In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1750
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARTY T AYLOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 09-cr-119-bbc-01—Barbara B. Crabb, Judge.
A RGUED A UGUST 4, 2010—D ECIDED S EPTEMBER 2, 2010
Before P OSNER, R OVNER, and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. The defendant was charged,
along with Arlandis Issac, with armed bank robbery in
violation of 18 U.S.C. §§ 2113(a), (d). He pleaded guilty
and was sentenced to 110 months in prison. (Issac, not
an appellant in this case, also pleaded guilty and was
sentenced to 168 months.) The question presented by
the appeal is whether the district judge was correct to
add two levels to the defendant’s base offense level
2 No. 10-1750
pursuant to section 2B3.1(b)(4)(B) of the federal sen-
tencing guidelines. That section requires the enhance-
ment if a person is “physically restrained to facilitate
the commission of the offense [of robbery] or to facilitate
escape.” The term “physically restrained” is defined as
“the forcible restraint of the victim such as by being
tied, bound, or locked up.” U.S.S.G. § 1B1.1, applica-
tion note 1(K). The enhancement raised the defendant’s
guidelines sentencing range from 92-115 months to 110-
137 months. (These ranges include a six-level increase
above the defendant’s base offense level because he had
used a gun in the robbery.) The judge thus gave him a
sentence that was at the bottom of the range that the
enhancement for physical restraining lifted him into
and below the maximum without the enhancement.
The defendant and Issac had entered the bank with two
other men. With the other two guarding the lobby, the
defendant ordered a teller at gunpoint to open her
money drawer while Issac went to the vault at the back of
the bank where another teller was standing, whom Issac
ordered at gunpoint to get down on her knees. He
tugged her back to a standing position and with one hand
holding a gun pointed at her back and the other placed
on the back of her neck or head led her from the
vault to her teller’s position, shoved her, face down, to
the floor, and held her there. The robbers looted the
tellers’ money drawers and fled.
The enhancement for physically restraining the second
teller in order to facilitate the robbery was based not on
anything the defendant had done but rather on Issac’s
No. 10-1750 3
conduct, which the judge deemed “relevant conduct”
of the defendant. See U.S.S.G. § 1B1.3(a)(1)(B). That
ruling is not questioned but the judge’s reasoning in
imposing the enhancement is. She said: “I’m not at all
convinced that being moved at the point of a gun is all
that different in impact, effect on the victim[,] as being
tied, bound or locked up. The person is physically re-
strained from moving in any direction but the direction
in which the robber wants her to go. Now it’s true the
gun was not pointed directly at her face . . ., but the
gun was there.” The judge added that Issac had “pushed
[the teller] to the ground and pushed [her] in the small
of her back to make sure she was on the ground . . . . [H]e
walked her into the other room while holding a firearm.
I think that kind of activity, moving from place to
place . . . where the firearm is being held clearly to be
used on you if you make the wrong move, . . . complies
with the definition of forcible restraint of a victim.”
Even if Issac’s conduct didn’t satisfy the guideline
definition of physical restraint, if the judge reasonably
thought it as evil as, say, handcuffing the teller and
locking her in the vault—conduct that clearly would
satisfy the definition—she could increase the de-
fendant’s sentence without worrying about the defini-
tion. A sentencing judge in this post-Booker era is entitled
to enhance a sentence whether or not the technical re-
quirements of the guidelines are met. But since the
judge based her sentence instead on her understanding
of the physical-restraint guideline we must decide
whether that understanding was correct.
4 No. 10-1750
Had she based the enhancement not on Issac’s having
pointed his gun at the teller to control her movement
but on his having shoved and dragged or pushed her to
the floor and held her down, there would be no issue
for appeal; that would be “physically restraining” in
even the narrowest sense of the term. United States v. Old
Chief, 571 F.3d 898, 901 (9th Cir. 2009); United States v. Ossai,
485 F.3d 25, 32 (1st Cir. 2007); United States v. Foppe, 993
F.2d 1444, 1448, 1452-53 (9th Cir. 1993). But instead she
emphasized the use of the gun to force compliance with
Issac’s command that the teller go from the vault to the
teller area. The defendant argues that threatening a
person with a gun is not “physically restraining” even if
the purpose is to compel a person to move or not move
as the robber commands.
