To Move or Not to Move? That Is the Metaphysical Question

Philosophers have long pondered the metaphysical meaning of an object’s “location” or the “where of a thing.” For example, Aristotle considered location as one of the ten aspects of an object’s being.33

However, debating the definition of location is not solely within the domain of philosophers—location is often an important factor in the law. For crimes in which a change in location is a necessary element, courts must use and apply a definition of location. This definition, when applied, often serves a significant purpose. If a kidnapping conviction requires a change in location, could this change in location requirement be met by movement within state lines? Within a city block? Within a building? Within a room?44 If distance is not the determining factor in defining a change in location, what factor or factors should be used in its place? Should the type of forced movement matter?

Developing a precise definition of location is particularly important for courts in determining when to apply abduction related enhancements under the United States Sentencing Guidelines (USSG). These abduction enhancements, which apply when sentencing offenders convicted of robbery or sexual abuse, apply only when the offender forces the victim to change location.55

As such, the definition of location that courts use can determine whether an abduction enhancement is applied to an offender’s sentence. Recently a circuit split has arisen as to how location should be defined and applied in robbery cases.66 As a result of these differing definitions of location, some circuits have held that the robbery abduction enhancement applies to forced movement within a room or building, while other circuits have reached different conclusions.77

This Comment analyzes how location and forced movement are defined under robbery abduction enhancement provisions within the Guidelines. This Comment proceeds in three parts. Part I provides an introduction to the Sentencing Reform Act88

(SRA) and a cursory glance at the robbery abduction enhancement. Part II defines the circuit split and surveys the different approaches used by the circuits. Part III proposes a two-part balancing test that resolves the circuit split. The proposed balancing test weighs both the dangerousness of the forced movement and whether the forced movement occurred over a substantial distance. This balancing test also maintains the distinction between sentencing enhancements for robbery crimes involving abduction and physical restraint, and it provides courts with a practical test rooted in sexual assault and kidnapping case law.

This Part explains the background behind the SRA while also describing the robbery abduction enhancement that is reviewed in detail throughout this Comment. Part I.A describes the SRA, and Part I.B analyzes the robbery abduction enhancement.

Congress enacted the SRA as part of the broader Comprehensive Crime Control Act of 1984.99

This legislation created the United States Sentencing Commission, which in turn promulgates the Federal Sentencing Guidelines.1010 These Federal Sentencing Guidelines were created, in part, to fix pervasive “indeterminate sentencing,” which resulted in “criminal defendants fac[ing] starkly different levels of punishment depending on which judge happened to draw the case.”1111 With the goal of “minimiz[ing] the discretionary powers of the sentencing court,” Congress attempted to bring “honesty,” “uniformity,” and “proportionality” to sentencing by “balanc[ing] the comparative virtues and vices of broad, simple categorization and detailed, complex subcategorization.”1212 These structural changes aimed to “reduce crime through an effective, fair sentencing system.”1313

To determine the recommended sentence under the Guidelines, courts first determine the base offense level and then apply “any appropriate specific offense characteristics, cross references, and special instructions contained in the particular guideline.”1414

These sentencing modifications add or subtract levels from the base offense level associated with the criminal act.1515 Particularly, “specific offense characteristics” encompass factual patterns that, if applicable, increase or decrease the base offense level. The final offense level, combined with the offender’s “criminal history category,” determines the final sentencing range. For example, a four-level enhancement applied to an offender in the third criminal history category and an offense with a base level of nineteen would increase the sentencing recommendation under the Guidelines from between thirty-seven and forty-six months to between fifty-seven and seventy-one months.1616

Although the SRA was originally intended to be a mandatory restriction on judicial discretion, in 2005 the Supreme Court struck down the mandatory sentencing aspects of the Guidelines, essentially restricting the Guidelines to an advisory-only capacity.1717

Despite the nonbinding nature of the Guidelines, many sentences still fall within the recommended range.1818 For this reason, whether a special offense characteristic applies can often affect a sentence—adding or subtracting months or even years.

