Friday, June 22, 2012

The Third Circuit Expands Definition Of "a different location" For Application Of The Abduction Enchancement.

In United States v. Reynos, No. 11-1398, (3d Cir. May 22, 2012), the Third Circuit clarified the definition of abduction for purposes of four-level enhancement under U.S.S.G. §2B3.1(b)(4)(A).   According to the Guidelines a victim is “abducted” when he or she is “forced to accompany an offender to a different location.”  Under the Third Circuit’s analysis and ruling in Reynos, a very broad range of actions will qualify as an abduction and lead to the four-point enhancement.  In particular, the circuit court took an expansive view of what constitutes “a different location.” 

    This case involved the armed robbery of a pizzeria in Philadelphia.  During the robbery,  the employees hid, locking themselves in the bathroom.  The assailants, including appellant Reynos, kicked in the bathroom door and, brandishing a weapon, ordered the employees to open the cash register.  Later, all of the employees were able to escape, running out of the front door, while Reynos went to secure the back door.  Although none of the employees were forced to leave the pizzeria, the district court applied the four-level enhancement for abduction.  The Third Circuit affirmed.

    The major issue in this appeal was what constituted a change of location.  Reynos argued that moving the employees from the bathroom to the cash register did not qualify as a change of location, noting the distance between the two spots was less than 40 feet and that he never removed the victims from the pizzeria.  In determining what constituted a different location, the Third Circuit decided to apply the flexible, case specific approach used by the Fourth and Fifth Circuits.  Under this approach, the enhancement is applicable even if the victim(s) are never removed from the building.  The Court made an analogy to a courthouse noting that a courtroom, the clerk’s office and judicial chambers where all in the same facility, but constituted different and distinct locations.  In this case, the victim(s) were removed from a secure room that was separated from the cash register by a locked door, walls and a hallway.  This was sufficient to make the bathroom a separate location, within the pizzeria, from the cash register.

    Additionally, regarding the requirement that the perpetrator use force to move the victim(s), the Third Circuit confirmed that force is not limited to physical force.  Rather, use of threats, intimidation and fear are sufficient to satisfy this requirement.  Although there was no evidence Reynos used physical force, his brandishing a weapon at the victim(s) qualified as use of force. 

    In view of these definitions, the Third Circuit found the sentencing court properly applied the abduction enhancement.


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