2-level enhancement for using “physical restraint” under USSG § 2B3.1(b)(4)(B). On appeal, the Sixth Circuit conducted a de novo review of the court’s application of the enhancement, finding it to have been procedurally unreasonable and harmful error, and remanded the case for resentencing.
During the robbery, Ziesel told the tellers, “Give me all the money you have.” After the tellers handed him money from their drawers, Ziesel ordered the tellers to the ground before leaving the bank. At no point during the robbery did he brandish a firearm or imply that he was carrying one, apparently ensuring the tellers that no one would get hurt.
The Sixth Circuit concluded that ordering the tellers to the ground, and their responsive compliance, did not, without more, constitute “physical restraint” for purposes of the enhancement. Although prior Sixth Circuit case law had not limited the enhancement to cases of actual restraint, the Court held that constructive restraint in this context required something more than a perpetrator’s command and a victim’s compliance, which are inherently present in any robbery by intimidation.
Having miscalculated the Guideline range, the error was presumptively harmful, and the Government was unable meet the level of certainty required for the Sixth Circuit to find the error harmless.
Appeal from the Northern District of Ohio
Opinion by Stranch, joined by Donald
Dissent by Rogers
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