The Guidelines provide for a four-level sentencing enhancement during the sentencing phase of a robbery case “[i]f any person was abducted to facilitate commission of the offense or to facilitate escape”1919

and a two-level sentencing enhancement “if any person was physically restrained to facilitate commission of the offense or to facilitate escape.”2020 The four-level robbery abduction enhancement and the two-level physical restraint enhancement are separated by the word “or,”2121 thus implying that the enhancements apply to different behavior.2222

In regard to the four-level sentencing enhancement for an abduction committed during a robbery, the text of the Guidelines does not clarify what elements are required to establish an “abduct[ion].”2323

However, the commentary to the Guidelines notes that the physical restraint and abduction enhancements “provide[ ] an enhancement for robberies where a victim was forced to accompany the defendant to another location, or was physically restrained by being tied, bound, or locked up.”2424 This statement implies that the robbery abduction enhancement applies if the victim “was forced to accompany the defendant to another location,” while the physical restraint enhancement applies if the victim “was physically restrained by being tied, bound, or locked up.”2525 In fact, elsewhere, the Guidelines commentary describes “physically restrained” identically—as “whether the victim was physically restrained by being tied, bound, or locked up.”2626 It is important to note that, in clarifying how the physical restraint enhancement should be applied, the Guidelines commentary prefaces “tied, bound, or locked up” with the phrase “such as,”2727 implying that these characteristics are not exhaustive. The essential difference between the two enhancements is that, unlike the physical restraint enhancement, the robbery abduction enhancement requires forced movement to a different location. Although, as mentioned above, the two enhancements appear designed to address different behavior, they are not necessarily mutually exclusive because there are some circumstances in which physical restraint can occur during the process of an abduction.2828

The commentary in the application notes defines abduction by noting that “[a]bducted means that a victim was forced to accompany an offender to a different location.”2929

As an example, the commentary mentions that “a bank robber’s forcing a bank teller from the bank into a getaway car would constitute an abduction.”3030 Although it is difficult to point to one set of facts that would most clearly fall under the robbery abduction enhancement, forced movement occurring over a great distance is likely an obvious target of the enhancement.3131

Different circuits have reached differing conclusions as to when the robbery abduction enhancement under the Guidelines should be applied. These differences are most stark in cases that involve the forced movement of victims from one room or area to another room or area within the same building. The Tenth Circuit has described the differing approaches as a true “split of authority.”3232

Regardless of whether the differing analyses constitute a traditional circuit split, the various approaches lead to drastically divergent results when applied to similar fact patterns, as I describe below. Because questions concerning the abduction enhancement are pertinent in many robbery scenarios, and because the robbery abduction enhancement can add months or years to a sentence recommendation, the parameters and application of the robbery abduction enhancement are significant.

The divergent analyses stem from dissimilar interpretations of the phrase “different location.”3333

While the Third, Fourth, Fifth, and Tenth Circuits have all concluded that forced movement within a building or small area may fit the “different location” language used in the Guidelines commentary,3434 the Seventh, Eighth, and Eleventh Circuits have each applied a narrower conception of movement.3535

This Part describes the circuit split by discussing the different interpretations of the robbery abduction enhancement. Parts II.A, II.B, and II.C detail the varying approaches used by the various circuits. Part II.D then summarizes the flaws with each circuit’s approach.

The Fourth and Fifth Circuits have held that courts should interpret the phrase “different location” flexibly.3636

In practice, interpreting the Guidelines in a flexible manner favors the use of the robbery abduction enhancement because satisfying any one of several factors allows these circuits to apply the abduction enhancement. Consequently, this flexible interpretation has led the Fourth and Fifth Circuits to hold that the forced movement between different rooms or areas within the same building may constitute an abduction under the Guidelines.

In United States v Hawkins,3737

the Fifth Circuit provided and applied a flexible definition of location.3838 In Hawkins, the offender physically moved the victim “50 to 60” feet at gunpoint within the boundaries of a parking lot toward a getaway car.3939 While defining the phrase “different location” for purposes of the robbery abduction enhancement, the Hawkins Court endorsed the use of “multiple interpretations . . . applied case by case to the particular facts under scrutiny, not mechanically based on the presence or absence of doorways, lot lines, thresholds, and the like.”4040 Citing “ordinary parlance,” the court first determined that “‘location’ can refer to a point inside or outside a building or parking lot, so that a minuscule movement, such as the crossing of a threshold separating the interior and exterior of a building, would constitute movement to ‘a different location.’”4141 However, also citing “ordinary parlance,” the court concluded that “location” may instead be “used in reference to a single point where a person is standing, or to one among several rooms in the same structure, or to different floors in the same building.”4242 After acknowledging that both interpretations of “location” had merit, the Hawkins court held that courts applying the robbery abduction enhancement should define “location” based on the “particular facts under scrutiny” while also considering whether the offender crossed a threshold.4343

