17-2702-cr
United States of America 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.
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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 Paul
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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 stole
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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.
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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 a
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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 leaves
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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 Commissionʹs 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 be
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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.
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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).
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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 matters
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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.
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