United States v. Reynos

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________

No. 11-1398
__________

UNITED STATES OF AMERICA

v.

QUINTRELL REYNOS,

Appellant
__________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania

(D.C. No. 2-09-cr-00618-002)
District Judge: The Honorable Mitchell S. Goldberg

ARGUED JANUARY 10, 2012

BEFORE: RENDELL, AMBRO, and
NYGAARD, Circuit Judges

(Filed : May 22, 2012)
Megan S. Scheib, Esq. [Argued]
William J. Winning, Esq.
Cozen O’Connor
1900 Market Street, 3rd Floor
Philadelphia, PA 19103
Counsel for Appellant

Joseph T. Labrum, III, Esq.
Robert A. Zauzmer, Esq. [Argued]
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
__________

OPINION OF THE COURT
__________

NYGAARD, Circuit Judge

This appeal asks us to determine whether the District
Court erred by enhancing the Appellant’s offense level with a
4-level increase for an abduction. Although the issue is
simply stated, the question of what constitutes an abduction
within the meaning of U.S.S.G. § 2B3.1(b)(4)(A) has not
been addressed by this Court until today.

I.

It was nearly midnight on April 18, 2009, when
Appellant Quintrell Reynos and another individual robbed
Ed’s Pizza House in Philadelphia. Reynos was charged with
Hobbs Act robbery and conspiracy to commit Hobbs Act

2
robbery, violations of 18 U.S.C. § 1951(a) and 2 (Counts One
and Two) and with using and carrying a firearm during a
crime of violence, in violation of 18 U.S.C. §§ 924(c) and 2
(Count Three). 1 Reynos pleaded guilty to all three counts. At
the plea hearing, the Government set forth the following
factual background:

Three witnesses were working at
the pizza shop at the time of the
robbery: Juan Gutierrez, Jose
Canabill, and Julian Costeo.
Gutierrez 2 was moving from the
cash register to the pizza oven
shortly before midnight when he
observed the other employees
backing-up in the direction of the
back door. Believing a robbery
was about to take place, Gutierrez
and his fellow employees went to
the back of the shop and locked
themselves into the bathroom.
One of the workers called the
police from a cell phone.

1
The Hobbs Act, codified at 18 U.S.C. § 1951, is a federal
law prohibiting actual or attempted robbery or extortion that
affects interstate or foreign commerce. Section 1951 also
proscribes conspiracy to commit such a robbery or extortion
without reference to the conspiracy statute at 18 U.S.C. § 371.
2
We correct the phonetic misspelling of Gutierrez’s name in
the transcript here, and throughout our opinion.

3
Thereafter, the black males [sic]
started to kick in the bathroom
door, gained entry and said he
needed one of them to open up the
cash register or I’ll start shooting.
[Employee] Gutierrez saw the
male who he later identified as a
person who frequented the store
regularly and he was later
identified as Quintrell Reynos and
it was Reynos who brandished
what Gutierrez has described as a
large, black automatic pistol.

At Reynos’ demand, Gutierrez
opened the cash register. Reynos
took the money in the cash
register and then stated “do you
have any more money? Reynos
started to search Gutierrez.
Reynos then said, “Jose, where’s
the money?” It was at this point
that Gutierrez recognized Reynos
from seeing him in the store many
times before and serving him
food. Reynos asked for keys to
the back door. Gutierrez
explained that the key was in the
back. Reynos then moved toward
the back of the shop and at that
point, all of the employees ran out
the front door of the shop.

4
Reynos did not challenge these facts.

A presentence report was prepared. Pursuant to the
Sentencing Guidelines, Reynos’ base offense level was set at
20. The PSR recommended a 4-point upward adjustment in
the offense level for abducting the pizza shop employees,
pursuant to U.S.S.G. § 2B3.1(b)(4)(A). The PSR also
recommended a 3-point reduction in the offense level,
resulting in a total base offense level of 21. Reynos’ criminal
history category was originally put at a Category III, but was
later reduced to a Category I.

Thus, the advisory sentencing range was identified as
between 37 and 46 months incarceration. A mandatory
consecutive sentence of 120 months was also called for as a
result of Reynos’ violation of 18 U.S.C. § 924(c).

