[00:00:00] Speaker 02: We'll begin with our first case, United States versus Vargas, case number 22-1400. [00:00:07] Speaker 02: Ms. [00:00:08] Speaker 02: Stengel? [00:00:10] Speaker 02: You may proceed. [00:00:15] Speaker 02: May it please the court, my friend from the United States, I am Jessica Stengel representing Mr. David Vargas. [00:00:22] Speaker 02: You see something, it looks like a duck, it walks like a duck, it sounds like a duck, [00:00:28] Speaker 02: you're unlikely to look at that thing in point and say, goose. [00:00:32] Speaker 02: Yet that's exactly what happened in the case below. [00:00:35] Speaker 02: The district court saw Mr. Vargas brandish a gun. [00:00:39] Speaker 02: The district court saw Mr. Vargas otherwise use the gun. [00:00:42] Speaker 02: And then the district court pointed and said, that's physical restraint. [00:00:45] Speaker 02: Let's imply the enhancement. [00:00:47] Speaker 02: In a more formal way of saying it, as a matter of law, the district court's factual findings are insufficient to support application [00:00:56] Speaker 02: of the physical restraint enhancement for both robberies. [00:00:59] Speaker 02: Why is that so, particularly as to the DSW robbery? [00:01:05] Speaker 02: So I think there are two answers, and I'm going to go with the easy one first. [00:01:10] Speaker 02: There was no specific targeting with the gun where Mr. Vargas specifically prevented any defendant, excuse me, any victim [00:01:18] Speaker 02: And I think that's an easy answer to come to by first looking at what this court has said, starting in Fisher and consistently through Miera, that first of all, the physical restraint enhancement is something more than brandishing and something more than simply otherwise using a gun. [00:01:37] Speaker 02: In the very narrow context, physical restraint occurs when a defendant specifically points a gun at a victim and prevents them from moving. [00:01:46] Speaker 02: So I guess where I'm stuck is how that's not the facts, specifically as to the DSW robbery. [00:01:52] Speaker 02: Sure. [00:01:53] Speaker 02: Should we not construe the slamming of the gun down on the counter? [00:01:58] Speaker 02: as pointing? [00:02:00] Speaker 02: I mean, do we have to conclude that the district court did not clearly air in finding the gun was pointed? [00:02:06] Speaker 02: I think for purposes of this argument, we look at what the victim testified to, and the victim testified that the gun was pointed at her. [00:02:11] Speaker 00: Would you pull a microphone? [00:02:13] Speaker 02: Sure. [00:02:14] Speaker 02: I apologize, Your Honor. [00:02:17] Speaker 02: So the victim during trial said, Mr. Vargas pointed the gun at her. [00:02:22] Speaker 02: I don't think there's a basis to argue against that. [00:02:24] Speaker 02: What Mr. Vargas did not do when he pointed the gun at her [00:02:27] Speaker 02: He did not say freeze. [00:02:29] Speaker 02: He did not say don't move. [00:02:30] Speaker 02: What he said was, pick up the shoes. [00:02:32] Speaker 02: And this is precisely the case. [00:02:35] Speaker 02: This replicates what happened in United States versus Ortiz, where the court was dealing with the otherwise use enhancement. [00:02:41] Speaker 02: And there the court said, okay, let's distinguish between otherwise use and brandishing. [00:02:46] Speaker 02: And brandishing is a general threat. [00:02:48] Speaker 02: I think Mr. Vargas absolutely brandished the gun in the footlocker incident. [00:02:53] Speaker 02: He made it known it was a general threat. [00:02:54] Speaker 02: He didn't point it at anyone. [00:02:55] Speaker 02: He didn't say, don't move. [00:02:57] Speaker 02: He didn't even say this is a robbery. [00:03:00] Speaker 02: In the DSW robbery, he brandished the gun. [00:03:04] Speaker 02: And I think slamming the gun on the counter is unequivocally brandishing. [00:03:08] Speaker 02: And I think the jury agreed. [00:03:09] Speaker 02: They convicted him of the 924C count. [00:03:13] Speaker 02: Then he went one step further. [00:03:15] Speaker 02: There's something more to get into the otherwise use of the gun, which is he brandished the