<i>Concurring Opinion</i> , United States v. Deleon

[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-10478 ____________________UNITED STATES OF AMERICA, Plaintiff-Appellee,versusJOSEPH DELEON,a.k.a. Joseph Nieves, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:18-cr-00325-MSS-JSS-1 ____________________Before Rosenbaum, Newsom, and Abudu, Circuit Judges. Rosenbaum, Circuit Judge:Our prior-precedent rule requires us to follow Eleventh Circuit precedent—even if we disagree with it or think that prior panels have overlooked important arguments—unless and until the Supreme Court or our court sitting en banc abrogates the precedent. This is one of those cases where the prior-precent rule controls the outcome.The United States Sentencing Guidelines impose a two-level enhancement, as relevant here, for an armed robbery, “if any person was physically restrained to facilitate commission of the offense or to facilitate escape.” U.S. Sent’g Guidelines Manual § 2B3.1(b)(4)(B). This case requires us to determine whether the victim was “physically restrained” under the meaning of the Guidelines when Defendant Joseph Deleon walked into a store, pointed a gun at the cashier while demanding money from the register, received the money, and then left, all within about one minute.After careful review of the record and case law, and with the benefit of oral argument, we are bound to affirm.Deleon walked into a convenience store, went up to the counter, and asked for cigarettes. He handed the cashier $10 to pay for the cigarettes. But when the cashier opened the register, Deleon took out a handgun and pointed it at the cashier. A video of the offense shows that the counter put little—but some—distance between Deleon and the cashier. The cashier gave Deleon all the money from the register.Deleon wasn’t satisfied. So he repeatedly signaled for the cashier to look again in the register, including by reaching over the counter to point into the register. So the cashier kept looking. Out of cash, the cashier gave Deleon $40’s worth of United States postal stamps. At no point does the record indicate that Deleon actually touched the cashier. Deleon then left the store. Based on the video, the entire incident lasted about one minute.A grand jury indicted Deleon for Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) and (b) (Count 1), and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 2). After a trial, a jury convicted Deleon on both counts. The district court sentenced Deleon to 240 months’ imprisonment (156 months on Count 1 and 84 months on Count 2, running consecutively). Over Deleon’s objection, this sentence included a two-level physical-restraint enhancement under section 2B3.1(b)(4)(B) of the Guidelines. To support this enhancement, the district court found that Deleon had physically restrained the cashier by pointing a gun at him and forcing him to empty the register.Deleon appealed that sentence but did not challenge the physical-restraint enhancement. The Eleventh Circuit vacated the sentence and remanded for resentencing on the ground that the district court had added a career-offender enhancement even though Hobbs Act robbery is not a crime of violence for purposes of that enhancement. United States v. Deleon, 812 F. App’x 948, 952 (11th Cir. 2020) (per curiam).On remand, the probation officer again recommended the two-level enhancement for physical restraint under section 2B3.1(b)(4)(B). Deleon again objected to the enhancement, arguing that his conduct did not rise to the level of “physical restraint.” And the district court again rejected Deleon’s arguments and imposed the physical-restraint enhancement.In support of its determination, the court explained, [Deleon] did pull out a gun. He held it to the victim. He forced the victim to comply by passing him the goods he sought to secure, and the victim clearly in this case did not feel at liberty to leave in light of the presence of the weapon. In fact, as I recall, the victim was so entranced by and terrorized by the weapon that that was all he could remember. And so the [c]ourt finds under the circumstances of this case, the use of the weapon did ensure compliance by the victim and did impede the victim from fleeing to another part of the store and restrained the victim to the space where he was standing in order to meet the demands of Mr. Deleon.Sent’g Hr’g 10, Sept. 15, 2021.Then the court resentenced Deleon to 135 months in prison (51 months as to Count 1 and 84 months as to Count 2, running consecutively). Relevant here, the total offense level for Count 1 (robbery) under the Guidelines was twenty-two. That total offense level included a base level of twenty plus the two-level physical-restraint enhancement. Count 2 (using a firearm during