The District Court, over Reynos’ objection, agreed
with the PSR and enhanced his offense level by 4 points,
finding his actions to have constituted an abduction under the
Guidelines. After considering all of the appropriate
sentencing factors, the District Court imposed a sentence of
157-months imprisonment. Reynos now appeals, arguing that
the District Court procedurally erred by enhancing his offense
level for abducting the pizza shop employees.

II.

The District Court had jurisdiction pursuant to 18
U.S.C. § 3231 and we have appellate jurisdiction under 28
U.S.C. § 1291. “When reviewing the sentencing decisions of
the district courts, we exercise plenary review over legal
questions about the meaning of the [S]entencing [G]uidelines,

5
but apply the deferential clearly erroneous standard to factual
determinations underlying their application.” United States v.
Collado, 975 F.2d 985, 990 (3d Cir.1992). We assess whether
a district court committed a “significant procedural error” and
whether the ultimate sentence was substantially reasonable.
United States v. Larkin, 629 F.3d 177, 181 (3d Cir. 2010).

Here, Reynos challenges only the procedural
reasonableness of his sentence. Because he does not
challenge any other part of the District Court’s sentencing
calculation, or take issue with the substantive reasonableness
of the District Court’s decision, Reynos has waived any
challenge on those grounds. See United States v. Negroni,
638 F.3d 434, 440 n.4 (3d Cir. 2011). Reynos alleges two
procedural errors: 1) that the District Court improperly
applied the abduction enhancement to his sentence, and 2)
that the District Court engaged in “double counting” by
enhancing Reynos’ sentencing for abduction where the use of
the handgun actually served as the basis of his conviction
under 18 U.S.C. § 924(c).

III.

A.

We begin with the abduction enhancement. The pre-
sentence report recommended an upward adjustment for
abduction based on Reynos’ “kick[ing] open the bathroom
door where the restaurant employees sought refuge,
abduct[ing] them at gunpoint, and forc[ing] them to the cash
register area.” Section 2B3.1(b)(4)(A) provides for a four-
level increase in the base offense level for robbery “if any
person was abducted to facilitate commission of the offense

6
or to facilitate escape.” “Abducted” means that a victim was
“forced to accompany an offender to a different location. For
example, a bank robber’s forcing a bank teller from the bank
into a getaway car could constitute an abduction.” § 1B1.1,
comment. (n.1(a)).

From this Guideline, we distill three predicates that
must be met before the abduction enhancement can be
applied. First, the robbery victims must be forced to move
from their original position; such force being sufficient to
permit a reasonable person an inference that he or she is not
at liberty to refuse. Second, the victims must accompany the
offender to that new location. Third, the relocation of the
robbery victims must have been to further either the
commission of the crime or the offender’s escape. 3 Whether

3
Our dissenting colleague emphasizes the need to find that the
defendant forcibly moved the victim “in a manner and/or for
a reason that the abduction enhancement was specifically
designed to prevent.” In addition to the examples of such
reasons the dissent mentions, § 2B3.1(4)(A) makes clear that
forcing movement to facilitate commission of the crime is a
circumstance the enhancement was specifically designed to
prevent. Thus, even if we were to agree with our colleague
that this additional requirement exists, we would find that it is
met in this case, where Reynos kicked in a locked bathroom
door and threatened the store employees with a gun before
forcing at least one of them to accompany him to the cash
register to commit the offense. We find no support in the
Guidelines, the accompanying commentary, or the caselaw
for our colleague's suggestion that cases involving forcible
movement to facilitate the commission of the offense should
be treated differently than cases involving such movement to

7
or not the Government has established these predicates
would, of course, be reviewed for plain error, with the degree
of distance or definition of location, entrusted as it must be, to
the sound discretion of the District Court.

Reynos attacks the addition of this enhancement to his
sentence. He argues three distinct points: first, that the record
is devoid of evidence proving he used “force” against the
pizza shop employees; second, that the record is silent on
whether the employees accompanied him from the bathroom
to the cash register; and third, that moving from the bathroom
to the cash register is a not a change of location.

1. Use of Force

We start with the enhancement’s requirement of a use
of force. Reynos argues that nothing in the record indicates
he used actual force against any pizza shop employee. No
victim, he argues, was “goaded, forced, dragged or shoved
from the bathroom door to the cash register.” True enough.
No one was “goaded” into leaving the bathroom. And, we do
not know whether any actual physical force—such as shoving
or dragging—was exerted on the victims. The record’s
silence on the exertion of any physical force is of no moment,
however.

