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Carter Ostrowski, Associate Member, University of Cincinnati Law Review
This past June, the Sixth Circuit Federal Court of Appeals contributed to a circuit split on how to interpret the United States Sentencing Commission’s (the “USSC”) definition of abduction in the context of robbery. Specifically, the circuit courts disagree on whether the definition’s use of the term “different location” can describe two parts of the same building or property. The narrow interpretation of the definition holds that “different location” refers to two separate buildings or properties, whereas the broad interpretation holds that “different location” could also refer to different rooms within one building or even different parts of the same room.
This article reviews the circuit courts’ interpretations of “different location.” Part II breaks down the relevant sentencing guideline, § 2B3.1. Robbery. Part III analyzes the circuit split and the courts’ justifications of their interpretations. Part IV evaluates the benefits and detriments of each interpretation and proposes a modified approach to the broad interpretation. Finally, Part V criticizes the shortcomings of both interpretations and urges a focus on a more flexible, hybrid interpretation of “different location.”
II. A Breakdown of U.S. Sentencing Guidelines Manual § 2B3.1. Robbery
When a person is convicted of a federal crime and is going to be imprisoned, the court must follow the U.S. Sentencing Guidelines Manual (the “Guidelines”) to calculate an appropriate sentence length. The Guidelines were created by the USSC pursuant to the Sentencing Reform Act of 1984 (the “Act”). The Act directed the USSC to create a two factor sentencing system. The first factor, offense behavior, evaluates the severity of the offense committed. Each offense is assigned a base level and subsequent level enhancements based on the details of the offense. For example, robbery has a base level of twenty and can be enhanced by three levels if the robber brandished a firearm and an additional two levels if he caused a loss of $100,000.00. The second factor, offender characteristics, refers to the offender’s prior convictions. For example, any offender with four, five, or six prior convictions falls in Criminal History Category III. Once determined, the two factors are cross-referenced in the Guidelines’ Sentencing Table to find the appropriate sentencing range. If the aforementioned robber with a total offense level of twenty-four has four prior convictions, the Guidelines mandate he be sentenced to between sixty-three and seventy-eight-months of imprisonment.
Abduction is another sentencing enhancement for robbery. Section 2B3.1(b)(4)(A) of the Guidelines states, “if any person was abducted to facilitate commission of the offense or to facilitate escape, increase by 4 levels.” The Guidelines provide definitions of commonly used enhancements like abduction to prevent ambiguity. Section 1B1.1 Commentary Application Note 1(A) states, “‘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 would constitute an abduction.”
Alternatively, if a robber does not satisfy the accompany or different location elements of abduction, he may still receive a lesser version of the enhancement. Immediately following the abduction enhancement, Section 2B3.1(b)(4)(B) states, “or . . . if any person was physically restrained to facilitate commission of the offense or to facilitate escape, increase by 2 levels.” The Guidelines’ define physically restrained as “the forcible restraint of the victim such as by being tied, bound, or locked up.”
III. The Authority Split on “Different Location”
Although the Guidelines define ambiguous terms like “abducted,” the definitions can only take courts as far as the terms used within those definitions. In the case of abducted, the federal circuit courts are divided on the proper interpretation of “different location” as it pertains to robberies. The Sixth, Seventh, and Eleventh Circuits have adopted the narrow interpretation and the Third, Fourth, Fifth, and Tenth Circuits have adopted the broad interpretation.
A. The Narrow Interpretation
The Seventh Circuit was the first to adopt the narrow interpretation in United States v. Eubanks. In Eubanks, a group of robbers forced a beauty supply store employee into a back room to retrieve surveillance footage and in a second robbery dragged a jewelry store employee approximately six feet from a back room into the main storefront. The court held that absent additional circumstances that significantly endangered the employees, finding that the employees’ movements qualify as “different locations” would “virtually ensure that any movement of a victim from one room to another within the same building . . . would result in an abduction enhancement.”
The Eleventh Circuit adopted the narrow interpretation in United States v. Whatley. In Whatley, a bank robber forced multiple employees to accompany him into the break rooms and bank vaults of different banks over the course of five robberies. In its analysis, the court turned to the definitions of “abducted” in both the Oxford English Dictionary and Black’s Law Dictionary. The former defines “abducted” as “led or carried away improperly, kidnapped” and the latter defines it as “the act of leading someone away by force or fraudulent persuasion” with a note that equates it to kidnapping. The court found that because an ordinary person would describe the employees’ movements to different rooms as hostage taking rather than kidnapping, the robber’s actions do not meet the requirements for abduction.
