Is Pointing a Gun at Someone a “Physical Restraint”?

The possession or use of a firearm during the commission of a crime, such as robbery, is often a factor in how a defendant is sentenced if convicted. For example, federal judges often consult a complex set of Sentencing Guidelines when determining the range of a defendant’s sentence. These guidelines use a base offense level as their starting point, with various factors increasing or decreasing said base level.

Florida Defendant Receives 20 Years for Convenience Store Robbery

So how can firearms affect this base level? A recent decision from the United States Court of Appeals for the 11th Circuit, United States v. Deleon, offers a helpful illustration. This case involved an armed robbery that took place here in Florida. The defendant walked into a convenience store and asked the cashier for a pack of cigarettes. As the defendant paid for his cigarettes, however, he pulled out a gun, pointed it at the cashier, and demanded all of the money in the register. The defendant did not fire his gun or touch the cashier. After less than a minute, the defendant walked out of the store with the money and $40 worth of postage stamps.

A federal grand jury subsequently indicted the defendant for robbery and brandishing a firearm during a crime of violence. While robbery is often prosecuted as a state crime, it can also be charged in federal court under the Hobbs Act, which covers any robbery that affects interstate commerce. A jury proceeded to find the defendant guilty of both charges.

At sentencing, the trial judge applied the Sentencing Guidelines. In determining the defendant’s base offense level, the court applied a two-level enhancement that covers a scenario where “any person was physically restrained” during the commission of the armed robbery. Here, the judge determined the defendant pointing his gun at the store cashier, in and of itself, was a physical restraint. After applying the two-level enhancement, the court sentenced the defendant to 20 years in federal prison.

On appeal, the defendant challenged the two-level sentencing enhancement. Essentially, he pointed out that if it applied to the facts of this case, then it applied to “all armed robbery cases,” which meant the base level was really two levels higher than what was specified in the Sentencing Guidelines.

The 11th Circuit was sympathetic. But a three-judge panel ultimately felt compelled to affirm the defendant’s sentence based on prior 11th Circuit precedent. One judge on the panel noted the issue in this case should be reviewed by the full 11th Circuit. But as the law currently stands, the trial court properly concluded the defendant engaged in “physical restraint,” as defined by the Sentencing Guidelines, when he pointed the gun at the store clerk, even though there was never any physical contact between the parties.

Contact AsiliA Law Firm Today

Firearm-related offenses often carry harsh penalties, as the case above demonstrates. That is why if you are charged with such an offense it is critical to work with a qualified Miami gun crime defense attorney. Call AsiliA Law Firm today at 786-420-3014 or contact us online to schedule an initial consultation.

Source:

media.ca11.uscourts.gov/opinions/pub/files/202310478.pdf