AMENDMENT 832

Amendment:

Part A (Circuit Conflict Concerning “Physically Restrained” Enhancements)

Section 2B3.1(b)(2)(B) is amended by striking “if a firearm was otherwise used” and inserting “if a firearm was used to convey a specific (not general) threat of harm (e.g., pointing the firearm at a specific victim or victims; directing the movement of a specific victim or victims with the firearm) or to make physical contact with a victim (e.g., pistol whip; firearm placed against victim’s body)”.

Section 2B3.1(b)(4)(B) is amended by striking “if any person was physically restrained” and inserting “if any person’s freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up,”.

The Commentary to §2B3.1 captioned “Application Notes” is amended in Note 1 by striking “ ‘abducted,’ and ‘physically restrained’ are defined” and inserting “and ‘abducted’ have the meaning given such terms”.

The Commentary to §2B3.1 captioned “Background” is amended by striking “was physically restrained by being tied, bound, or lock up” and inserting “a victim’s freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up”.

Section 2B3.2(b)(3)(A)(ii) is amended by striking “if a firearm was otherwise used” and inserting “if a firearm was used to convey a specific (not general) threat of harm (e.g., pointing the firearm at a specific victim or victims; directing the movement of a specific victim or victims with the firearm) or to make physical contact with a victim (e.g., pistol whip; firearm placed against victim’s body)”.

Section 2B3.2(b)(5)(B) is amended by striking “if any person was physically restrained” and inserting “if any person’s freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up,”.

The Commentary to §2B3.2 captioned “Application Notes” is amended in Note 1 by striking “ ‘physically restrained,’ ”.

Section 2E2.1(b)(1)(B) is amended by striking “if a dangerous weapon (including a firearm) was otherwise used” and inserting “if a dangerous weapon (including a firearm) was used to convey a specific (not general) threat of harm (e.g., pointing the weapon at a specific victim or victims; directing the movement of a specific victim or victims with the weapon) or to make physical contact with a victim (e.g., pistol whip; weapon placed against victim’s body)”.

Section 2E2.1(b)(3)(B) is amended by striking “if any person was physically restrained” and inserting “if any person’s freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up,”.

The Commentary to §2E2.1 captioned “Application Notes” is amended in Note 1 by striking “ ‘otherwise used,’ ”; and by striking “ ‘abducted,’ and ‘physically restrained’ ” and inserting “and ‘abducted’ ”.

The Commentary to §2X1.1 captioned “Application Notes” is amended in Note 2 by striking “the defendants actually intended to physically restrain the teller, the specific offense characteristic for physical restraint would be added” and inserting “the defendants actually intended to restrict the teller’s freedom of movement through physical contact or confinement, the specific offense characteristic for such restriction would be added”.

Part B (Circuit Conflict Concerning Meaning of “Intervening Arrest” in §4A1.2(a)(2))

Section 4A1.2(a)(2) is amended in the paragraph that begins “If the defendant” by inserting after “the second offense).” the following: “For purposes of this provision, a traffic stop is not an intervening arrest.”.

Reason for Amendment: This two-part amendment addresses circuit conflicts involving §2B3.1 (Robbery) and §4A1.2 (Definitions and Instructions for Computing Criminal History).

Part A – Circuit Conflict Concerning “Physically Restrained” Enhancements

Part A of the amendment responds to a circuit conflict over whether §2B3.1(b)(4)(B)—which provides for a 2-level increase “if any person was physically restrained to facilitate commission of the offense or to facilitate escape”—applies where a robbery victim is restricted from moving at gunpoint but is not otherwise immobilized through measures like those in the definition of “physically restrained” in Application Note 1 to §1B1.1 (Application Instructions) (i.e., “by being tied, bound, or locked up”).

The Second, Third, Fifth, Seventh, and Ninth Circuits have largely agreed that the psychological coercion of pointing a gun at a victim, without more, does not qualify, and that a restraint must be “physical” for the enhancement to apply. See, e.g., United States v. Anglin, 169 F.3d 154, 164 (2d Cir. 1999); United States v. Bell, 947 F.3d 49, 57 (3d Cir. 2020); United States v. Garcia, 857 F.3d 708, 713–14 (5th Cir. 2017); United States v. Herman, 930 F.3d 872, 877 (7th Cir. 2019); United States v. Parker, 241 F.3d 1114, 1118–19 (9th Cir. 2001). By contrast, the First, Fourth, Sixth, Tenth, and Eleventh Circuits have held that restricting a victim’s movement at gunpoint suffices for the enhancement. See, e.g., United States v. Wallace, 461 F.3d 15, 34–35 (1st Cir. 2006); United States v. Dimache, 665 F.3d 603, 608 (4th Cir. 2011); United States v. Howell, 17 F.4th 673, 692 (6th Cir. 2021); United States v. Miera, 539 F.3d 1232, 1235–36 (10th Cir. 2008); United States v. Deleon, 116 F.4th 1260, 1264 (11th Cir. 2024).

