                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-29-1999

USA v. Copenhaver
Precedential or Non-Precedential:

Docket 98-1305,98-1306




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Recommended Citation
"USA v. Copenhaver" (1999). 1999 Decisions. Paper 218.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/218


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Filed July 29, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 98-1305 and 98-1306

UNITED STATES OF AMERICA

v.

BRIAN COPENHAVER,
       Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Nos. 97-cr-00555-1, 97-cr-00556-1)
District Judge: Hon. Eduardo C. Robreno

Submitted Under Third Circuit LAR 34.1(a)
July 26, 1999

Before: SLOVITER, NYGAARD and McKEE,
Circuit Judges

(Filed: July 29, 1999)

       James J. Eisenhower, III
       Montgomery, McCracken, Walker
        & Rhoads
       Philadelphia, PA 19109

        Attorney for Appellant

       Emily McKillip
       Office of U.S. Attorney
       Philadelphia, PA 19106

        Attorney for Appellee
OPINION OF THE COURT

SLOVITER, Circuit Judge.

Brian Copenhaver, who was convicted of violating 18
U.S.C. S 1951 (interference with commerce by robbery) and
18 U.S.C. S 2113(d) (armed bank robbery), appeals from the
judgment of conviction and sentence, limiting his appeal to
the District Court's imposition of the two-point offense level
enhancement for physical restraint of the victim. Although
this issue has been considered by other courts of appeals,
it is one of first impression in this circuit.

I.

FACTS AND PROCEDURAL HISTORY

On April 13, 1997, at approximately 2:00 a.m.,
Copenhaver and co-defendant James Keplinger robbed the
Historic Strasburg Inn in Strasburg, Pennsylvania. Night
auditor Thomas Helwig was in the inn lobby. Copenhaver
pointed what appeared to be an automatic pistol at Helwig
and stated, "your luck has just run out, faggot." App. at 41.
The weapon was actually a BB gun, but that fact is not
significant for our purposes. Copenhaver jumped over the
counter and struck Helwig on the head with the pistol,
which caused a laceration on the top of Helwig's scalp.
Copenhaver told Helwig to go into the adjoining office area
and kneel down by the photocopy machine. Copenhaver
then tried to open the cash register but after he was unable
to do so, he and Keplinger forced Helwig to open the cash
register. The robbers obtained $435 from the cash register
and another $150 from a money bag behind the Inn's bar.
They then forced Helwig into another office, and, according
to the presentence investigation report which provides the
only basis for the relevant factual record, "put him in the
fireplace and placed the fire screen across it." During the
course of the robbery, Copenhaver repeatedly threatened
Helwig, using terms such as "I want to waste you, faggot,"
and "I'm going to waste you faggot." App. at 42. Helwig

                               2
remained in the fireplace for fifteen to thirty minutes after
the robbers left and then called the police.

Less than a month later, on May 9, 1997, Copenhaver,
Keplinger, and another man drove in a stolen vehicle to the
Farmers' First Bank, a federally-insured financial
institution located in Peach Bottom, Pennsylvania.
Copenhaver, dressed in a costume intended to resemble the
clothing worn by Amish men, entered the bank carrying
what appeared to the bank employees to be a
semiautomatic pistol but which was actually his BB gun.
Copenhaver instructed those present to put their hands up
and told the tellers to give him all the money. As
Copenhaver was leaving the bank, he dropped some of the
money on the floor of the bank. Copenhaver left with a total
of $8,817 in cash.

Copenhaver was indicted by a federal grand jury on four
counts arising from the robbery of the Farmers' First Bank:
conspiracy to commit armed bank robbery in violation of 18
U.S.C. S 371, armed bank robbery in violation of 18 U.S.C.
S 2113(d), possession of a stolen vehicle that had crossed
state lines after being stolen in violation of 18 U.S.C.
S 2313, and aiding and abetting in violation of 18 U.S.C.
S 2. On the same day, the grand jury returned another
indictment charging Copenhaver with interference with
commerce by robbery in violation of 18 U.S.C. S 1951,
arising from the robbery of the Historic Strasburg Inn. The
two prosecutions were consolidated for plea and sentencing.

Pursuant to a plea agreement with the government,
Copenhaver pled guilty to one count of interference with
interstate commerce by robbery and one count of armed
bank robbery. In exchange for those pleas of guilty, the
government sought and obtained dismissal of the
conspiracy and possession of stolen vehicle charges. In
their negotiations with respect to the applicable sentencing
guidelines, Copenhaver and the government disagreed on
the applicability of the two-level enhancement for "physical
restraint" provided in U.S.S.G. S 2B3.1(b)(4)(B) in
connection with the robbery of the Historic Strasburg Inn.
The Probation Officer issued a revised presentence report
that recommended such enhancement.