Although the threshold analysis permits courts to apply the robbery abduction enhancement in matters involving a relatively short distance if a threshold was crossed, defining “different location” according to “multiple interpretations”4444

allows courts to apply the robbery abduction enhancement to forced movement in almost any situation. The use of a precise or exacting definition of location can then cause courts to find that a change in location, and thus an abduction, has occurred even in situations involving short distances. For example, a court may determine that a change in location is defined as a change in position from a particular spatial point, which in turn allows that court to hold that virtually any forced movement meets the “different location” requirement for the robbery abduction enhancement.4545

The Fourth Circuit explicitly endorsed the flexible Hawkins analysis in United States v Osborne.4646

In Osborne, the court found that forced movement occurring within a Walgreens store could trigger the robbery abduction requirement because “the pharmacy section and the store area of the Walgreens building can be deemed to be discrete ‘locations.’”4747 In reaching this determination, the Osborne court looked to “ordinary parlance,” which the court determined would describe the “pharmacy section and the store area [as] ‘different locations’ within the Walgreens building.”4848 The court also noted “that the pharmacy section and the store area are divided by a counter, as well as a secured door.”4949 The analysis in Osborne applied the flexible and multiple interpretations approach proffered in Hawkins but contended that ordinary parlance and thresholds within the building were grounds for determining that a change in location occurred.5050

The Third and Tenth Circuits have established a three-part test to determine whether movement qualifies as an “abduction” for purposes of the Guidelines.5151

Unlike the Fourth and Fifth Circuits, the three-part test used by the Third and Tenth Circuits requires (1) forced movement, (2) accompaniment, and (3) an action in furtherance of the crime. Functionally, however, this three-part test operates almost identically to the flexible analysis used by the Fourth and Fifth Circuits. Indeed, the Third and Tenth Circuits have explicitly adopted the flexible approach.5252

The Third Circuit, in United States v Reynos,5353

looked to the text of the Guidelines and “distill[ed] three predicates that must be met before the abduction enhancement can be applied.”5454 To establish an abduction, the Third Circuit requires that

[f]irst, the robbery victims must be forced to move from their original position; such force being sufficient to permit a reasonable person an inference that he or she is not at liberty to refuse. Second, the victim must accompany the offender to that new location. Third, the relocation of the robbery victims must have been to further either the commission of the crime or the offender’s escape.5555

55

Id at 286–87.Hide

Although the Third Circuit cited the Guidelines in creating this three-part test, the court did not explain how it derived the individual components from the Guidelines.5656

The Reynos court’s application of the robbery abduction enhancement, given the facts of the case, demonstrates how the three-part test functions almost identically to the flexible analysis used by the Fourth and Fifth Circuits. In Reynos, the defendant forced store employees at gunpoint to move between thirty-four and thirty-nine feet from a bathroom to a cash register.5757

The bathroom in which the victims were located was locked and separated from the cash register by a corridor.5858 When applying the first part of the three-part test, the Reynos court determined that the victims were forced to move from their original position “[b]y virtue of [the bathroom’s] locked door, separate walls and distance from the cash register.”5959 This analysis echoes the flexible analysis the Osborne court conducted on thresholds, in which the court focused on the counter and secured door that divided the “pharmacy section and the store area.”6060 However, because almost any situation involving forced movement will also involve accompaniment and some benefit to the criminal offender, “the first element is doing all the heavy lifting” under the three-part test.6161 Essentially, the Third Circuit’s three-part test turns on whether the offender forced the victim to change location.

Perhaps most importantly, the Reynos court acknowledged that, under its three-part test, “even [ ] the smallest of areas still may contain different locations.”6262

As an example, the court stated that “a judge’s private office may have a location containing a desk and computer that is separate and distinct from a location containing a conference table and chairs.”6363 The dissent in Reynos criticized this approach for “‘virtually ensur[ing]’ that any movement at all [ ] result[s] in an abduction enhancement”6464 by equating “location” with a more precise concept of “move[ment] from [an] original position.”6565 In practice, application of this three-part test is contingent on how a court defines and applies a definition of location under the flexible analysis—it is easy to imagine courts using different definitions of “location” with varying degrees of specificity. Although courts in the Third Circuit are bound by the three-part test, interpreting “location” flexibly allows these courts to reach different conclusions depending on their evaluations of the fact-specific nature of each case. The Reynos court justified its discretionary test by stating, “It is precisely because of the broad scope of the term ‘location’ that courts must use a highly flexible approach in finding [an abduction].”6666

