The Federal Sentencing Guidelines offer judges parameters by which to calculate sentencing based on the severity of the crime and the defendant’s criminal history. The Guidelines aim to assign fair, relatively consistent sentences across the country.
The Guidelines include enhancements, which are provisions that increase the length of a sentence for a particular crime. A robbery, as a base offense, is a level twenty. However, the robbery guideline enhances the base offense level by four if any person was abducted to facilitate commission of the offense or to facilitate escape. The guidelines commentary defines “abducted” to mean a person was forced to accompany an offender to a different location. What constitutes a different location is up for debate.
Under the Sentencing Guidelines, does a defendant “abduct” a victim during a robbery by making them move to another room within the same building?
Rather than a two-way split, the various positions taken by circuits seem to fit into three categories. The Sixth, Seventh and Eleventh Circuits all concur that different rooms within the same store do not qualify as “different locations” under the enhancement. The Fourth and Fifth Circuits disagree. The Third and Tenth Circuit fall somewhere in-between, having adopted a novel three-prong test to make such a determination.
Sixth, Seventh, and Eleventh Circuits
In 2019, the Sixth Circuit became the latest to join the split in United States v. Hill. In this case, the robbers forced employees within a cellphone store to move from the sales area to the back room in order to tie them up. The district court applied the four-level “abduction” enhancement, which increased the defendant’s sentence by approximately two years.
When the defendant appealed his sentence, the Sixth Circuit overturned the enhancement. The court held that “the phrase ‘different location’ is best read to refer to a place different from the store that is being robbed. And a store’s back room does not qualify as a ‘different location’ from the store.” The court provided multiple reasons for their finding.
Amongst them, the court explained that ordinary speakers rarely specify the exact location within a store that was robbed, but rather generalize one location. For example, in common speech, one does not detail that the sales area of a store or vault at the bank was robbed, but rather simply state that a store or bank was robbed. Additionally, the court expressed that if the Sentencing Commission meant for such a short movement to count, it had no reason to add the phrase “different location.” Moreover, the example in the Guidelines commentary is of a robber forcing a bank teller into a getaway car—a location different than the store itself.
The Eleventh Circuit in 2013 reached the same conclusion in United States v. Whatley. The circuit provided further reasoning that “different location” must be read in light of “abduction,” explaining that a normal speaker “would conclude that [the robber] had taken the [employees] hostage during the commission of the . . . robberies but would not describe those employees as having been abducted or kidnapped.”
Similarly, in 2010, the Seventh Circuit held in United States v. Eubanks that dragging a store employee about six feet from back room to front room of a store was not abduction, stating that “[t]o 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.” However, the court did note that each finding was a fact specific determination. The Sixth Circuit has agreed and held the same limitation applies.
Fourth and Fifth Circuits
In 2017, the Fifth Circuit joined the Fourth in finding that different areas within the same store do qualify as a “different location” and thus require an enhancement. In United States v. Buck, a robber forced store employees from the front of the store to the back. In upholding the abduction enhancement, the Court stated that the term “different location” must be interpreted with flexibility. The Court wrote: “we are satisfied that the conspirators forcing [employees] to move from the front of the stores to the backs was sufficient to make the abduction enhancement applicable.”
In United States v. Osborne, the Fourth Circuit also deemed the pharmacy section and the store area of a Walgreens to be discrete locations. Like the Eleventh Circuit, the court looked to ordinary language, but it reached a different conclusion: “It is in ordinary parlance to say that the pharmacy section and the store area are ‘different locations’ within the Walgreens building. This is especially true in view of the fact that the pharmacy section and the store area are divided by a counter, as well as a secured door intended to be passable only by authorized persons via keypad.”
Third and Tenth Circuits
The Third Circuit has taken a unique approach by creating a three-prong test to make a determination of whether to apply the robbery enhancement. In United States v. Reynos, the Court closely examined the language of the enhancement and engineered three predicates accordingly:
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.
Following this test, the Court concluded that an abduction occurred where a robber, wielding a pistol, forced pizza shop employees from where they were hiding in the restaurant bathroom to the cash register area—a distance of approximately thirty-four feet—so that they could assist him in opening the cash register.
In 2017, the Tenth Circuit adopted this test as well in United States v. Archuleta. Though the test is meant to be a neutral arbitrator, it tends to favor using the enhancement.
The broad inconsistencies among the circuits frustrate the very purpose of the Federal Sentencing Guidelines. Varying interpretations continue to result in sentencing discrepancies across the country and are not limited to just the robbery enhancement. It has become clear that sentencing disparities due to the complexity of the Federal Sentencing Guidelines, coupled with judicial discretion, need to be addressed. While the Supreme Court could take up and address each incongruity, this solution would be inefficient and result in many defendants spending a disproportionate amount of time in prison. Rather, it may be time for a complete overhaul of the guidelines and fundamental criminal sentencing reform.
In the meantime, defendants may want to take note of what not to do during a robbery.