Pop quiz: Which of the following qualifies as a physical restraint during a bank robbery?
(A) Rope (B) Duct tape (C) Gun (D) All of the above.
According to the Fourth Circuit Court of Appeals, the answer is D.
Elianer Dimache and an accomplice robbed the First Palmetto Savings Bank in Myrtle Beach, S.C. in 2008. Dimache pulled a gun on the bank teller when demanding money, and pointed the gun at two other bank tellers when telling them to get down on the floor.
Dimache warned the tellers to be quiet, saying if they were not, “you know what will happen.”
Dimache pleaded guilty to armed bank robbery. The district court slapped him with three sentence enhancements, including a two-level enhancement for physically restraining the tellers because Dimache “used a firearm to threaten the victim tellers and force them to lie on the ground, thereby restraining their movements.”
The court found that a “gun is … just as effective, if not more effective, in restraining [victims] as duct tape or some kind of twine or rope.” (Sidebar: Not quite. People restrained only by threat of bullets, occasionally tackle gunmen.)
Dimache appealed the sentence enhancement.
Under the Sentencing Guidelines, “physically restrained” is defined as “the forcible restraint of the victim such as by being tied, bound, or locked up.” Clearly, this is a non-exhaustive list. The Fourth Circuit Court of Appeals, relying on its own opinion in U.S. v. Wilson, found that the sentence was not procedurally or substantively unreasonable, and upheld the physical restraint sentence enhancement.
We disagree with the Fourth Circuit for two reasons.
First, bank robbery carries a maximum prison term of 20 years, while armed bank robbery carries a maximum prison term of 25 years. Federal law already builds in a sentence enhancement for using a gun to rob a bank.
Second, Wilson was a carjacking case. Carjacking generally carries a prison term up to 15 years; the sentence can be as long as 25 years in cases involving serious bodily injury, and even death if the crime causes the victim’s death. The carjacking statute does not, however, provide a separate “armed carjacking” penalty like the bank robbery statute.
In light of these distinctions, Dimache’s sentence seems unreasonable.
Regardless of our opinion, you should be aware that the Fourth Circuit Court of Appeals will uphold a physical restraint sentence enhancement for threatening a victim with a gun, and weigh that information when negotiating a plea bargain for your client.
- U.S. v. Dimache (FindLaw’s CaseLaw)
- Repeat Offenders’ Sentences Remanded in Response to Simmons (FindLaw’s Fourth Circuit blog)
- 4th Circuit Overturns Armed Career Criminal Sentence Enhancement (FindLaw’s Fourth Circuit blog)