The Tenth Circuit, in United States v Archuleta,6767

“adopt[ed] the Third Circuit’s interpretation of the abduction enhancement, as well as its three-part test for proof of abduction.”6868 In justifying its adoption of the Third Circuit’s three-part test, the Tenth Circuit referred to the Oxford English Dictionary and Black’s Law Dictionary, which respectively define location as “[a] particular place or position”6969 and “the specific place or position of a person or thing.”7070 Interestingly, the Tenth Circuit appeared to focus on the word “or” in these definitions—the court found it important that the dictionary definitions allow for either “place” or “position” to be used in defining “location.” The Tenth Circuit first defined the term “place” and concluded that it “is sometimes interpreted to refer to ‘[a] building or area used for a specific purpose or activity.’”7171 The Archuleta court then looked to define the term “position” and noted that the word “appears to be more narrowly confined to the precise place or spot where a person or thing is located at a single moment in time.”7272 Like the Reynos court, the Archuleta court elected to use this narrow definition of position.7373

By adopting the Third Circuit’s three-part test and its use of “position” instead of “place,” the Archuleta court guaranteed that almost any movement could constitute a change in location. Because the commentary looks to a change in “location”7474

and “position” is defined more precisely than “place,” using “position” as a synonym for “location” sets a much lower standard for establishing a change in location. This analysis played out in the Archuleta majority’s decision: in determining the applicability of the abduction enhancement to the forced movement of victims that occurred during a bank robbery, the court held that the “forced movement of victims from one room or area to another room or area within the same building constitutes an abduction.”7575 The dissent in Archuleta offered a blistering criticism of the majority’s decision to equate “location” with “position” and concluded that, because any movement from “one’s precise spot” would satisfy the change in location requirement, the three-part test “is in fact standardless.”7676

The Seventh, Eighth, and Eleventh Circuits have all held that forced movement within a building does not constitute an abduction under the Guidelines, although the circuits have approached the issue differently. The Seventh and Eleventh Circuits have left open the possibility of “different” locations existing within a building, although neither circuit has explained what it would require to hold that an abduction has occurred within a building. The Eighth Circuit explicitly applied the Seventh Circuit’s abduction holdings in a sexual assault case, but it does not appear that the Eighth Circuit has applied the abduction enhancement in the robbery context. Unlike other circuits that apply the robbery abduction enhancement, the Seventh Circuit looks to whether the offender engaged in the type of conduct “targeted by the abduction enhancement.”7777

The Eleventh Circuit’s analysis focuses on the interpretation of the word “location” and the need to differentiate between the physical restraint and abduction enhancements.7878

The Seventh Circuit has held on several occasions that forced movement within a building does not qualify for the robbery abduction enhancement.7979

In United States v Eubanks,8080 the Seventh Circuit reviewed two abduction enhancements for robberies allegedly committed by the same defendant—a jewelry store robbery that involved dragging a victim a distance of less than six feet into another room and a beauty store robbery that involved the offender forcing the victim into a separate room to retrieve a surveillance tape.8181 The Seventh Circuit reversed the findings of the district court and held that the robbery abduction enhancement applied to neither crime.8282 The Eubanks court declined to explicitly denounce the Third Circuit’s approach in Osborne and instead argued that “the distance and nature of the confinements in [the] case were materially different than in Osborne.”8383 The Eubanks court deemed the two instances under review not to constitute forced movement to a different location because of the distance covered and the intent behind the forced movement8484 —two elements that were left unaddressed by the Third and Tenth Circuits.

Regarding the element of distance in Eubanks, the Seventh Circuit concluded that “under [the] facts . . . transporting the victims from one room to another is simply not enough for abduction. To find otherwise would virtually ensure that any movement of a victim from one room to another within the same building . . . would result in an abduction enhancement.”8585

This appears directly at odds with the majority of the circuits, which have equated “location” with the more precise term “position.”8686

The Eubanks court noted that “there may well be situations in which an abduction enhancement is proper even though the victim remained within a single building,”8787 but the court did not elaborate on how these situations might arise. Outside of the district court opinion that was overturned in Eubanks, I have not found any other district court within the Seventh Circuit that has applied the abduction enhancement to a robbery occurring within a single building.