gun, pointed the gun at the clerk, and said, [00:03:23] Speaker 02: do something. [00:03:24] Speaker 02: I'm ordering you to comply." [00:03:25] Speaker 02: And that's exactly what happened in Ortiz where in the course of a carjacking, albeit with a BB gun and not a quote unquote real gun, there Mr. Ortiz carjacked someone, first pointed his BB gun at the passenger and said, give me the car keys. [00:03:41] Speaker 02: The passenger's not going to have the car keys. [00:03:43] Speaker 02: Mr. Ortiz getting frustrated said, [00:03:45] Speaker 02: Great. [00:03:45] Speaker 02: I'm going to point my gun now at the driver. [00:03:47] Speaker 02: Give me the car keys. [00:03:48] Speaker 02: And there the Corps found that specifically targeting an individual with a gun and ordering compliance, ordering affirmative movement to do something was otherwise used. [00:03:56] Speaker 02: It was not physical restraint. [00:03:58] Speaker 01: So are you saying that in order to apply the enhancement in the DSW context specifically, there needed to have been some additional language from Mr. Vargas? [00:04:10] Speaker 02: Absolutely, Your Honor. [00:04:11] Speaker 02: And is that what our cases say, that you actually have to, we can't just look at the facts we have here, that what's missing is that a command of some sort that satisfies physical restraint? [00:04:24] Speaker 02: Yes, Your Honor. [00:04:24] Speaker 02: It really does seem to come down to magic words. [00:04:27] Speaker 02: This court's jurisprudence interpreting the physical restraint enhancement has been overly expansive. [00:04:33] Speaker 02: And I think the court today, excuse me, the panel today, has the opportunity to take one of two roads. [00:04:40] Speaker 02: The first road is the easy road and say, look, [00:04:42] Speaker 02: This matter, we're not breaking new ground. [00:04:44] Speaker 02: There's nothing new. [00:04:45] Speaker 02: He otherwise used the gun. [00:04:46] Speaker 02: He did not physically restrain anyone. [00:04:49] Speaker 02: Look at Ortiz. [00:04:50] Speaker 02: Look at what we've said in the era. [00:04:51] Speaker 02: And Fisher and Pearson were done. [00:04:53] Speaker 02: The other option the court has to say this is a great opportunity to refine and clarify what is pretty much right now a boundless interpretation of the physical restraint enhancement. [00:05:05] Speaker 01: I think the gun... In what way is it boundless? [00:05:07] Speaker 01: I mean, our case law suggests that [00:05:10] Speaker 01: that we look beyond the examples and the guidelines. [00:05:12] Speaker 02: We have a broad interpretation, but there certainly is a limiting principle in our laws, they're not. [00:05:18] Speaker 02: I think that the court in Joe suggested that there is no limiting principle at present. [00:05:24] Speaker 02: And I think the government's brief absolutely takes advantage of that. [00:05:28] Speaker 02: And you can see it in two obvious points. [00:05:30] Speaker 02: The first is when the government offers the guideline definition of what it means to be physically restrained, they notably admit [00:05:37] Speaker 02: the list of illustrative examples. [00:05:39] Speaker 02: So they wanted to be this broad idea where in any time you're fearful and any time using their language, there's a denial of the freedom of movement. [00:05:48] Speaker 02: Do we have physical restraint? [00:05:50] Speaker 02: Quite frankly, that seems a far-fetched proposition given that every robbery involves fear and every robbery will involve some type of restriction of movement. [00:06:00] Speaker 02: And the guidelines are intended to punish as the increase, excuse me, [00:06:05] Speaker 02: The guidelines increase punishment as culpability increases. [00:06:09] Speaker 02: So we start with an already high base offense level because every robbery will involve fear and some type of restriction. [00:06:17] Speaker 02: To say otherwise would be to require robbers armed or not to go into any bank or business and say, [00:06:26] Speaker 02: This is a robbery, but go about your business. [00:06:28] Speaker 02: Please conduct business as you see