The Commission received public comment and testimony indicating that the conduct at issue in the circuit split (pointing a gun at a victim during a robbery) is treated differently not only under §2B3.1(b)(4)(B) but also under the separate §2B3.1(b)(2) enhancement. Section 2B3.1(b)(2) provides for tiered offense level increases for threats and weapon involvement in a robbery, including a 5-level enhancement “if a firearm was brandished or possessed” and a 6-level enhancement “if a firearm was otherwise used.” The terms “brandished” and “otherwise used” are defined in Application Note 1 to §1B1.1.

Circuits that have considered the difference between these definitions generally agree that while “brandished” covers the general display of a weapon, a firearm is “otherwise used” where it is employed for a specific threat. See, e.g., United States v. Jordan, 945 F.3d 245, 264 (5th Cir. 2019) (“While brandishing ‘can mean as little as displaying part of a firearm or making the presence of the firearm known in order to intimidate,’ otherwise using a weapon includes pointing the weapon at an individual in a specifically threatening manner.” (citation omitted)); United States v. Johnson, 803 F.3d 610, 616 (11th Cir. 2015) (“[T]he ‘otherwise use[]’ of a firearm includes the use of the firearm to make an explicit or implicit threat against a specific person.”).

Commission data shows, however, that pointing a gun at a victim during a robbery has resulted in the 5-level “brandished” increase in some cases and the 6-level “otherwise used” increase in others. The combination of these differing applications of the firearms enhancement and the conflict among the circuits regarding the 2-level “physically restrained” enhancement has led to disparities: the total resulting enhancements have ranged from five to eight levels for pointing a gun at a victim during a robbery.

To promote uniformity and consistency in guideline application, Part A of the amendment generally adopts the approach of the Second, Third, Fifth, Seventh, and Ninth Circuits that §2B3.1(b)(4)(B) does not apply solely based on the coercion of using a firearm to restrict a victim’s movement. Rather, the increase applies only “if any person’s freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up, to facilitate commission of the offense or to facilitate escape.”

Part A of the amendment also revises §2B3.1(b)(2) to ensure that use of a firearm during a robbery is accounted for under this enhancement with more uniformity. It amends §2B3.1(b)(2)(B) to state that the 6-level increase applies “if a firearm was used to convey a specific (not general) threat of harm (e.g., pointing the firearm at a specific victim or victims; directing the movement of a specific victim or victims with the firearm) or to make physical contact with a victim (e.g., pistol whip; firearm placed against victim’s body).”

To further promote consistency in application of offense guidelines with similar specific offense characteristics, the amendment makes parallel changes to two Chapter Two guidelines with “physically restrained” and “otherwise used” enhancements: §§2B3.2 (Extortion by Force or Threat of Injury or Serious Damage) and 2E2.1 (Making or Financing an Extortionate Extension of Credit; Collecting an Extension of Credit by Extortionate Means). The amendment does not make parallel changes to §3A1.3 (Restraint of Victim), which also uses the term “physically restrained” but differs from §2B3.1(b)(4)(B) in other respects. No inferences as to the scope of that Chapter Three adjustment should be drawn from this amendment.

Part B – Circuit Conflict Concerning Meaning of “Intervening Arrest” in §4A1.2(a)(2)

Part B of the amendment addresses a circuit conflict over whether a traffic stop is an “intervening arrest” for purposes of determining whether multiple prior sentences should be “counted separately or treated as a single sentence” when assigning criminal history points (“single-sentence rule”) under §4A1.2(a)(2).

The Third, Sixth, Ninth, and Eleventh Circuits have held that a formal, custodial arrest is required, and that a citation or summons following a traffic stop does not qualify. See United States v. Ley, 876 F.3d 103, 109 (3d Cir. 2017); United States v. Rogers, 86 F.4th 259, 264–65 (6th Cir. 2023); United States v. Leal-Felix, 665 F.3d 1037, 1041–42 (9th Cir. 2011) (en banc); United States v. Wright, 862 F.3d 1265, 1282 (11th Cir. 2017). By contrast, the Seventh Circuit has adopted a broad view of the term, holding that a traffic stop amounts to an intervening arrest. See United States v. Morgan, 354 F.3d 621, 624 (7th Cir. 2003).

After reviewing public comment and testimony, the Commission determined that a traffic stop should not be considered an “intervening arrest” for purposes of the single-sentence rule. The amendment revises §4A1.2(a)(2) to include that clarification.

Effective Date: The effective date of this amendment is November 1, 2025.