(Rendell, Chagares, Jordan, J.)
Thomas Smith pulled his
car off of the road, pretending to be disabled, and flagged down the manager of
the local Citizens & Northern Bank, Kimberlea Whiting, who was driving home
from the bank for lunch. Smith’s motive
was revenge: He blamed the bank for
initiating foreclosure proceedings on his house. Smith drew a gun, which was stolen, and
ordered Whiting to drive to the bank, saying she and another bank employee were
going to pay for taking his house. Once
at the bank, Smith directed Whiting to drive to the rear parking lot. Whiting, fearing he would shoot her there,
continued past the lot. She ultimately slowed her Ford Explorer and rolled out
of it and onto the street. When the Explorer came to a stop, Smith abandoned it
and fled on foot. Smith was convicted of
carjacking, brandishing a firearm during a crime of violence, and possessing a
stolen firearm after trial.
The
appeal challenged the district court’s application of two sentencing
enhancements - - a four-level enhancement under § 2B3.1(b)(4)(A) for the victim’s abduction, and a
one-level enhancement under §
2B3.1(b)(7)(B) for the victim’s loss.
Section 2B3.1(b)(4)(A) of
the Sentencing Guidelines applies “[i]f any person was abducted to facilitate
commission of the offense or to facilitate escape.” U.S.S.G. § 2B3.1(b)(4)(A)
(2012). The Court describes three predicates for the abduction enhancement. 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.
Here, Smith used force to
control both Whiting and her vehicle by pointing a gun at her and directing her
to drive to the bank. He forced Whiting
to accompany him to a new location. And Smith forced Whiting to return to the
bank to facilitate his threatened revenge for the foreclosure on his home.
Smith’s challenge to the
enhancement was based on the fact that Whiting disregarded some of his commands
and ultimately escaped. The Court declines
what it calls Smith’s invitation to fashion an exception to the abduction
enhancement for when a victim struggles with the offender to the point that he
or she thwarts the intended criminal objective, explaining that the invitation
“is based on the perverse logic that a victim's boldness lessens a criminal's
culpability.” Use of force is determined
by an objective, not subjective, standard. “Thus, whether or not a victim
struggles or disobeys orders, as long as a reasonable person would not have
felt free to refuse the offender's commands, the predicate is satisfied.” The
court makes explicit the holding that “the intended crime need not be
accomplished for the abduction enhancement to apply.”
Smith next argues that the court
wrongly applied the loss enhancement because Whiting's car was not “taken,
damaged, or destroyed,” as those terms are used in § 2B3.1 of the Guidelines. Application Note 3 in the Commentary to
Section 2B3.1 defines “loss” for purposes of robbery as “the value of the
property taken, damaged, or destroyed.” U.S.S.G. § 2B3.1 cmt. n. 3. Smith did not damage or destroy the vehicle
and was only a temporary passenger. The
Court declines to limit “taken” to situations involving a permanent deprivation
of property. Following opinions from several
other circuits, the Court holds that here, Smith exercised dominion and
control, albeit temporarily, over the vehicle when he coerced Whiting, against
her will and at gunpoint, to drive to the bank. Whiting's later escape did not
erase that taking.
The Court affirms the
judgment of sentence.
Summary by Renee D. Pietropaolo
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