fit. [00:06:30] Speaker 01: So if you were asking this court in this case to refine, as you say, what would be the most precise articulation of the limiting principle you would have us write? [00:06:46] Speaker 02: I think at a minimum, Your Honors. [00:06:48] Speaker 02: It would be useful to defendants in the government, quite frankly, to return to what it means [00:06:56] Speaker 02: to return to the physicality that the guidelines offer as examples in terms of being bound up, in terms of being tied, in terms of being physically restrained. [00:07:06] Speaker 02: I think this court in Shakurah got it absolutely right where first the victim, excuse me again, the victim was tackled and then when that was, so we have a physical force being acted upon the victim to prevent his movement. [00:07:24] Speaker 02: When then, [00:07:25] Speaker 02: In that case, the defendants made extra sure that the victim could not move. [00:07:29] Speaker 02: They physically restrained him by putting a stove on top of him. [00:07:34] Speaker 02: I think the word physical has to have meaning. [00:07:36] Speaker 02: I think we can see that from both this court's case law and from the list of examples in the guidelines. [00:07:43] Speaker 02: So are you suggesting that the defendant is the one that has to do something physical? [00:07:47] Speaker 02: I mean, it seems like our case law has said, [00:07:50] Speaker 01: I don't see it as inconsistent with the guidelines, that we look to whether the defendant's conduct kept someone from doing something. [00:07:59] Speaker 02: Agreed, Your Honor. [00:07:59] Speaker 02: So again, it goes back to the guidelines, which are intended to punish the defendant's conduct. [00:08:05] Speaker 02: What the guidelines did not say, and what an overly expansive interpretation of the enhancement would do, the guidelines did not say, if a reasonable person would feel restrained, then apply the physical restraint enhancements. [00:08:18] Speaker 02: The guidelines say, [00:08:20] Speaker 02: Defendant forcibly restrained. [00:08:23] Speaker 02: So acted upon, the defendant has to do something. [00:08:26] Speaker 02: And again, based on this court's case law, it has to be something more than brandish or otherwise use the gun. [00:08:32] Speaker 02: Is blocking an exit while holding a gun sufficient for the enhancement? [00:08:37] Speaker 02: It is necessary, absolutely. [00:08:39] Speaker 02: And that's the specifics of Miera. [00:08:40] Speaker 02: And I think Miera is simply an example of these facts are enough, but it won't be required in every case. [00:08:52] Speaker 00: What happened in Ortiz after the gun was pointed at one victim and then the other? [00:08:58] Speaker 00: What happened then? [00:09:01] Speaker 02: Well, eventually the defendant was caught. [00:09:03] Speaker 00: I think he was able to... Well, I don't know what happened. [00:09:05] Speaker 00: Was there any further threat? [00:09:08] Speaker 00: I mean, did he then just set the BB gun down or what? [00:09:12] Speaker 02: The case does not tell me what happened following that. [00:09:15] Speaker 00: Well, okay. [00:09:17] Speaker 00: So in this case, since we don't know what happened or keys, I'm not sure how helpful it is then, because in this case, you say the brandishing happens when he slams it down. [00:09:29] Speaker 00: Okay. [00:09:31] Speaker 00: Is it just supplemental brandishing when he keeps his hand on the gun and then moves it as the cashier is moving and picking up the boxes, making sure that [00:09:47] Speaker 00: she is further restrained. [00:09:49] Speaker 00: Why is that the wrong way to look at this? [00:09:54] Speaker 02: Your Honor, I respectfully disagree with how you characterize what happened because that is not what happened. [00:09:58] Speaker 02: The testimony is clear that he slammed the gun on the ground, on the counter. [00:10:02] Speaker 02: Absolutely. [00:10:04] Speaker 02: He moved the gun, boxes fell. [00:10:06] Speaker 02: Then he picked up the gun. [00:10:07] Speaker 02: The cashier testified that he pointed it at her. [00:10:10] Speaker 02: And he said, do something, actively do something. [00:10:15] Speaker 