Nothing within the plain meaning of the abduction
enhancement’s use of the term ‘force’ confines its meaning
solely to physical force. See, e.g., United States v.
Cunningham, 201 F.3d 20, 28 (1st Cir. 2000). As the Court in

facilitate the offender's escape, or that such cases require
proof of an additional, “aggravating circumstance.”

8
Cunningham noted, the term “force” connotes compelling
someone “by physical, moral or intellectual means” or “to
impose” or “to win one’s way.” Id. (citing Webster’s Seventh
New Collegiate Dictionary 326 (1970)). Furthermore, the
abduction enhancement’s intention—at least in part—is to
protect victims against additional harm that may come to
them by virtue of their isolation. United States v. Whooten,
279 F.3d 58, 61 (1st Cir. 2002). The enhancement applies,
therefore, whether the abduction involved physical force or
just the threat of such an assault. Id.

We will not, therefore, limit the application of the
abduction enhancement to only those scenarios that include
the exertion of actual physical force. We agree with those
courts that have found, as a matter of policy that an abduction
achieved through threat, fear and/or intimidation, “carries the
same dangerous consequences as an abduction accomplished
by the use of physical force.” Cunningham, 201 F.3d at 28.
In both instances, the offender is able to isolate his or her
victims, thereby increasing the chance that they will be
harmed. Id. (quoting United States v. Saknikent, 30 F.3d
1012, 1013-14 (8th Cir. 1994)). In Cunningham, supra, the
Court of Appeals for the First Circuit observed that the
abduction enhancement, at least in part, was designed to
protect victims from isolation, and thus applies whether the
abduction is carried out by threat, intimidation or by physical
violence. 201 F.3d at 28. Likewise, in Saknikent, the Court
of Appeals for the Eighth Circuit found that “the abduction
enhancement requires only that force necessary to overcome
the particular victim’s will.” 30 F.3d at 1014.

Here, we note first that the victims had fled to a place
of relative safety—a small bathroom, behind a locked door—

9
once the robbery commenced. Then, after Reynos forced
open the bathroom door, the victims pointedly saw him
‘brandish’ a large, black automatic pistol. The Guidelines
define “brandishing” as meaning “all or part of the weapon
displayed, or the presence of the weapon was otherwise made
known to another person in order to intimidate that person.”
See U.S.S.G. § 1B1.1, comment. (n.1(C)) (emphasis added).
We have no hesitation in concluding that the brandishing of a
weapon is a use of force for purposes of the abduction
enhancement. Reynos wielded a lethal weapon in order to
intimidate the victims by threatening to shoot them. This was
an intimidating use of force designed to compel the victims to
assist Reynos by opening the cash register. There is sufficient
evidence on this record to support the conclusion that Reynos
exerted force against the victims.

2. Accompaniment

The abduction enhancement requires that the robbery
victims accompany the offender to a new location. § 1B1.1,
comment. (n.1(a)). Reynos argues that no evidence exists in
the record to suggest that the pizza shop employees
accompanied him to the cash register. At oral argument, the
Government conceded that the record merely points to
evidence that the pizza shop employees walked with Reynos
from the bathroom to the cash register area. But, the
Government argues, when looking at the facts in their totality,
it was not erroneous for the District Court to find that the
victims accompanied Reynos to the cash register, a factual
determination that we review for clear error. See United
States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003).

10
 Here, the facts reveal that, after kicking-in the
bathroom door, Reynos demanded that the victims open the
cash register for him or he would “start shooting.” At this
point, all three employees and Reynos were together at the
bathroom. The next event in the timeline finds pizza shop
employee Gutierrez with Reynos at the cash register. We
know they are there because, as Reynos is taking the money
from the cash drawer, he asks Gutierrez if there is any other
cash in the shop. Reynos also physically searches Gutierrez
at this point, an action Reynos could not have undertaken had
Gutierrez not accompanied him to the cash drawer. When
Reynos eventually retreated to the back of the shop, the
employees fled out the front of the store. From these
uncontested facts, we can easily surmise that the employees
and Reynos were together at the cash register whereas before
they were together at the bathroom. It defies common sense
to argue that the employees did not accompany Reynos from
the bathroom to the cash register. We therefore have little
trouble concluding from this record that the victims
accompanied Reynos from the bathroom to the cash register.

