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Court of Appeals Considers Whether Sentencing Enhancements Were Appropriate for a Hobbs Act conviction – United States v. Oneal, No. 18-1710 (2d Cir. 2020)


In United States v. Oneal, the Court of Appeals for the Second Circuit examined whether a defendant who pled guilty to conspiracy to commit Hobbs Act robbery was property sentenced under the federal guidelines. Pursuant to 18 U.S.C. § 1951, the Hobbs Act prohibits obstructing commerce by means of robbery or extortion or attempting or conspiring to do so.

Defendant Oneal was arrested and convicted for his involvement in a string of cellphone store robberies. In the first robbery, upon entering the store, the defendant behaved as if he had a firearm in his waistband, and he warned those in the store not to try anything “stupid.” He pushed an employee into an inventory room. He got away with inventory. In the second robbery, he also pretended as if he had a firearm in his belt.  He forced the story occupants to the back of the store and got away with inventory and cash. He attempted to rob a third store, but one of the occupants identified himself as a police officer.  The defendant fled and was apprehended.  Eventually he pled guilty to one count of the federal crime of Hobbs Act robbery conspiracy in violation of 18 U.S.C. § 1951(a).

The defendant was sentenced to 84 months in prison and 3 years of supervised release. His sentence included the application of a three-level enhancement for possession of a dangerous weapon or giving the impression of having a dangerous weapon under U.S.S.G. § 2B3.1(b)(2)(E), and a two-level enhancement for physical restraint, U.S.S.G. § 2B3.1(b)(4)(B). The defendant challenges the application of the enhancements.

On appeal, the court had to determine if under what circumstances the defendant’s hand on his waistband was an “object” qualifying as a “dangerous weapon” for purposes of the enhancement. It also had to determine whether forcing the store occupants into another room amounts to “physical restraint” for purpose of the two-level physical restraint enhancement.

Before applying the enhancements at issue, the defendant’s estimated sentence would have been 57-71 months.  At sentencing, the District Court rejected the defendant’s objections to the dangerous weapon and physical restraint enhancements and sentenced the defendant to 84 months.

In considering the dangerous weapon enhancement, the Court of Appeals noted that because it was determined that the defendant did not have a gun or similar weapon, that the dangerous weapon would be his hand.  The Court of Appeals concluded that the limited facts provided about the defendant’s use of his hand was not enough to justify a dangerous weapon enhanced sentence.  The prosecution’s argument is that the defendant’s actions fell under using an “object in a manger that created the impression that the object was an instrument capable of inflicting death or serious bodily injury.” U.S.S.G. § 2B3.1(b)(2)(E).  However, while it is clear that the defendant want to create an impression that he had a weapon, it is not clear that he used his hand in a way that gave the impression that his hand was a dangerous weapon. The pre-sentencing report did not provide the District Court with sufficient facts to conclude that the defendant gave the impression that his hand was a dangerous weapon.  For example, if the defendant had his hand in his pocket and used his finger to make an impression that his hand was a gun, then there might be sufficient facts to show that the defendant gave the impression that his hand was a weapon. In other words, the Court of Appeals agrees with other circuits that sentencing guidelines require a finding that the defendant must have used some object, such as his hand, as a direct stand-in for a weapon. The pre-sentencing report does not indicate that.

As for the physical restraint enhancement, the Court of Appeals noted that the “physically restrained” requirement must be given a narrow interpretation otherwise the enhancement would apply to virtually every robbery.  In order for the actions of a defendant to constitute physical restraint, the factors considered are whether the restraint was physical, whether it was actual restraint and not only force, and whether the action was constitutive of the robbery or an additional physical restraint that facilitated the robbery. Here there is not enough information in the record to make a finding that the defendant’ conduct t qualified for the physical restraint enhancement.

Because the Court of Appeals concluded that there was not enough information  to support application of either enhancement, it vacated the sentencing and remanded for resentencing.


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