02: And that is consistent with this court's jurisprudence in terms of otherwise use of the gun. [00:10:19] Speaker 02: He did not say to the cashier, pick them up and don't move. [00:10:22] Speaker 00: He did not say freeze. [00:10:22] Speaker 00: I'm talking about what he physically did with the gun. [00:10:25] Speaker 00: Didn't he, after that, continue to move the gun? [00:10:31] Speaker 02: No, Your Honor. [00:10:32] Speaker 02: What he did is he picked up the gun. [00:10:34] Speaker 02: He told the cashier to pick up the boxes. [00:10:37] Speaker 02: She picked up the boxes. [00:10:38] Speaker 02: He walked away. [00:10:40] Speaker 02: He and his accomplice walked away, and he apologized as leaving the store. [00:10:46] Speaker 00: All right, let me ask you about Chikora. [00:10:50] Speaker 00: You say that's a helpful case for you. [00:11:02] Speaker 00: In Chikora, it says, [00:11:08] Speaker 00: A restraint to mean the defendant's conduct must hold the victim back from some action, maybe didn't happen here, procedure or course, prevent the victim from doing something, comma, or otherwise keep the victim within bounds or under control. [00:11:31] Speaker 00: Are you telling me that there is no way to construe these facts? [00:11:35] Speaker 00: in a way that he was otherwise keeping the victim within bounds or under control. [00:11:43] Speaker 02: Correct, Your Honor. [00:11:44] Speaker 02: Based on this court's case law, controlling case law, the court is bound to follow precedent, both in terms of the narrow legal holding and the principles underneath it, as you wisely said in Wells. [00:11:59] Speaker 02: That is precisely what this court has said is otherwise using the gun. [00:12:04] Speaker 02: And it's obvious in Ortiz, but it's also obvious if you take Jacora and you couple that what the court said in Ramirez Hernandez. [00:12:15] Speaker 02: Ramirez Hernandez notes that the guidelines knows how to use physical as a limiting principle. [00:12:21] Speaker 02: And there they said, without physical to modify the use of force, it absolutely gets at the disparity of influence, which this court [00:12:30] Speaker 02: take a step to the side to adjacent to the forcible sex offense, this court has routinely and consistently held that that is the otherwise use of a gun. [00:12:40] Speaker 02: And if there are no further questions, I would like more questions. [00:12:42] Speaker 00: I do. [00:12:43] Speaker 00: I do. [00:12:43] Speaker 00: I'm not finished. [00:12:44] Speaker 02: You can go first. [00:12:50] Speaker 00: I understood the facts in this case a little differently than you do, or at least evidence that the judge could rely upon. [00:13:00] Speaker 00: My understanding that he ordered the manager to pick up the boxes, more in the sense of directions, telling her, moving the gun, to get the boxes. [00:13:19] Speaker 00: And then the manager went in to pick up the boxes. [00:13:24] Speaker 00: And he moved the gun across the counter [00:13:29] Speaker 00: so that as she moved, the gun remained pointed at her. [00:13:35] Speaker 00: Now, that's my understanding of the facts. [00:13:41] Speaker 00: It seems different than what you said the facts were. [00:13:45] Speaker 02: I think we disagree about what he did with the gun, but giving your Honor version of what happened, Creighton, he [00:13:53] Speaker 02: did not physically restrain her. [00:13:55] Speaker 02: Under this court's case law, he otherwise used the gun. [00:13:57] Speaker 02: And he is being punished for that. [00:13:58] Speaker 00: Well, he made sure that she was doing exactly what he told her to as he moved the gun as she moved. [00:14:05] Speaker 00: And that seems to fit the language that I was quoting from Sakura. [00:14:10] Speaker 02: What this court said in Rucker in 1999, and the site for this is going to be 178 F. [00:14:17] Speaker 02: 3rd at 1371, that otherwise using a gun [00:14:22] Speaker 02: is when a defendant points a gun, specifically points a gun at a victim, and orders compliance with demands. [00:14:29] Speaker 02: That is precisely what Mr. Vargas did in this case, and he did not do the something