a crime of violence) added an additional seven years under 18 U.S.C. § 924(c)(1)(A)(ii).Deleon timely appealed.On appeal, Deleon challenges his sentence based solely on the district court’s application of the two-level sentencing enhancement for physical restraint under section 2B3.1(b)(4)(B). He argues that if the enhancement applies here, it necessarily applies in all armed robbery cases, effectively raising the base level of armed robbery to twenty-two instead of twenty.We first addressed the scope of the physical-restraint enhancement in United States v. Jones, 32 F.3d 1512 (11th Cir. 1994). There, we considered the commentary. See id. at 1518. We noted that the commentary defined “physically restrained” as “the forcible restraint of the victim as by or we that in that that the of physical restraint are by of and that in we the and of the of “physically physically his if he circumstances the no but at and years in United States v. F.3d (11th Cir. we on we in There, the he had a gun in his and pointed it at a at he the to the and that he had a gun and any did not comply with his We application of the enhancement. In we that the with the to a gun to from the physically restrained under at though he did not actually have a we the victim he did that was forced to And when the that he had not the we noted that section no that the victim at In we the enhancement applies when “the conduct the compliance and effectively from a and in United States v. (11th Cir. No. we and and again that section 2B3.1(b)(4)(B) applies a circumstances no but at and we that have a case if had pointed a gun at the victim the counter, money or money from the and left at But under the we again in enhancement applies a circumstances no but the enhancement to the we in at In that case, the have circumstances his victim no but After think compliance was in that that from is to the here, Deleon pointed a gun at the cashier and the cashier him with he money or that and all the So Deleon circumstances no but And under our the district court section enhancement for “physical argues our the enhancement not he that the enhancement to it to armed robbery, effectively raising the base offense level to twenty-two instead of Deleon argues that the physical-restraint enhancement when a demands money at during an armed robbery him a for the conduct as his sentence for his under § 924(c)(1)(A)(ii) for brandishing a firearm during a crime of In Deleon a to both of Deleon’s arguments is as explained, our us to that the enhancement applies to conduct and have rejected an overlooked or to the In F.3d (11th Cir. (per of the that Deleon argues that the physical-restraint enhancement on the of his case the from his we that support of his argument, Deleon to the Guidelines commentary under section that in application of any offense for brandishing or a firearm if the is sentenced under § He out that the probation officer did not the enhancement for when firearm was under section of the section commentary. the the section Deleon that we the physical-restraint enhancement a § the conduct of brandishing a or that when one part of the Guidelines is to a on of a of that for by application of another part of the United States v. F.3d (11th Cir. is when the Sentencing the and section in a to United States v. (11th Cir. And we that the Sentencing to we are For that the conduct United States v. F.3d (11th Cir. is that by the to the at here, the sentence for brandishing a gun and the enhancement for physically a victim not necessarily and the For an armed a store with a gun on his and for the any or demanding with the have a but he not “physically restrained” his under our of the though the commentary to section not to or of a firearm when a sentence for a § violation the Guidelines no commentary us not to the physical-restraint enhancement in this we any that the Sentencing us not to sentence See United States v. F.3d Cir. offense by § 2B3.1(b)(4)(B) is the use of physical not the presence of a The firearm was a to the physical restraint by the sentencing enhancement does not to United States v. F.3d Cir. that is under the sentencing where it is and the Guidelines not a physical-restraint enhancement on of a sentence for a § all we Deleon’s that section physical-restraint enhancement does not to his And we the district the district court’s application of the physical-restraint Circuit by Abudu, Circuit in this case is for en banc the the of cases us to the application of the physical-restraint enhancement. our the enhancement to any “the conduct the compliance and effectively from a United States v. F.3d (11th Cir. and But if I on a I that section 2B3.1(b)(4)(B) does not Deleon’s a of the of section 2B3.1(b)(4)(B) does not support our or application of that we