Furthermore, the record conclusively establishes that
Reynos forced the victims to accompany him to facilitate the
robbery of the cash register. See, e.g., United States v.
Hawkins, 87 F.3d 722, 728 (5th Cir. 1996) (accompaniment
made in connection with a getaway). The record clearly
indicates that Reynos ordered the victims to accompany him
to the cash register and that at least one victim, Gutierrez,
opened the register for Reynos. Reynos had no reason to
come into contact with the victims, other than to force them
to join him. Presumably, he could have committed his
robbery offense alone, leaving the pizza shop employees
locked in the bathroom. Because Reynos used force to move

11
the victims from the bathroom to the cash register and
because the victims accompanied him there, the abduction
enhancement was properly applied, unless the relocation from
the bathroom area to the cash register site was not a change in
location.

3. Change in Location

At oral argument, the parties focused their
disagreement on the previous question—whether the victims
accompanied Reynos from the bathroom to the cash register.
Their briefing, however, devotes the largest portion of
argument to the question of whether moving from the
bathroom area to the cash register amounted to a change in
location. Reynos maintains that this movement—a distance
of approximately thirty-four feet—did not amount to a change
in location. He argues that the narrow confines of Ed’s Pizza
House constituted a singular site and no change in location
could have occurred unless Reynos moved the victims outside
of the facility. The Government disagrees.

We have not considered this question previously and
we have no precedent interpreting what constitutes a change
of location for purposes of the abduction enhancement. Other
courts, however, have addressed the issue.

In United States v. Hawkins, 87 F.3d 722 (5th Cir.
1996), for example, the Court of Appeals for the Fifth Circuit
held that the term “different location” should be interpreted
flexibly, on a case-by-case basis. Id. at 726-28. At issue in
Hawkins was whether moving a victim at gunpoint 40 or 50
feet across a parking lot to a van amounted to an abduction
(the victim in Hawkins fled before being actively put into a

12
van). The Court of Appeals determined that the term
“different location,” as set out in the comments to § 1B1.1, is
“flexible and thus susceptible of multiple interpretations,
which are applied case by case to the particular facts under
scrutiny, not mechanically based in the presence or absence
of doorways, lot lines, thresholds and the like.” Id. at 727-28;
see also United States v. Johnson, 619 F.3d 469, 472 (5th Cir.
2010). The Court explained further:

In ordinary parlance, “location”
can refer to an outside building or
parking lot, so that a miniscule
movement, such as the crossing of
a threshold separating interior and
exterior of a building, would
constitute movement to a different
location.

On the other hand, in ordinary
parlance, “location” is frequently
used in reference to a single point
where a person is standing, or to
one among several rooms in the
same structure, or to different
floors in the same building. In
other words, while movement
from outside to inside, or vice
versa, or movement across a
property line, might be factors
giving support to a conclusion of
“different locations,” the absence
of such facts does not bar such a
conclusion.

13
Id.

The Court of Appeals for the Fourth Circuit has also
followed Hawkins’ approach. In United States v. Osborne,
514 F.3d at 389, 90 (4th Cir. 2008), the Court of Appeals for
the Fourth Circuit affirmed the application of an abduction
enhancement where the victims were forcibly moved from
one section of a drugstore to another. In Osborne, the
offender used force to move the victims from the secured
pharmacy section of a Walgreens drugstore, across the retail
floor, stopping at the front of the store. Id. at 389-90.
Important to the Osborne Court was the fact that the
pharmacy area and retail portion of the store were separated
by a counter as well as a secure door which could be opened
only by authorized personnel through the use of a digital
keypad. Id. at 390. The Osborne court also deemed it
important that the offender had moved the victims in order to
facilitate his escape. Id.

We find the flexible approach outlined in the Hawkins
and Osborne decisions to have considerable merit. The term
‘location’ connotes several things; hence, the necessity of a
flexible definition. Certainly, two separate physical structures
are two distinct locations. And, a location does not need to
have a physical construct—a park or the beach can be a
location just as a courthouse or church. No one could argue
that moving from one of these physical structures or
geographic locations to another is not a change in location.
The term ‘location,’ however, is broad enough to encompass
different points of reference within the constructs of a single
building or geographic site. See Osborne, 514 F.3d at 389. A
courthouse, for example, has numerous distinct locations
within: a clerk’s office, courtrooms, security offices and

14
judicial chambers are all separate and distinct locations within
the same structure. Paring it down further, a judge’s
chambers in that same courthouse may have several locations:
a reception area, judge’s office, law clerk cubicles and file
rooms, for example. Of course, the smaller the space, the
more difficult it is to find a change in location. But, even
then, the smallest of areas still may contain different
locations: a judge’s private office may have a location
containing a desk and computer that is separate and distinct
from a location containing a conference table and chairs. It is
precisely because of the broad scope of the term ‘location’
that courts must use a highly flexible approach in finding one;
an approach that recognizes that the abduction enhancement
may properly be applied even though the victim remained
within the confines of a single building. Hawkins at 728.