                               3
The District Court held a sentencing hearing at which the
principal contested issue was whether Copenhaver had
"physically restrained" a victim within the meaning of the
Sentencing Guidelines during the robbery of the Historic
Strasburg Inn. After discussing various cases from other
circuits the District Court stated:

       So while the Third Circuit has not squarely addressed
       the two-point enhancement, there is ample authority
       and all going in one direction which would hold that
       the enhancement is appropriate in this case, where the
       defendant and his co-defendant . . . were armed with a
       BB gun and that it appeared to be a semiautomatic
       pistol when they robbed the inn and where the victim
       was struck with a gun, was forced to his knees, made
       to crouch in the fireplace and then placed thefireplace
       screen -- and where the fireplace screen was placed
       across the opening.

       These actions clearly qualify as a physical restraint of
       the victim and for that reason, the enhancement is
       appropriate.

App. at 111-12.

The District Court therefore applied the two-level
enhancement for "physical restraint" of the victim. This
resulted in an adjusted offense level of 27 which, when
combined with Copenhaver's criminal history, led to a
guidelines range of 120 to 150 months imprisonment. The
District Court sentenced Copenhaver to 120 months
imprisonment, five years of supervised release, and a
special assessment of $200. Copenhaver timely appealed
the sentence.

II.

DISCUSSION

The sole issue on appeal is whether Copenhaver's actions
during the Historic Strasburg Inn robbery constitute
"physical restraint" within the meaning of the Sentencing
Guidelines. We have not addressed this issue. We therefore
review the decisions of other courts of appeals that have

                                4
considered the scope of "physical restraint" in analogous
situations.

Section 2B3.1(b)(4)(B) of the Sentencing Guidelines
provides for a two-level increase "if any person was
physically restrained to facilitate commission of the
offense." Section 1B1.1, to which application note 1 of
section 2B3.1 refers, provides that "physically restrained
means the forcible restraint of the victim such as by being
tied, bound or locked up."

Cases have generally held that "[p]hysical restraint" is not
limited to the examples listed in the guidelines. As one
court explained, "[t]he use of the modifier`such as' in the
definition indicates that the illustration of the`physical
restraint' are listed by way of example rather than
limitation." United States v. Jones, 32 F.3d 1512, 1518
(11th Cir. 1994) (internal quotation marks omitted); see
also United States v. Rosario, 7 F.3d 319, 320-21 (2nd Cir.
1993); United States v. Doubet, 969 F.2d 341, 346 (7th Cir.
1992); United States v. Stokely, 881 F.2d 114, 116 (4th Cir.
1989).

Enhancement for "physical restraint" has been held
applicable when the defendant "creates circumstances
allowing the persons no alternative but compliance." United
States v. Kirtley, 986 F.2d 285, 286 (8th Cir. 1993); see
also United States v. Thompson, 109 F.3d 639, 641 (9th Cir.
1997); Jones, 32 F.2d at 1519; Doubet, 969 F.2d at 347. A
defendant "physically restrains" his victims if he uses force
to impede others from interfering with the commission of
the offense. See United States v. Fisher, 132 F.3d 1327,
1329 (10th Cir. 1997); Rosario, 7 F.3d at 321; Doubet, 969
F.2d at 347.

The Doubet case provides a close factual parallel to the
case at bar. In Doubet, the defendant herded victims into
an unlocked restroom in the back of a bank while pointing
a sawed off shotgun at them, yelling death threats, and
admonishing that an armed accomplice stood guard
(although there was no actual accomplice). 969 F.2d at
347. The district court applied the physical restraint
enhancement, and the Court of Appeals for the Seventh
Circuit affirmed, noting that the purpose of the

                               5
enhancement is to punish criminals who use physical
restraint to "facilitate the commission of the offense." Id. at
346. The court opined that "force" is not limited to physical
force and may encompass other circumstances that permit
no alternative to compliance. Id. at 347. Although the court
mentioned that herding victims into a defined area does not
necessarily constitute "physical restraint," it nevertheless
held that the victims in that case were for all intents and
purposes confined to the restroom, albeit unlocked,
because the "illusory accomplice," along with the
defendant's actions, "served as a figurative lock and key
sufficient to constitute a physical restraint which facilitated
the commission of the offense." Id.

In Kirtley, the Court of Appeals for the Eighth Circuit
held that a defendant who entered a bank displaying a gun
and ordered the tellers to bind themselves with materials
he provided had physically restrained them. 986 F.2d at
285. The court rejected the contention that the tellers were
not physically restrained because they were able to free
themselves after the defendant left the bank. Id. at 285.

The majority of jurisdictions that have addressed this
issue have employed similar reasoning. For example, in
Jones the court held "physical restraint" was present when
armed robbers, in order to facilitate the robbery, forced
persons in a credit union into the safe room and ordered
them to lie face down, thereby restricting the victims'
mobility and capacity to observe events. 32 F.3d at 1512,
1519. Similarly, in United States v. Schau, 1 F.3d 729, 730
(8th Cir. 1993), the court held that armed defendants who
ordered their victims into a bank vault had restrained their
victims for purposes of U.S.S.G. S 2B3.1(b)(4)(B), even
though the defendants were unable to lock the vault's door.
Presented with somewhat different facts, the court in United
States v. Foppe, 993 F.2d 1444, 1452 (9th Cir. 1993), held
that a defendant who pointed a weapon (later found to be
a hairbrush) and who ordered his victims to move about
had physically restrained them. See also Fisher, 132 F.3d
at 1327 (physical restraint occurred when one defendant
"kept the security guard at bay by pointing gun at his head
while two others looted the teller counter"); Robinson, 20
F.3d 270, 279 (spraying of mace effected physical restraint

                               6
because it impeded the victim's movement and prevented
the victim from chasing after the robber); Rosario, 7 F.3d
319, 320-321 (enhancement applied to a defendant who
stood on victim's neck to facilitate robbery).