more that this court requires. [00:14:39] Speaker 01: Judge Rafi? [00:14:41] Speaker 02: I have one question for you. [00:14:43] Speaker 02: You talk about Taylor, the Second Circuit decision, and Taylor in your brief. [00:14:46] Speaker 02: What are we supposed to do with that? [00:14:47] Speaker 02: It's not consistent with our case law, you agree? [00:14:51] Speaker 02: It is. [00:14:52] Speaker 02: a more refined approach to the physical restraint enhancement. [00:14:55] Speaker 02: It specifically distinguishes our case law as different. [00:15:01] Speaker 02: I'm about to go over, can I answer the question? [00:15:03] Speaker 02: Yes, you may. [00:15:04] Speaker 02: I would say that MIERA is not breaking any new ground, Your Honors. [00:15:09] Speaker 02: So we can sort of put Taylor's treatment of MIERA to the side and say we have Fisher and Chacora and Pearson and those are very broadly construed and while the Second Circuit [00:15:21] Speaker 02: thinks Miera is a step too far, that is a very fact-specific use of the case law. [00:15:27] Speaker 02: And really, Taylor could be used as a guidepost for this court on how to refine and clarify a pretty much boundless reading of the physical restraint enhancement as it stands. [00:15:36] Speaker 02: Thank you. [00:15:37] Speaker 02: Thank you. [00:15:41] Speaker 02: Mr. Maham. [00:15:59] Speaker 03: Morning, Your Honors, and may it please the Court. [00:16:01] Speaker 03: Rajiv Mohan for the United States. [00:16:03] Speaker 03: It sounds like we all agree that the enhancement requires forcible restraint. [00:16:07] Speaker 03: And it sounds like the dispute is more about the restraint side of things, whether there was something more to show that the victims were restrained as a result of Mr. Vargas' conduct. [00:16:18] Speaker 03: And I'd first like to provide just a little bit of legal context to that before I cite the specific facts in each robbery, which we believe constitute the something more. [00:16:28] Speaker 03: And you heard a lot about the relationship between physical restraint and otherwise used. [00:16:33] Speaker 03: And this court squarely addressed that issue in Rucker, holding that there was no impermissible double counting in applying both enhancements. [00:16:43] Speaker 03: And I think the important point from that opinion is that the court recognized, and this is at page 1371 of the opinion, that the multiple enhancement of a sentence for a single type of conduct does not without more amount to double count [00:16:58] Speaker 03: So the implication that if the conduct here qualifies for the brandishing enhancement or the otherwise use enhancement, it cannot also qualify for the physical restraint enhancement is, I think, wrong. [00:17:12] Speaker 03: The test for double counting is whether the provisions necessarily overlap or indistinct and serve identical purposes. [00:17:21] Speaker 03: So I think the conduct can satisfy both enhancements and still count as physical restraint. [00:17:29] Speaker 03: and addressing the something more in each robbery. [00:17:32] Speaker 03: Let me start with the DSW robbery, because there, as the court has recognized, Mr. Vargas first pointed the revolver at the victim when he slammed it on the counter, and he then forced her to pick up the boxes and kept the gun pointed at her while she did so. [00:17:47] Speaker 03: And what I think is important about the second aspect of that is that when she went to pick up the boxes, she was moving in [00:17:55] Speaker 03: the direction of the only way out of the register. [00:17:58] Speaker 03: And there's really no reason for Mr. Vargas to keep the gun pointed at her, except to ensure that she did not try and make a break for it or otherwise interfere with the commission of the offense and that she did nothing more than pick up the boxes. [00:18:12] Speaker 01: Why isn't his conduct at most intimidation in that setting? [00:18:16] Speaker 03: Your Honor, I think it is the forcible denial of the freedom of movement. [00:18:21] Speaker 03: So she was, it was not just sort of, [00:18:24] Speaker 03: I think with the only intimidation of Mr. Vargas, they