After thoroughly reviewing the facts before it, the
District Court in this case found a change in location,
determining:

I think the Government says that
it was 39 feet from the locked
bathroom to the cash register.
The defense says it was 34 feet. I
don’t know that it makes much of
a difference. For the benefit of
the doubt of the Defendant, I’ll
find that it was 34 feet, but when I
originally looked at the picture of
the pizzeria, it seemed that the
bathroom and the cash register
were in close proximity, but the
video was very illuminating;

15
 they’re not. They’re [sic], and I
won’t describe it perfectly, but
you have to go down a couple
different halls to get from one
area of the bathroom which is far
away from the register, so it’s not
a matter of one being right next to
the other. We have, at least based
on the Defense’s version, 34 feet.

This finding was not erroneous. The record fully supports the
District Court’s determination. The District Court was quite
thorough in making this finding. After the sentencing
hearing, the Court recessed for a week in order to obtain
additional details on the exact layout of Ed’s Pizza House.
During this recess, the parties submitted video documentation
of the store as well as photographs and diagrams indicating
the physical measurements of the store. By virtue of its
locked door, separate walls and distance from the cash
register, the District Court found the bathroom of the pizza
shop to be a different location from the cash register area, a
conclusion well within its considerable discretion.

“Unduly legalistic” and “punctilious” are words
previously used to describe a less than flexible approach to
finding a ‘change in location’ under the Guidelines’ definition
of enhancement. See, e.g., Hawkins, 87 F.3d at 728. We
agree and will not disturb the District Court’s finding.

4. Facilitating the Offense

The record shows that Reynos, after kicking-in the
bathroom door, reached in and unlocked it. He then forced

16
Gutierrez and the other victims, at gunpoint, to leave the
bathroom and move with him to the cash register area. There,
he forced Gutierrez to open the cash drawer, which Reynos
then robbed. The abduction enhancement requires that the
offender force the victims to accompany him in order to
facilitate either the commission of the crime or the offender’s
escape. U.S.S.G. § 1B1.1 app. note 1(a); 2B3.1(4)(A).
Reynos clearly did not abduct the victims here to facilitate his
escape. After emptying the cash register, Reynos abandoned
his victims and attempted to flee out the back door. The
victims escaped through the front entrance. Instead, Reynos
used Gutierrez to open the cash register, thereby facilitating
his offense. These are adequate facts to find that Reynos
forced the victims to move to a different location for purposes
of facilitating the commission of the crime.

5. Conclusion

Our review of the record leads us to conclude that
Reynos abducted the pizza shop employees during the
commission of the robbery. This is the type of case where the
abduction enhancement is proper, even though the victims
moved within a single structure. Reynos broke open the
locked bathroom door where the employees had secured
themselves, extricated the employees and forced them—at the
point of a gun—to move more than thirty-feet to a new
location, the cash register area of the store. Employee
Gutierrez was then forced to open the cash drawer, thereby
facilitating Reynos’ crime. On these facts, the District Court
did not err by applying the abduction enhancement to
Reynos’ sentence.

C.

17
 Having determined that the abduction enhancement
was proper, we turn to Reynos’ argument that applying this
enhancement amounted to “double counting.” Improper
double counting occurs when a district court imposes two or
more upward adjustments within the same Guideline range,
when both are premised on the same conduct. See, e.g.,
United States v. Fisher, 502 F.3d 293, 309 (3d Cir. 2007).
Double-counting is prohibited by U.S.S.G. § 2K2.4, cmt. n. 4,
which provides, “[if] a sentence under this Guideline is
imposed in conjunction with a sentence for an underlying
offense, do not apply any specific offense characteristic for
possession, brandishing, use, or discharge of an explosive or
firearm when determining the sentence for the underlying
offense.” Reynos argues that improper double-counting
occurred here because the District Court enhanced his offense
level for abduction premised on the fact that he used a
handgun—conduct already covered by Count Three of the
indictment. That is to say, in sentencing Reynos to a ten year
mandatory minimum for use of a handgun called for by 18
U.S.C. § 924(c), the District Court improperly took into
account the fact of the abduction enhancement. We disagree.