Copenhaver argues that the two-level enhancement is not
applicable because the Guidelines' definition of"physically
restrained" requires an exertion of physical force upon the
victim. He relies on United States v. Anglin, 169 F.3d 154
(2nd Cir. 1999), a recent opinion of the Court of Appeals for
the Second Circuit, decided after the District Court issued
its ruling on this issue. In Anglin, the defendant bank
robber brandished a gun and ordered the bank tellers to
get down on the floor and not to move. The appellate court
held that "displaying a gun and telling people to get down
and not move, without more, is insufficient to trigger the
`physical restraint' enhancement." Id. at 164. The court
stated that "[s]uch conduct is materially different from the
Guidelines examples, each of which involves a restraint of
movement by use of some artifact by which the victim is
`tied' or `bound' . . . or by the use of a space where the
victim is `locked up,' as in the cited cases from other
circuits." Id. The court also stated that the Application Note
examples, although not imposing limitations upon the
phrase "physical restraint", are intended as meaningful
signposts on the way to understanding the Sentencing
Commission's enhancement purpose. Id.

In this respect, the Anglin court differed from the decision
of the Court of Appeals for the Ninth Circuit in Thompson,
which held that a defendant who had ordered his victim to
move about in a certain direction had physically restrained
the victim. See 109 F.3d at 641. The Thompson court
stated, "[w]hen a dangerous weapon is used to force a
person to move about, that person has been physically
restrained just as surely as if he was grabbed by the collar
and pulled along. In fact, he may be even more restrained."
Id. at 641.

Copenhaver not unexpectedly sides with Anglin. He
argues that his actions directing Helwig to stand in the
fireplace are not within the scope of the physical restraint
enhancement because the victim was not "tied," "bound," or
"locked up" but was merely placed behind an easily

                                7
moveable and see-through fireplace screen. He argues that
although Helwig remained in the fireplace forfifteen to
thirty minutes after he and his confederate left, Helwig did
so solely based on fear.

We need not choose in this case between the position of
Thompson that forcing some action at the point of a gun
constitutes physical restraint under the Guideline and that
in Anglin holding to the contrary. Here, Copenhaver did
more than merely order Helwig to stand still, kneel or lie
down. He not only forced him into another office but put
him into the fireplace and placed the fire screen across it,
thereby confining his victim in a manner comparable to the
example given in Anglin of "lock[ing] up" the victim.

Copenhaver, noting that the presentence report does not
actually state that he made Helwig move at gunpoint from
one location of the Inn to another or that he uttered any
threats at the time when he ordered Helwig into the
fireplace, argues there was no basis to find the required
physical restraint. We are not persuaded. No actual
touching is required to effect physical restraint. See, e.g.,
Thompson, 109 F.3d at 641(noting that the example "locked
up" in the application note supports the notion that no
touching is required); Doubet, 969 F.2d at 347 (" `Force' is
not limited to physical force, but may also encompass the
operation of circumstances that permit no alternative to
compliance." (internal quotation marks omitted)).

Whether or not Copenhaver threatened Helwig at the
moment he "forced" him into the other office, he had
previously displayed a gun and repeatedly uttered phrases
such as "I want to waste you faggot." The use of the
unchallenged word "forced" in the presentence report
connotes physical restraint. Most significantly, Copenhaver
placed a screen in front of the fireplace. There was no
reason to do so other than to signify his intention to impede
Helwig from intervening with the commission of the crime
and deter his prompt call for help. For all intents and
purposes, Helwig was confined to the fireplace and had no
alternative but compliance.

The size of the fireplace, the opacity of the screen, and
the weight of the screen - all matters that are not of record

                               8
- are not dispositive. Although it is of record that the screen
was easily removable, the fact that a barrier was not
impenetrable does not negate physical restraint. In Doubet,
the restroom in which the victims were placed was
unlocked, see Doubet, 969 F.2d at 346, in Jones the
saferoom of the credit union where the employees and
customers were told to lie down was unlocked, 32 F.3d at
519, and in Kirtley, even though the tellers' feet were tied,
the tellers were easily able to unfasten their bonds. It is the
perpetrator's act of enclosing or confining the victim in a
space or with a barrier, actual or threatened, that
constitutes the action meriting enhancement of the offense
level. There was ample basis for the District Court to find
that occurred in this case. Therefore, Copenhaver
"physically restrained" his victim, and the enhancement
was warranted.

III.

CONCLUSION

For the foregoing reasons, we will affirm the judgment of
sentence, which includes the two-level enhancement for
"physical restraint" of the victim.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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