The Sixth Circuit Picks a Side in the “Different Location” Debate

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The U.S. Sentencing Guidelines were supposed to make sentencing simpler. Practitioners know that there is nothing simple about them. The Guidelines manual is a hefty book and cases interpreting these provisions fill the Federal Reporters and Federal Appendices interpreting the Guidelines. Advisory though they may be sometimes parsing the text of a guideline can make a difference in years and months.

In United States v. Hill, the Sixth Circuit had to decide whether a victim is taken to a “different location” if the robber forced the victim from the sales floor to a back room. Section 2B3.1(b)(4)(A) increases the base level for a robbery offense if a victim “was abducted to facilitate commission of the offense.” What does “abduction” mean? The commentary says abduction occurs when “a victim was forced to accompany an offender to a different location.” U.S.S.C. §1B1.1 cmt. n.1(A). Courts disagree about what exactly is a “different location.”

At Mr. Hill’s sentencing, the government argued that the abduction enhancement applied under these facts, which would raise the base offense level by four. Mr. Hill’s attorney argued that only a two-level enhancement should apply for “physically restrain[ing a victim] to facilitate commission of the offense or to facilitate escape.” U.S.S.G. § 2B3.1(b)(4)(B). The difference was significant. If the abduction enhancement applies, then the Guidelines range is 130–167 months in prison (10 years and 10 months to 13 years and 11 months). Without that enhancement, the Guidelines range is 110–137 months’ imprisonment (9 years and 2 months to 11 years and 5 months).

Considering dictionary definitions didn’t help the court decide whether a back room is a “different location” from the front of the store. So, the court turned to other interpretive tools beginning with ordinary use. In the ordinary course, when discussing where a robbery took place, people usually say, “a bank,” “a store,” or “a gas station.” They don’t say, “the sales floor of a cell phone store.”

Then the court looked at the word “accompany,” which denotes some movement—even minimal movement. That suggests that there would be no need to include the phrase “different location” when a sentence without it already covers forced movement.

Next, the example provided in the commentary offered some insight into what the Guidelines’ drafters were thinking. That example involves taking a teller from the bank into the getaway car, which the court concluded lent support for the conclusion that the back room and the sales floor are not “different locations.”

Circling back to the original text of the statute, the court looked at the word “abduct,” which is synonymous with “kidnap.” It reasoned that when most people hear those words, they don’t think of moving a person into a different room. Instead, people would be more likely to say that the victims were held hostage.

Finally, the court considered the neighboring enhancement for physically restraining victims. The commentary to that provision describes locking up victims, which would presumably also require some movement. There would be no need to have two different enhancements for the same conduct.

For all these reasons, the court joined the Seventh and Eleventh Circuits to hold that moving victims from one room of a store to another does not qualify as “abduction.” It added one note of caution, however, that many of these determinations will be fact-specific. Judge Siler wrote a short dissent, explaining that he found the reasoning of the Third, Fourth, Fifth, and Tenth Circuits more persuasive.

There’s good evidence this was a fight worth having. The judge sentenced Mr. Hill to 130 months’ imprisonment—at the bottom of the higher Guidelines range. Mr. Hill will return to the district court for resentencing where he surely hopes the judge will impose a sentence at the bottom of the new range.