UNITED STATES v. HUNTER (2020)

SUMMARY ORDER

Appellant David Daniel Hunter appeals from the October 1, 2018 judgment of the Northern District of New York (Scullin, J.), principally sentencing Hunter to concurrent terms of 96 months’ imprisonment for each of two convictions for Hobbs Act Robbery, 18 U.S.C. § 1951(a). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

We review de novo whether the district court erred in applying the two-level sentencing enhancement for physical restraint of persons to facilitate a robbery under United States Sentencing Guidelines § 2B3.1, see United States v. Thompson, 921 F.3d 82, 85 (2d Cir. 2019), the issue presented on this appeal.

The district court erred in applying the physical restraint enhancement to Hunter’s conviction for the New York robbery. Based on our review of the facts of the New York robbery as presented in the PSR and the New York plea agreement, Hunter did not “physically restrain” any person within the meaning of U.S.S.G. § 2B3.1. In United States v. Anglin, 169 F.3d 154, 164 (2d Cir. 1999), we explained that the physical restraint enhancement requires actual physical restraint. We noted that physical restraint could be accomplished a number of ways, such as by “immobiliz[ing]” a victim “by stepping on his throat” or through “threats of death ․ as well as an admonition ․ that an armed accomplice stood outside the door,” which “served as a figurative lock and key.” Id. at 163 (quotation marks omitted). Thus, while “displaying a gun and telling people to get down and not move” may cause victims to “feel restraint,” “without more,” such actions are insufficient to trigger the “physical restraint” enhancement. Id. at 164 (emphasis added). We have therefore declined to apply the enhancement where a robber’s “direction to move is typical of most robberies” and where there was no “physical restraint similar to being bound or moved into a locked or at least a confining space.” United States v. Paul, 904 F.3d 200, 204 (2d Cir. 2018). Here, the record shows that Hunter followed store employees to the store’s break room, stole an employee’s cell phone, directed the employees to count to 100, threatened to hurt the employees if they called the police, and then left the store. There is no evidence that store employees were “tied, bound, or locked up,” U.S.S.G. § 1B1.1, comment. (n.1(K)), or otherwise moved into a confining space, such as a room with a closed or locked door, cf. United States v. Rosario, 7 F.3d 319, 320-21 (2d Cir. 1993).

We conclude, nonetheless, that this error was harmless. The district court stated unequivocally that it would have imposed the same sentence on Hunter even if it did not apply the enhancement, and we cannot say that such a sentence was unsupported by the record. See United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (“Where we identify procedural error in a sentence, but the record indicates clearly that the district court would have imposed the same sentence in any event, the error may be deemed harmless, avoiding the need to vacate the sentence and to remand the case for resentencing.” (quotation marks omitted)).

We have considered the remainder of Hunter’s arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.