walked into the store, brandished the gun and started taking shoes, shoe boxes off the racks. [00:18:33] Speaker 03: I think he did more to ensure that the victim was under control so that he could get the shoe boxes that fell off on the ground and get away with them. [00:18:44] Speaker 03: And I think that is illustrated by the initial pointing which hemmed her in the space of the register and the subsequent [00:18:50] Speaker 03: command to pick up the boxes, which further ensured that she stayed there and did his bidding. [00:18:57] Speaker 01: Is it the government's position, or I guess a better way to ask this question might be, is it your understanding of the appellant's argument that there is not a challenge to, a factual challenge to the pointing, that the appellant is not suggesting that there is clear error in finding that there was pointing in the DSW rubber [00:19:18] Speaker 03: That is my understanding. [00:19:20] Speaker 03: The district court made that finding. [00:19:21] Speaker 03: It also adopted the finding in the pre-sentence report to that effect. [00:19:25] Speaker 03: And there was also no objection to that finding below. [00:19:27] Speaker 03: So I think there has not been. [00:19:28] Speaker 02: So is it the government's position that that is undisputed for purposes of our review of the application of the enhancement? [00:19:34] Speaker 02: It is. [00:19:36] Speaker 03: And turning to the footlocker robbery, I was. [00:19:38] Speaker 00: Wait a minute. [00:19:39] Speaker 00: Before you leave. [00:19:39] Speaker 00: Sure. [00:19:41] Speaker 00: What is the evidentiary basis [00:19:45] Speaker 00: for your outline for us, the layout of the counter and everything at DSW. [00:19:50] Speaker 00: I have to take out of my mind, I've stood in that line there and a lot of stores are laid out the same. [00:19:57] Speaker 00: What is there in the evidence in this case that shows that her only way out was that back door? [00:20:05] Speaker 03: So that would be government exhibit 4C, which we conventionally submitted. [00:20:09] Speaker 03: It is a video of the robbery sort of from [00:20:12] Speaker 03: behind the register and you can basically see everything there. [00:20:15] Speaker 03: You can see the layout of the register, you can see the revolver on the counter, Mr. Vargas waving it and all of that. [00:20:21] Speaker 00: Your viewing of that video, does it suggest, as you have suggested, that as the cashier is moving to pick up boxes, she's moving in the direction of the door, at least horizontally along that counter. [00:20:42] Speaker 00: And the gun on the counter is following her as she moves in that direction. [00:20:51] Speaker 03: Yes. [00:20:51] Speaker 03: And it's not so much a door as just there are three sides of the register and the fourth side is open. [00:20:56] Speaker 03: So that is the only way out. [00:20:58] Speaker 03: And my recollection of the video is that Mr. Vargas picks the gun up off the counter, sort of waves her in the direction of picking up the boxes and sort of slides it across the counter. [00:21:10] Speaker 03: so that it stays pointed at her as she moves to the side. [00:21:13] Speaker 03: And keeps his hand on the gun? [00:21:15] Speaker 03: Yes. [00:21:16] Speaker 03: He does take his hand off briefly before all of that, but I think apart from that, his hand is on the gun at all times. [00:21:23] Speaker 03: But then he returns his hand to the gun and moves it? [00:21:26] Speaker 03: Correct. [00:21:29] Speaker 03: Turning to the Footlocker robbery, I would cite four circumstances that show that the victims there too were restrained. [00:21:37] Speaker 03: First, Mr. Vargas approached the victims and brandished the firearm in close proximity to them. [00:21:44] Speaker 03: Second, he made the revolver click, which emphasized to the victims both that the firearm was present and that it was real. [00:21:54] Speaker 03: Third, he issued verbal commands, which conveyed a message not to interfere. [00:21:58] Speaker 03: First, he said, you're going to have to let us take everything. [00:22:01] Speaker 03: And he later said, go stand back there with your