United States v. Herman, No. 18-3057 (7th Cir. 2019)Annotate this Case
Arriving at Kirk’s house, Kirk and Herman saw that Kirk's mother, Daniels, had a Jimenez Arms handgun tucked into her purse. She allowed Herman to handle the gun. Herman pulled out a revolver and said, “stay seated. I don’t want to blow you guys back, but I will if I have to,” then ran outside. Kirk and Daniels pursued him. Herman spun around, with a gun in each hand, and fired a shot that flew past Daniels’s head. Herman pled guilty as a felon in possession of a firearm, 18 U.S.C. 922(g). On remand, the court adopted the version of events set forth in the PSR, to add two offense levels because Herman “physically restrained” his victims, U.S.S.G. 2B3.1(b)(4)(B); seven levels because a firearm was discharged; and one level because a firearm was taken. It subtracted three levels for acceptance of responsibility and calculated a recommended guidelines range of 120-150 months. The court imposed the statutory maximum sentence of 120 months.
The Seventh Circuit vacated, agreeing with the circuits that have found that more than pointing a gun at someone and ordering that person not to move is necessary for the application of section 2B3.1(b)(4)(B). The court “disapproved” prior holdings that allowed for the application of the enhancement based solely on psychological coercion, including the coercion of being held at gunpoint. The court requested the Clerk of Court to send the opinion to the U.S. Sentencing Commission for consideration.