Further, the Eleventh Circuit stated in Whatley that ruling otherwise would blur the line between the four-level abduction enhancement and the two-level physical restraint enhancement. The court cited its previous holding in United States v. Jones, where it defined “physical restraint” as “allowing the persons no alternative but compliance.” The Jones court used this definition to apply the two-level enhancement on a robber who forced bank customers and employees at gunpoint into the bank’s safe room and locked the door. The physical restraint enhancement was applied in Jones because the robber’s actions were done to prevent the victims interference in the robbery.
The Sixth Circuit adopted the narrow interpretation this past June in United States v. Hill. In Hill, two armed robbers led three customers and an employee from the main storefront of a Universal Wireless to a backroom where they zip-tied the victims’ wrists and ankles. The Court introduced three new justifications for its adoption of the narrow interpretation. First, the Court reasoned that when an ordinary person describes a location that was robbed, they typically would refer to entire store, bank, or business. Second, the word “accompany” in the Guidelines’ definition of “abducted” already implies a movement requirement; therefore, the term “different location” would be unnecessary if minor movements could enable the enhancement. Finally, the Court adds that the narrow interpretation aligns with the Guidelines’ abduction example of a bank teller being forced into a getaway vehicle.
B. The Broad Interpretation
The Fifth Circuit was the first to adopt the broad interpretation in United States v. Hawkins. In Hawkins, a group of robbers forced two men to travel approximately forty to sixty feet across a parking lot while robbing their truck. The court looked past a number of cases that found for abduction when a victim was merely forced through the entryway of a building and held that when evaluating the “different location” element, the facts should be applied on a “case by case basis . . . not mechanically based on the presence or absence of doorways, lot lines, thresholds, and the like.” Because the victims were moved a significant distance in Hawkins, the court upheld the abduction enhancement.
The Fourth Circuit was next to adopt the broad interpretation in United States v. Osborne. In Osborne, a robber took two Walgreens employees hostage and forced them to move with him from behind the locked pharmacy door to the front entrance. Instead of focusing on the textual interpretation of “abducted,” the court relied on the purpose for the enhancement. The court found that the purpose was to protect victims from dangers such as being isolated with a robber and or being used as a hostage and upheld the abduction enhancement.
The Third and Tenth Circuits adopted the broad interpretation for similar reasons. In United States v. Reynos, the Third Circuit upheld a robber’s abduction enhancement after the robber forced the employees of a pizza parlor out of a locked bathroom and approximately thirty-four feet down a hallway to the cash register. The Tenth Circuit upheld a robber’s enhancement in United States v. Archuleta after the robber forced a bank teller and bank manager down into the bank vault so that they could open it for him. Because the term “location” is so broad, both courts emphasized the need to maintain flexibility when interpreting a set of facts. Ultimately, both courts found that so long as the victims were forced to move from their original positions, the different location standard could be satisfied.
A. Weighing the Narrow Interpretation
The narrow interpretation is a double-edged sword; while it protects convicted criminals from receiving extensive and unjust imprisonment sentences, it also tends to ignore the public policy concern of protecting robbery bystanders from further harm. By setting a high bar for what can be considered a “different location,” many criminals can avoid being wrongfully given the four-point abduction enhancement simply because the standard was unclear. However, because the standard is higher, criminals who do force victims to accompany them between rooms within a given bank, store, or business could put their victims at a greater risk of harm without being penalized appropriately.
One benefit of the narrow interpretation is a clear distinction between Sections 2B3.1(b)(4)(A) and (B) of the Guidelines. Movement can be read into the two guidelines in various ways. The Supreme Court has held that “accompany” can denote “movement that would normally be described as from one place to another, even if only from one spot within a room or outdoors to a different one.” Further, for a victim to be locked-up and therefore physically restrained, they often need to be moved from their original position to a lockable room. Therefore, by emphasizing that “different location” should mean two distinct buildings, the appropriate enhancement for a given situation becomes clear.
B. Weighing the Broad Interpretation
The broad interpretation is an inverse of the narrow interpretation’s double-edged sword; while it better protects robbery bystanders from further harm, it opens the door for the wrongful enhancement of a criminal’s sentence. The protection of robbery bystanders is the keystone argument of the broad interpretation. Abduction is an enhancement because it puts the victim at further risk of harm. The concern is that once a robber isolates one person from the other bystanders, the victim is more likely to be raped, assaulted, or murdered. Because a robber can isolate a victim simply by taking them from one room to another, threatening the robber with an enhancement may deter him from isolating the victim in the first place.
The downside to the broad interpretation is that if courts are not careful, a criminal’s sentence can be wrongfully enhanced. Without a clear standard of what constitutes “different location” and therefore abduction, courts may not spend the time necessary to properly evaluate the facts. For example, if a cashier is forced at gunpoint to take two steps away from a cash register during a robbery, and the standard is merely that a victim must be moved from his or her original position, the court may apply the abduction enhancement and move on because the elements are technically met. Further, because many criminal defendants do not have the funds to pay a private attorney and because public defenders are often overworked, the enhancement may go unaddressed and leave the defendant with an unjust imprisonment sentence.