hands up. [00:22:05] Speaker 03: And that is at page 798 of volume two of the supplemental record on appeal. [00:22:11] Speaker 03: And fourth, he forced the victims to drop what was in their hands, which was a further exercise of his control over their freedom of movement. [00:22:21] Speaker 00: Now, I'd like to just- Did he ever point the gun at any victim? [00:22:27] Speaker 03: Not in the footlocker robbery. [00:22:30] Speaker 03: But I think MIRA makes clear that while individual targeting with a gun is sufficient in most cases, I think it specifically explains that it is not necessary. [00:22:41] Speaker 03: And I would submit that Mr. Vargas brandishing the firearm, even if it was not pointed at the victims, just feet away from them, was in fact more targeted than the sort of aimless waving that was at issue in MIRA. [00:22:54] Speaker 01: That's a very fine line for us to draw though, sorry. [00:22:58] Speaker 00: Okay, he didn't point the gun. [00:23:01] Speaker 00: What precisely did he say? [00:23:04] Speaker 03: So he initially said, you're going to have to let us take everything. [00:23:09] Speaker 03: He didn't yell out freeze or anything. [00:23:12] Speaker 03: He did not, but he did later say in the course of the back and forth, go stand back there with your hands up. [00:23:18] Speaker 03: And I think the message of those words was don't make a move to interfere. [00:23:23] Speaker 03: And I think the victims got that. [00:23:25] Speaker 00: Do we have audio on the video? [00:23:28] Speaker 03: You do not have audio on the video. [00:23:30] Speaker 03: You have the testimony from one of the employees who testified to the conversation. [00:23:35] Speaker 00: And the testimony of the witness, I know this is not outcome determinative necessarily, but was not particularly concerned about their life. [00:23:59] Speaker 03: Correct? [00:24:00] Speaker 03: I would disagree with that. [00:24:01] Speaker 03: I think the victim testified that Mr. Vargas was somewhat apologetic. [00:24:06] Speaker 03: I think it's fair to say he was not as menacing as other robbers, but I think there was still testimony from the victim that he was afraid and he stood back and did not interfere because Mr. Vargas had the gun. [00:24:22] Speaker 03: And I think that qualifies as restrained under this court. [00:24:25] Speaker 00: Is this first case you've ever had where the [00:24:28] Speaker 00: a robber apologized? [00:24:31] Speaker 03: I think so. [00:24:34] Speaker 03: But, you know, as I think the victim in the DSW robbery emphasized, you know, it's not really an apology when a large silver revolver is pointed at you. [00:24:45] Speaker 03: And so I don't think his apology takes away from the restraining effect of his conduct. [00:24:50] Speaker 00: But there was no large silver revolver pointed at him in the footlocker. [00:24:55] Speaker 03: Well, there was a large silver revolver pointed [00:24:58] Speaker 03: Well, it was, okay, in the footlocker, excuse me. [00:25:00] Speaker 00: Well, wait a minute. [00:25:02] Speaker 03: It was not pointed at. [00:25:03] Speaker 03: Correct. [00:25:03] Speaker 03: In the footlocker robbery, it was not pointed. [00:25:05] Speaker 03: Was it ever revealed? [00:25:07] Speaker 03: It was. [00:25:07] Speaker 03: He was holding it out in front, so it was visible to the victim. [00:25:12] Speaker 03: And we have the video of this too. [00:25:13] Speaker 00: Yes, and this is government exhibit. [00:25:14] Speaker 00: Can we see a shiny silver thing that he's holding down? [00:25:19] Speaker 00: Yes. [00:25:21] Speaker 02: Okay. [00:25:21] Speaker 02: I wanted to ask you a question about [00:25:24] Speaker 02: sort of the government's understanding of how we're supposed to be thinking about victim conduct and applying this enhancement. [00:25:30] Speaker 01: So, you know, typically enhancements are intended to enhance the defendant's sentence because of their conduct. [00:25:37] Speaker 02: So a lot of your arguments, at least in the briefing, particularly about the footlocker robbery, turn on what the victims did. [00:25:46] Speaker 02: So could you speak to that? [00:25:47] Speaker 