First of all, abducting a person during the course of a
robbery is not a “specific offense characteristic for
possession, brandishing, use or discharge of an explosive or
firearm.” § 2K2.4. Instead, the District Court’s enhancement
addresses separate harm--the endangerment of the pizza shop
workers by moving them to a different location in order to
facilitate the commission of Reynos’ offense. Here, even
though the crime involves both an abduction and the use of a
gun, separate provisions of the Guidelines are properly
applied to capture the essence of Reynos’ offenses.

18
 Secondly, the application of the abduction
enhancement in this case fits squarely into Fisher, supra.
There, we held that “only when the Guidelines explicitly
prohibit double counting will it be impermissible to raise a
defendant’s offense level under one provision when another
offense Guideline already takes into account the same
conduct.” 502 F.3d at 309 (citing United States v. Wong, 3
F.3d 667, 670 (3d Cir. 1993)). Fisher involved a prosecution
for possession of a firearm by a convicted felon, based on a
situation where the defendant pointed a firearm at a police
officer. There, we upheld both the enhancement for use of a
firearm in connection with another felony offense and the
additional enhancement for intent to cause bodily harm to a
law enforcement officer. Although these enhancements
stemmed from the same incident, we held that “[o]nly when
the Guidelines explicitly prohibit double counting will it be
impermissible to raise a defendant’s offense level under one
provision when another offense Guideline already takes into
account the same conduct.” Id. The enhancements in Fisher
did not constitute double counting because the Guidelines
permitted the application of both. One enhancement
punished the use of a firearm while the other called for an
enhancement based on the victim’s status as a police officer.
Id.

Enhancing Reynos’ sentence was not double counting.
The penalty for the robbery offense is set out in § 2B3.1 and
the one for use of a firearm is found in § 2K2.4. And, the
four-point increase in the offense level for the abduction
offense is found in § 2B3.1(b)(4)(A). Reynos points to no
explicit prohibitions here, so we find no improper double
counting.

19
 III.

The District Court has imposed a sentence that is
procedurally correct. We will, therefore, affirm its judgment.

20
 United States of America v. Quintrell Reynos,
No. 11-1398

AMBRO, Circuit Judge, dissenting.

Under the Sentencing Guidelines, an abduction occurs
when “a victim was forced to accompany an offender to a
different location.” U.S.S.G. § 1B1.1, comment (n.1(A)). To
illustrate this, commentary for the Guidelines states that
“forcing a bank teller from the bank into a getaway car would
constitute an abduction.” Id. The Guidelines’ example of
forcibly taking someone from inside a bank to a getaway car
outside the building stands in stark contrast to the case before
us, where the bathroom and the cash register are separated by
a distance of only 34 feet within an 803-square-foot pizza
shop.

The analysis of what qualifies as an abduction, and
what does not, is subtle and nuanced. Reasonable people can
differ, and the side of the line I land is different than my
colleagues. For the reasons given below, I respectfully
dissent.

The beginning point for my colleagues is that the term
“location” “is broad enough to encompass different points of
reference within the constructs of a single building or
geographic site.” Maj. Op. at 14. I agree. For example,
shopping malls, office buildings, and apartment complexes
may be single structures, but no one would dispute that they
have different points of reference within them (various retail
stores, different companies’ offices, and individual
apartments), and hence have different locations.
 However, as the majority opinion notes, “the smaller
the space, the more difficult it is to find a change in location.”
Id. at 15. I also agree. But here my perspective parts with my
colleagues. To me, if the building or geographic site is small
enough, and/or the distance traveled is short enough, there is
only one point of reference, and, in turn, only one location.
While their contention that even “the smallest of areas still
may contain different locations[,]” id., is plausible in theory,
in many situations involving a single small building or
geographic site, and/or when only a short distance is traveled,
it strains logic.

Such is the case with Ed’s Pizza House. It is so
small—803 square feet by my estimation of the 56’ by 14’4”
shop—that I believe it is only one point of reference and thus
only one location. Many offices of senior persons in
organizations are at least as big.

