United States v. Ziesel, No. 20-4240 (6th Cir. 2022)
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Ziesel entered a bank wearing a mask and a hooded sweatshirt, approached the tellers, and said “give me all the money.” At some point, Ziesel told the tellers that “no one was going to get hurt.” Before leaving with the money, Ziesel told the tellers to get on the floor. Ziesel did not have a weapon, nor did he imply he had a weapon. Ziesel pleaded guilty to bank robbery, 18 U.S.C. 2113(a). The PSR recommended a two-level enhancement for “physical restraint” under USSG 2B3.1(b)(4)(B), resulting in an imprisonment range of 46-57 months. Without that enhancement, the range would have been 37-46 months.
The judge noted that application of the enhancement was “a close question” but overruled Ziesel’s objection, stating: the simple communication “This is a bank robbery” connotes a certain degree of potential harm, whether a weapon is shown or not, and certainly, control is exercised by the robber ... when you are standing upright, and then to be told to go into prone position by somebody who appears able to exercise substantial force over you …. They believed that you posed a clear and present danger. The Sixth Circuit reversed Ziesel’s 46-month sentence. Neither the plain language of the Guidelines nor precedent supports application of the enhancement under thesed facts.
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