C. Modifying the Broad Interpretation and Re-Ordering § 2B3.1(b)(4)(A) and (B)
To correct the shortcomings of both sides, a hybrid interpretation should be adopted that combines the broad interpretation’s focus on public policy with the narrow interpretation’s hesitancy to qualify minor movement as abduction. The proposed hybrid interpretation is a variation of the broad interpretation’s case-by-case analysis.
Under the hybrid interpretation, courts would emphasize why the victim was moved in addition to evaluating the substantiality of a victim’s movement and whether the victim’s risk of harm was increased. For example, if a robber like the one in Osborne forced a victim to accompany him so that he could use the victim as a hostage for his escape, then the court would find for abduction. Alternatively, if a robber like the one in Hill moved victims to another room to keep them out of the way and to prevent them from calling the police, then the court would only find for physical restraint. By focusing on why the victim was moved instead of how far the victim was moved, the contradicting analyses leading to these respective holdings become moot and their outcomes are aligned. Further, courts will be required to better evaluate whether a victim was put in a riskier position without overestimating the bad intentions of the robber and without blurring the lines between abduction and physical restraint. Ultimately, the enhancement issue would no longer hinge on what constitutes “different location” but would instead hinge on the differences between abduction and physical restraint.
Re-ordering Sections 2B3.1(b)(4)(A) and (B) of the Guidelines could be another way to ensure that robbers are not unjustly sentenced. By first looking at whether the acts of a robber constitute physical restraint instead of abduction, the courts may be more inclined to fully flesh out the criminal’s actions and reasons for restraining the victims before asking whether his actions should constitute abduction. Even though the line between the two guidelines would not be as distinct as it would be under the narrow interpretation alone, it would better enable the hybrid interpretation and encourage the courts to fully evaluate the situation.
The narrow interpretation relies heavily on a textualist approach to a term that is too broad to constrain to a single meaning. As a result of its textualist approach, the narrow interpretation fails to sufficiently weigh the public policy arguments for treating the movement of a victim between two rooms during a robbery as abduction. However, the broad interpretation can lead to harsher imprisonment sentences because the ill-defined standard for “different location” can allow more conduct to satisfy the enhancement than is appropriate. To correct the shortcomings of both sides, a hybrid interpretation should be adopted that focuses on why a victim was moved and eliminates the ambiguity of the term “different location.”
 United States v. Hill, 963 F.3d 528 (6th Cir. 2020).
 Id. at 530.
 U.S. Sentencing Guidelines Manual § 1A1.2 (U.S. Sentencing Comm’n 2018).
 Id. §§ 2B3.1(a), (b)(2)(E), (b)(3).
 Id. § 1A1.2.
 Id. ch. 5, pt. A, sentencing tbl.
 Id. The Guidelines do allow for a court to deviate from the calculated sentencing range if a case presents atypical features. If a court does deviate, it must specify its reasons for doing so under 18 U.S.C. § 3553(b). Id. § 1A1.2.
 Id. § 2B3.1(b)(4)(A).
 Id. § 1B1.1 cmt. n.1(A).
 Id. § 2B3.1(b)(4)(B).
 Id. § 1B1.1 cmt. n.1(L).
 593 F.3d 645, 654 (7th Cir. 2010).
 Id. at 648.
 Id. at 654.
 719 F.3d 1206, 1222 (11th Cir. 2013).
 Id. at 1209-1201.
 Id. at 1222-1223.
 Id. at 1223.
 Id. (citing United States v. Jones, 32 F.3d 1512, 1519 (11th Cir. 1994)).
 Id. (citing Jones, 32 F.3d at 1519).
 Id. (citing Jones, 32 F.3d at 1519).
 Hill, 963 F.3d at 533.
 Id. at 530.
 Id. at 534.
 87 F.3d 722, 728 (5th Cir. 1996).
 Id. at 724.
 Id. at 728.
 514 F.3d 377, 390 (4th Cir. 2008).
 Id. at 387.
 680 F.3d 283, 291 (3d Cir. 2012).
 865 F.3d 1280, 1288 (10th Cir. 2017).
 E.g., Reynos, 680 F.3d at 290; Archuleta, 865 F.3d at 1287-1288.
 Hill, 963 F.3d at 534 (quoting Whitfield v. United States, 574 U.S. 265, 267-268 (2015)).
 Id. at 535.
 Osborne, 514 F.3d at 387.
 Osborne, 514 F.3d at 390.
 Hill, 963 F.3d at 537.