If a customer were standing near the bathroom door of
Ed’s Pizza House and asked where he was located, he would
say he was at Ed’s Pizza House. If this same customer were
then to walk to the cash register (34 feet away from the
bathroom door) and again asked where he was located, I have
no doubt that he still would say he was at Ed’s Pizza House.
The short distance traveled within the same small shop leads
me to conclude that there was not movement to a different
location.

Contrast this with the example of a mall shopper who
travels 34 feet across a walkway, leaving Store A and
entering Store B. While the distance traveled is the same as
that in this case, the points of reference are undoubtedly
different in the shopping mall example. The shopper would
first say he was at Store A and then say he was at Store B. As

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such, the mall shopper did, in fact, move to a different
location in the example. The same can be said for the
apartment resident who walks across the hallway, leaving
Apartment 1A and entering Apartment 1B. While the
distance traveled is short (likely even less than 34 feet), his
location certainly changed from one apartment to the other.

Consider also the example of a farmer in his cornfield.
He could walk hundreds of yards, but, because each position
in his cornfield is amorphous, his location does not change.
He still is in his cornfield no matter where he is located.

Thus, while I agree with the majority that a “highly
flexible approach,” id., should be employed when analyzing
the “different location” issue, these examples underscore the
principle that, when only one building or geographic site is
involved (especially a small building or site), and/or when
only a short distance is traveled, there is a greater need for the
crossing of some line of demarcation—a doorway, lot line,
threshold, etc.—to find that there was movement to a
different location. To hold otherwise would “virtually
ensure” that any movement at all would result in an abduction
enhancement. See United States v. Eubanks, 593 F.3d 645,
654 (7th Cir. 2010) (holding, among other things, that
abduction enhancement was inappropriate where an armed
robber forced a store employee to the back room to retrieve a
surveillance video).

I readily acknowledge that, even when only one
building or geographic site is involved and/or when the
distance traveled is not great, the abduction enhancement
rightly can be applied to a defendant who forcibly moves a
victim in a manner and/or for a reason that the abduction
enhancement was specifically designed to prevent, such as

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when the defendant isolated the victim, used the victim as a
hostage or human shield, or forced the victim to accompany
him during his getaway. See United States v. Osborne, 514
F.3d 377, 390-91 (4th Cir. 2008) (holding that abduction
enhancement was applicable where defendant forced
Walgreens employees at knifepoint from the pharmacy
section, located in the back of the store, to the front door of
the building; relying heavily on fact that the defendant forced
the victims to accompany him so he could “keep[ ] [the]
victims close by as readily accessible hostages”); United
States v. Whooten, 279 F.3d 58, 61 (1st Cir. 2000) (observing
that “the abduction enhancement is intended, at least in part,
to protect victims against additional harm that may result
from the victim’s isolation”); United States v. Hawkins, 87
F.3d 722, 728 (5th Cir. 1996) (per curiam) (holding that
abduction enhancement was applicable where victims were
dragged and forced at gunpoint from a pickup truck to a van
that was 40-50 feet away within the same parking lot largely
because the movement “was made in connection with a
getaway”). In such a situation, the aggravated nature of the
defendant’s forcible movement of the victim likely tips the
scale in favor of finding that there was movement to a
different location despite there having been only one building
or site involved and/or a short distance traveled.

Absent an aggravating circumstance, however, there is
little to support the finding of a different location when only
one small building or site is involved, and/or when only a
short distance is traveled, and there is no line of demarcation.
This is because “transporting victims from one room to
another is simply not enough for abduction” absent an
aggravating circumstance (such as those described above) that
is “‘plainly targeted by the abduction enhancement.’”

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Eubanks, 593 F.3d at 653-54 (quoting Osborne, 514 F.3d at
390). “To find otherwise would virtually ensure that any
movement of a victim from one room to another within the
same building, without any other aggravating circumstances,
would result in an abduction enhancement.” Id. at 654.
Application of the abduction enhancement thus would be
inappropriate in such a situation.

There is no aggravating circumstance here. Quintrell
Reynos did not isolate one victim from the rest, he did not use
any of them as a hostage, nor did he force any of them to
accompany him in his getaway. In fact, after Reynos
obtained the money from the cash register and from Juan
Gutierrez’s person, Reynos left the pizza shop through its
back door while Gutierrez and the two other employees went
out the front door. It is difficult for me to see how the
abduction enhancement is appropriate when the supposed
abductor and his abductees left the building separately and
through different doors.