He claims that Begay v. United States, 553 U.S. 137 (2008),
holds that a statute or regulation that provides a list
of examples to define a crime cannot be applied to any
behavior that is not relevantly identical to the examples.
In the case of the “physically restraining” sentencing
guideline the list is “tied, bound, or locked up,” and
the defendant argues that since all these are forms of
physically preventing or limiting movement, threatening
a person cannot fit within the guideline. But he
flinches when it comes to a robber’s spraying mace on
a person to facilitate the robber’s escape, as in United
States v. Robinson, 20 F.3d 270, 279 (7th Cir. 1994), which
held the act to be a form of “physically restraining” the
victim. He thinks Robinson may survive Begay; he says
that “spraying mace is arguably consistent with being
‘tied, bound or locked up’ insofar as it creates a restraint
No. 10-1750 5
that stays in place after the robber has left.” But that
can’t be right; it would mean that if the robber
had handcuffed a teller but removed the handcuffs on
his way out (maybe he wanted them for his next bank
robbery), he could not be given the sentencing en-
hancement for physically restraining a person.
What is true is that a statutory list of examples of con-
duct that violates the statute can be a clue to the
statute’s intended scope; that is the core of good sense
in the “canon of construction” known as eiusdem generis
(Latin for “of the same kind,” in law Latin usually
spelled ejusdem generis). The examples are a substitute
for or supplement to a definition. Begay was inter-
preting a statute that defined as a violent felony an act
or series of acts that constitute “burglary, arson, or ex-
tortion, involves use of explosives, or otherwise in-
volves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii)
(emphasis added). The examples provided help in in-
terpreting “conduct that presents a serious potential risk
of physical injury to another.” The Court held that
driving under the influence, although a dangerous
activity, was not within the statute’s scope because it
lacked the essential character of the listed crimes, which
the Court described as “purposeful, violent, and aggres-
sive” conduct. 553 U.S. at 144-45.
The essential character of conduct that is subject to the
physical-restraint guideline (which defines “physically
restraining” only tautologically, as “forcible restraint”) is
depriving a person of his freedom of physical movement,
6 No. 10-1750
United States v. Old Chief, supra, 571 F.3d at 901; United
States v. Plenty, 335 F.3d 732, 736 (8th Cir. 2003); United
States v. Checora, 175 F.3d 782, 791 (10th Cir. 1999), and this
can be accomplished by means other than creating a
physical barrier to movement. Hitting a person over
the head with a two-by-four will make him incapable,
for a time at least, of any physical movement. But it
won’t create a physical barrier, as a locked door does;
nothing but his being unconscious prevents him from
moving. But so what? There is a difference, from a
penal standpoint, between deliberately burning down
a house and driving while drunk; but what is the
penologically relevant difference between locking a
teller in a vault, on the one hand, and knocking her sense-
less (if we ignore the injury in the latter case, which
would earn the assailant an additional enhancement,
U.S.S.G. § 2B3.1(b)(3))—or pointing a gun at her—on the
other hand?
The difference, though it has penological relevance
only by virtue of the structure of the guidelines, is the six-
level enhancement that the defendant received for using
a gun. When he pointed his gun at a teller and told her
to open her money drawer, he effectively prevented her
from responding that she’d be happy to do that in a
moment but first she’d like to go outside for a smoke.
But it is not suggested that since he prevented her
from moving, as she doubtless would have wanted to
do, he should get the two-level physical-restraint en-
hancement on top of the six-level enhancement for
use of a gun. For that would make the enhancement
available in every robbery case, since the robber must
No. 10-1750 7
always make his victim stay still while being robbed.
But a characteristic shared by all instances of a crime
is reflected in the base offense level for the crime and
therefore is unavailable for use as an enhancement.
United States v. Rodgers, 610 F.3d 975, 978 (7th Cir.
2010); United States v. Senn, 129 F.3d 886, 897 (7th
Cir. 1997); United States v. Reese, 2 F.3d 870, 895 (9th Cir.