02: To what extent we're supposed to look at victim conduct in applying the enhancement? [00:25:50] Speaker 03: Sure. [00:25:51] Speaker 03: And I think that it is true that it is the defendant's conduct that must restrain. [00:25:56] Speaker 03: But I think the text of the enhancement in asking whether a person was physically restrained necessarily requires consideration of that person's position and whether they were in a position where their freedom of movement was compromised. [00:26:10] Speaker 03: And I think that's why this court [00:26:12] Speaker 03: in MIRA considered whether a reasonable person would have felt restrained under the circumstances. [00:26:17] Speaker 03: So I think the victim's responses are certainly indicative of whether a restraint was imposed. [00:26:26] Speaker 03: And a couple of points I would highlight from the footlocker robbery is that the testimony was that the female victim was on her way back to the stock room to pick up some shoes in another size. [00:26:40] Speaker 03: when Mr. Vargas approached and pulled out the revolver. [00:26:43] Speaker 03: She obviously did not make it back to the stock room. [00:26:46] Speaker 03: And I think that is an illustration of how her movement was interfered with. [00:26:50] Speaker 03: She was prevented from going where she was otherwise going as a result of Mr. Vargas' conduct. [00:26:58] Speaker 03: I'd like to briefly address these questions about the breadth of our interpretation and what I would more accurately describe as this court's interpretation. [00:27:08] Speaker 03: What you heard Mr. Vargas urge this panel to do is really walk away and conflict with prior precedent in this circuit. [00:27:18] Speaker 03: I think the dividing line between this circuit and say the Second Circuit is that in the Second Circuit, restraint by means of a firearm is insufficient because in that court's view, any restraint is the product of the victim's sort of psychological response, whereas this court has rejected that. [00:27:38] Speaker 03: I think it is clear from Fisher and cases after that restraint by means of a firearm is sufficient. [00:27:44] Speaker 03: So I think that all of Mr. Vargas' arguments directed to the form of restraint are really beside the point here. [00:27:50] Speaker 03: And the question is whether there was something more to show that the victims were restrained. [00:27:55] Speaker 03: And we believe that was the case. [00:27:57] Speaker 03: And if there are no further questions, yes. [00:28:01] Speaker 02: Would you agree that the factual basis for the DSW [00:28:05] Speaker 02: robbery and the footlocker robbery are different. [00:28:08] Speaker 02: The factual basis to support the enhancement. [00:28:11] Speaker 02: The facts are different in those two robberies. [00:28:12] Speaker 02: Would you agree? [00:28:13] Speaker 02: Yes. [00:28:14] Speaker 02: Okay. [00:28:15] Speaker 02: And would you also agree that the DSW robbery might present a stronger case for the government? [00:28:20] Speaker 03: I think that's a fair characterization. [00:28:21] Speaker 02: And if that is true, why? [00:28:23] Speaker 02: Why is that so? [00:28:23] Speaker 02: What is missing in the footlocker robbery that you think makes the DSW robbery [00:28:29] Speaker 02: a stronger predicate for the application of the enhancement. [00:28:32] Speaker 03: I think the pointing is a significant thing. [00:28:34] Speaker 03: I think this court in MIRA recognized that even aimless waving would in all likelihood restrain everyone present. [00:28:41] Speaker 03: And in footnote four, the court observed that insofar as the gun was pointed at anyone, those persons would have felt particularly physically restrained. [00:28:49] Speaker 03: So I think it's fair to say that the victim in the DSW robbery was particularly physically restrained, and the victims in the footlocker robbery were also physically restrained. [00:28:59] Speaker 03: Thank you. [00:29:00] Speaker 02: Thank you, Council. [00:29:03] Speaker 02: Is there any time left? [00:29:05] Speaker 01: Thank you for your helpful arguments. [00:29:07] Speaker 01: The case will be submitted.