a we with its See United States v. (11th Cir. The of section 2B3.1(b)(4)(B) that to Deleon’s conduct any person was physically restrained to facilitate commission of the offense or to facilitate by 2 determine the meaning of this we our of id. at if the that we then look to the Guidelines commentary. at this I with the meaning of “physically § the that the meaning of the To determine the meaning of a we to In F.3d (11th Cir. the from or or under or the or and of or But the of or where 2B3.1(b)(4)(B) the with to the in or by a physical in with physical or to the the relevant of the of is or to the to the of or to or the it all under the a or the for the enhancement to A restraint that is solely or in not under section does a restraint to with the of but “physically restrained” to a restraint in the if the of the it to person was restrained” in a physical or have included the But the the That And by its “physically restrained” not or After is of it no or or v. U.S. v. U.S. See The of not that have no a that we its meaning in section I this enhancement to that physical another to the a victim of an armed robbery In to at but up or physically bound is and in another that the is if I on a I with the as as with See at And I not the enhancement in Deleon’s But even if the the application and commentary are with and support the meaning of the See “physically restrained” as “the forcible restraint of the victim as by or § § And the commentary that the an enhancement for where a victim was physically restrained by or § So as the the commentary and application that section enhancement the use of physical we to this of section 2B3.1(b)(4)(B) to Deleon’s case, I with Deleon that the enhancement does not Deleon pointed a gun at the cashier to his I the cashier did not to leave under those But I that the pointed gun restrained the cashier to facilitate Deleon’s crime it did not physically or any to the So by its section 2B3.1(b)(4)(B) not of our section 2B3.1(b)(4)(B) we and of United States v. F.3d Cir. There, the Circuit held that a gun and to and not is to the at court gave it that the conduct was from the Guidelines of physical or it that the meaning of “physical requires pointing a gun and not to The court that the Guidelines not have included the in section 2B3.1(b)(4)(B) if the enhancement applies even when the victim are restrained but are not actually to physical restraint.” at the court found that if the enhancement in that case, robbery to the enhancement for physical restraint it took in at In the that a for a to with a in United States v. F.3d Cir. the Circuit held that the physical-restraint enhancement did not when the held one pointed a gun at an and to on the and another by the at The court that the forced to to a or the to “the of physical restraint that when are or at the court that the did not with that during an armed so the enhancement did not at The Circuit with at and D.C. pointing a gun and a to the physical-restraint enhancement. See United States v. F.3d Cir. that pointing a gun at a victim and not to does not as physical United States v. F.3d Cir. that the enhancement requires pointing a gun at a victim and to to physical that all armed United States v. F.3d Cir. the enhancement did not even where the forced the to at even though the not physically and effectively the two-level to any any victim feel restrained if to at by the physical-restraint enhancement to when a a by a even in the of or physical United States v. F.3d 15, Cir. application of the physical-restraint enhancement where the pointed at the not to and one United States v. F.3d Cir. application of the physical-restraint enhancement where the a gun to to the from both the and the United States v. Cir. application of the physical-restraint enhancement where the the victim at to on the and to with United States v. F.3d Cir. application of the physical-restraint enhancement where the a gun not to and the the on the of the physical-restraint enhancement, Deleon’s case a to our the on in the the of our with section 2B3.1(b)(4)(B) actually our on § 2B3.1(b)(4)(B) is not to the of the physical-restraint enhancement, I that we it en Circuit is a of to in v. United (11th Cir. There, I the I as it that is the rule for the of and and the at the benefit of a and by all the that I I by I that I in with this case, a that I in one that worth and we of the that the to the that the but it not but even And from an it a of the the district court Deleon’s sentence on the ground that he “physically restrained” one of his during the of a § 2B3.1(b)(4)(B). I with the that our in United States v. Jones, 32 F.3d 1512 (11th Cir. and United States v. F.3d (11th Cir. this case and us to the enhancement. 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