1993); United States v. Butt, 955 F.2d 77, 88-89 (1st Cir.
1992). That would be double counting. What then is the
difference between the defendant’s use of the gun and
Issac’s use, the latter being the basis for the “physically
restraining” enhancement?
We examine that question through the lens provided
by two of our previous decisions. The first, United States
v. Doubet, 969 F.2d 341, 346 (7th Cir. 1992), abrogated on
unrelated grounds by United States v. Dunnigan, 507 U.S.
87 (1993), states that “herding victims into a defined
area” is not “physically restraining” them if all that’s
involved is “simply directing them to one side of the
room and admonishing them not to move . . . . Were
it otherwise, enhancement would be warranted virtually
every time an armed robber entered a bank, for a threat
not to move is implicit in the very nature of armed rob-
bery.” (Nor does such “herding” amount to “abduction,”
United States v. Eubanks, 593 F.3d 645, 652-54 (7th Cir.
2010), which when done to facilitate the offense or
escape gives rise to an additional four-level enhance-
ment. U.S.S.G. § 2B3.1(b)(4)(A).) Yet in Doubet we
upheld the enhancement because the defendant had
ordered the tellers to go into a bathroom and told them
that if they tried to leave he’d blow their heads off—a
8 No. 10-1750
credible threat because he was carrying a sawed-off
shotgun. This was “herding,” but went a step beyond
“simply directing.”
In the second case, United States v. Carter, 410 F.3d 942,
954 (7th Cir. 2005), after repeating the qualification in
Doubet we upheld the physical-restraint enhancement
where the defendant, “in the immediate presence of [a
teller], focused his gun on her and then, sustaining that
focus, moved her out of the bank’s vault to her drawer
against her will.” That is like our case (minus the physical
contact); it goes beyond Doubet by not requiring con-
finement.
Carter governs our case. It accords with the decisions
in all the comparable cases that we’ve found in the
other courts of appeals, United States v. Stevens, 580
F.3d 718 (8th Cir. 2009); United States v. Miera, 539 F.3d
1232, 1235-36 (10th Cir. 2008); United States v. Ossai, supra,
485 F.3d at 32; United States v. Wilson, 198 F.3d 467, 472 (4th
Cir. 1999); United States v. Copenhaver, 185 F.3d 178, 182-83
(3d Cir. 1999); United States v. Nelson, 137 F.3d 1094, 1112
(9th Cir. 1998); United States v. Jones, 32 F.3d 1512, 1519
(11th Cir. 1994), and we consider it sound and decline
the defendant’s invitation to overrule it. Whether a
pointed gun is used to move a person into an unlocked
room and keep him there, or used to move a person
from one part of the robbery scene to another, the
person’s freedom of movement is restrained as effec-
tively as by shoving or dragging him into a room and
locking the door. The type of conduct found in this case
is a feature of many robberies but not all; goes a step,
No. 10-1750 9
albeit a modest one, beyond the mere aiming of a gun at
a stationary robbery victim (United States v. Miera, supra,
539 F.3d at 1236, gave, as an example of a bank robber
who would not be subject to the enhancement, one
who “simply walked up to the teller’s station with a gun
visible in his waistband and demanded money”);
and provides an a fortiori justification for the modest
sentencing enhancement in this case—for remember that
the sentence the judge imposed was within what would
have been the guidelines range without the enhance-
ment. The distinctions among the cases of restraint by
gun are so fine, however, that sentencing judges might be
better advised to assess a robbery defendant’s conduct
in such cases without reliance on the physical-restraint
guideline, as we said earlier the judge could have done
in this case.
One small matter remains to be considered. The
judge ordered the defendant to participate in the Inmate
Financial Responsibility Program, 28 C.F.R. § 545.10.
That was error; participation is voluntary. United States
v. Munoz, 610 F.3d 989, 997 (7th Cir. 2010); United States
v. Boyd, 608 F.3d 331, 335 (7th Cir. 2010); United States
v. Lemoine, 546 F.3d 1042, 1047 (9th Cir. 2008).
The judgment is modified accordingly, and as
modified is
A FFIRMED.
9-2-10