It is true that Reynos forcibly moved the pizza shop
employees from the bathroom to the cash register in order to
facilitate the commission of a crime—the robbery. However,
this alone is insufficient to subject Reynos to the abduction
enhancement. To put into play that enhancement, whether for
an escape or to facilitate a crime, there must be more than one
location involved. As explained above, I believe here only
one location was involved, as all of the movement occurred
within a single, and small, building and only a short distance
was traveled.

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 Accordingly, because I believe that the bathroom and
cash register within the small pizza shop are not different
locations, and because no aggravating circumstance exists, I
would hold that the abduction enhancement does not apply to
this case.

While I believe that the four-level abduction
enhancement under § 2B3.1(b)(4)(A) should not be applied to
Reynos’ sentence, I am skeptical that his term of
imprisonment would be shorter in this case. Reynos’ conduct
appears clearly to warrant the two-level physical restraint
enhancement under § 2B3.1(b)(4)(B), and that enhancement
certainly would have been applied to his sentence had the
District Court not applied the abduction enhancement. As
noted below, the mere two-level decrease in total offense
level would have reduced the sentence range by only seven to
nine months, with the low end of the sentence range for the
higher offense level overlapping with the high end of the
sentence range for the lower offense level. The sentencing
judge thus could have imposed the exact term of
imprisonment on Reynos had the restraint enhancement been
applied instead of the abduction enhancement.

Section 2B3.1(b)(4)(B) of the Sentencing Guidelines
provides for a two-level increase “if any person was
physically restrained to facilitate commission of the offense.”
U.S.S.G. § 2B3.1(b)(4)(B). “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)).
The qualifying phrase “such as” in this definition indicates
that the words “tied, bound, or locked up” are listed by way
of example rather than limitation. United States v. Carter,
410 F.3d 942, 954 (7th Cir. 2005). Accordingly, physical
restraint “is not limited to the examples listed in the

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guidelines.” United States v. Copenhaver, 185 F.3d 178, 180
(3d Cir. 1999). Moreover, “[f]orce is not limited to physical
force, but may also encompass the operation of circumstances
that permit no alternative to compliance.” Carter, 410 F.3d at
954 (citation and internal quotation marks omitted).

In our case, Gutierrez and his two co-workers had no
alternative but to comply with Reynos’ demands. See id.
(holding that restraint enhancement was applicable where the
defendant forced a bank teller at gunpoint from the bank vault
to her cash drawer against her will, explaining that, “with [the
defendant’s] gun pointed at her from only inches away, [the
bank teller] had no alternative but to comply with his
instructions to move”). Reynos’ conduct “was thus more
culpable than a robber who does not forcibly restrain a victim
to facilitate his offense.” Id. As such, I believe that the two-
level physical restraint sentence enhancement would be
appropriate.

Consequently, it appears that the District Court still
could have sentenced Reynos to 157 months’ imprisonment.
He was subject to a mandatory consecutive 10-year prison
sentence under 18 U.S.C. § 924(c) for discharging a firearm
during the robbery (he fired his handgun several times in an
effort to break the lock on the back door of the pizza shop
while attempting to flee). In addition, there is a base offense
level of 20 for robbery under 18 U.S.C. § 1951. U.S.S.G.
§ 2B3.1. Applying the two-level restraint enhancement
would mean an offense level of 22 (as opposed to 24 if the
four-level abduction enhancement were used). With a three-
level stipulated downward adjustment for acceptance of
responsibility, the total offense level becomes 19 (as opposed
to 21 if the abduction enhancement were applied). Even
using Criminal History Category I (the lowest category), the

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Guidelines’ range for imprisonment for an offense level of 19
is 30 to 37 months, while the range is 37 to 46 months for
offense level 21. When this term is added to the 10-year
mandatory consecutive prison sentence, the range for Reynos’
sentence was 150 to 157 months’ imprisonment. Thus,
Reynos still could have been sentenced to 157 months’
imprisonment even using the restraint enhancement instead of
the abduction enhancement.

* * * * *

With this context, I respectfully dissent but doubt that
the net effect, even were my lack-of-abduction view to
prevail, results in a reduction in sentence.

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