In Joshua Herman’s second appeal of his 10-year sentence imposed in Indiana’s Northern District Court in Hammond, the majority of judges of the 7th Circuit joined Chief Judge Diane Wood’s opinion denying en banc review and remanding Herman’s case for resentencing, which could result in less time served.
Judges Joel Flaum and Michael Kanne dissented and would have granted en banc review. Judge William Bauer would have affirmed Herman’s sentence imposed by Northern District Senior Judge James Moody for the reasons set out in Flaum’s dissent.
Herman was convicted of armed robbery after he visited Jacob Kirk and his mother, Samantha Davis, at the house they shared in Hammond in 2016. After seeing a gun in Davis’ purse, Herman asked to handle it for a moment, which Davis allowed somewhat reluctantly, according to the record. As he did, Herman then pulled out a revolver and said to Davis and Kirk, “Look … stay seated. I don’t want to blow you guys back, but I will if I have to.”
Herman “instructed Kirk and Daniels not to move, and then turned and ran outside. Kirk and Daniels ignored Herman’s order and pursued him. Herman spun around, with (Davis’) gun in one hand and the revolver in the other and fired a shot that flew past Daniels’s head. Kirk recalled that just before Herman fired, Kirk heard him say ‘I told you not to … ,’ and then there was a ‘boom,’” Wood wrote.
After pleading guilty to being a felon in possession of a firearm and sentenced to 10 years in prison, Herman won a remand on appeal. One of the issues Moody was to consider on remand was whether the physical restraint sentencing enhancement in U.S.S.G. § 2B3.1(b)(4)(B) applied to Herman. Moody found that it did and resentenced him to 10 years.
Wood noted that four circuits have held that pointing a gun at a person and commanding them not to move constitutes physical restraint, and four have held it does not. The majority in this case placed the 7th Circuit in the latter category, though with a caveat.
Wood and the majority denying en banc review found that the act of pointing a gun and ordering someone cannot by itself be considered physical restraint under the guidelines, but the panel struggled to draw a line in close cases between “physical restraint” and “psychological coercion.”
“If the Guideline had been meant to apply to all restraints, it would have said so; instead, it specifies physical restraints. That limitation rules out psychological coercion, even though such coercion has the potential to cause someone to freeze in place. Tellingly, it did not have that effect in Herman’s case — Kirk and Daniels followed him outside despite his warnings and their knowledge that he was armed with two guns,” Wood wrote for the majority.
“But there is a more general point here: the cases that have found physical restraint have focused on the action of the defendant, not on the reaction of the victim. If the defendant ties someone up, confines someone in a room from which there is no clear exit, renders the person immobile by knocking her out, or takes any of a thousand other physical actions against the targeted person that result in a physical limitation on her mobility, it makes sense to speak of physical restraint. Crucially, the victim’s reaction does not determine whether there is or is not physical restraint. If the defendant waves a gun around and barks out a command to stay still and the victim obeys, it makes no sense to say that the recipient of the order was physically restrained. Whatever restraint occurred came about from the way the victim decided to respond to the order. She might obey; she might ignore it; or she might attempt to flee. Her physical response to the defendant’s attempt to coerce, however, is not something that logically belongs within the scope of the physical-restraint guideline.
“Words should mean something, and in this case, the fact that the Guidelines call for physical restraint tells us that not all restraints warrant the two-level enhancement. Our review of our earlier decisions suggests that the middle position we were trying to articulate may have covered too much conduct,” Wood wrote.
“Although ordinarily we do not use Circuit Rule 40(e) when we are simply lining up on one side of an established circuit conflict, as we are doing here, this opinion is in tension with earlier decisions from this court. To the extent that those earlier cases allow for the application of the ‘physical restraint’ enhancement based solely on psychological coercion — including the coercion of being held at gun point — we hereby disapprove those holdings,” the majority held. “… In light of the conflicting views on the meaning of U.S.S.G. § 2B3.1(b)(4)(B), we are ordering the Clerk of Court to send this opinion to the U.S. Sentencing Commission for its consideration.”
In dissent, Flaum wrote that the psychological coercion test “is problematic for three reasons: It is contrary to the Guidelines’ language; it departs from over twenty-five years of this Court’s precedents … and it is in direct conflict with four other circuits… .”
Flaum further criticized the panel’s reliance on a victim’s response in such situations to determine whether the enhancement should apply. “I suggest such reasoning is divorced from reality. Just as a person can flee from a pointed gun, a person can break ties or binding or escape from a locked up room. This does not mean she is not physically restrained.
“…(P)ointing a gun at a person and demanding stillness is the figurative equivalent of tying, binding, or locking up a person,” he wrote. “In each of these scenarios, the offender takes some action to facilitate the commission of or escape from a robbery that has the effect of forcibly restraining a person.”
On remand, Herman will be sentenced under the new interpretation, but could still receive the same sentence. The sentencing range will be 100 to 120 months.
The case is United States of America v. Joshua T. Herman, 18-3057