Unlike the majority of circuits, the Seventh Circuit also seems to define “location” with respect to what it perceives as the purpose of the robbery abduction enhancement: punishing the taking of hostages during a defendant’s escape. The Eubanks court concluded that neither of the robberies met the requirements to establish an abduction enhancement.8888

In distinguishing Osborne, the Seventh Circuit stated, “[I]mportantly, the victims in Osborne were essentially taken hostage to facilitate the defendant’s escape—which is the type of conduct ‘plainly targeted by the abduction enhancement.’”8989 Although courts often look to the scope of conduct targeted by the language of the abduction enhancement in the context of sexual assault cases,9090 the approach in Eubanks appears unique in that the court seemingly required that the abduction occur with the purpose of facilitating the defendant’s escape.9191 Even though the Eubanks court did not explicitly hold that the absence of conduct targeted by the Guidelines would be enough to independently reject applying the robbery abduction enhancement, the “importantly” language is telling. This language reveals that the Seventh Circuit limited the robbery abduction enhancement by implicitly requiring that the enhancement provision apply only to conduct targeted by the robbery abduction enhancement—in this case, the taking of hostages. The Seventh Circuit appears to require more than just an intent to isolate or an act in furtherance of the crime, as both of these elements likely were met in both the jewelry store robbery and the beauty store robbery.9292 Interestingly, the Seventh Circuit did not provide any support for its assertion that the abduction enhancement was created to target the taking of hostages as opposed to other actions.9393

Similar to the Seventh Circuit, the Eleventh Circuit has also repeatedly held that movement within a room or building does not constitute an abduction.9494

Although the Eleventh Circuit has “decline[d] to adopt a categorical rule,” the court in United States v Whatley9595 concluded that “[t]he ordinary meaning of the term ‘different location’ would not apply to each individual office or room in a local branch of a bank.”9696 Instead of defining “location” in a vacuum, the Eleventh Circuit attempted to define “location” as it relates to the “ordinary understanding of the word ‘abducted.’”9797 The Whatley court looked to the Oxford English Dictionary, which defines abduction as “led or carried away improperly, kidnapped”9898 and to the Black’s Law Dictionary, which defines abduction as “[t]he act of leading someone away by force or fraudulent persuasion.”9999 In applying these definitions, the court concluded, “An ordinary observer would conclude that [the offender] had taken the bank employees hostage during the commission of the bank robberies, but would not describe those employees as having been abducted or kidnapped.”100100 By treating the bank as a single location, the Eleventh Circuit essentially elected to define “location” as “place” instead of “position.”101101

The Whatley decision is unique among circuit decisions on the issue of abduction in that the court aimed to preserve the distinction between the physical restraint and abduction enhancements. The Whatley court reasoned that the two-level sentencing enhancement for physical restraint was warranted in another case “when the employees and customers of a credit union ‘were forced at gunpoint into the safe room and ordered to lie face down on the floor.’”102102

The court concluded that, if the robbery abduction enhancement were applied too broadly, the wide-ranging interpretation would “blur the distinction between physical restraint and abduction.”103103 By establishing a higher standard for “different locations,” the Eleventh Circuit attempted to “preserve[ ] a distinction between the sentencing enhancement for physical restraint and the sentencing enhancement for abduction.”104104

The Eighth Circuit has adopted the Seventh Circuit’s abduction-related holdings, but only in some circumstances. Although the abduction enhancements for sexual assault and robbery convictions stem from different provisions and are often treated differently,105105

the Eighth Circuit accepted the Seventh Circuit’s limited interpretation of the robbery abduction enhancement in a case involving a sexual assault.106106 In United States v Strong,107107 a sexual assault victim escaped the offender’s house but was later dragged back into the house.108108 The Eighth Circuit concluded that, “after [the victim] escaped, she was actually dragged to ‘a different location,’ not merely another room. Thus, the abduction enhancement was proper.”109109 The Strong court cited Seventh Circuit case law in concluding that forced movement from room to room does not constitute an abduction for purposes of the sexual assault abduction enhancement, which also requires movement to a different location.110110 The Eighth Circuit’s analysis on the issue is cursory at best, and it remains unclear whether the Eighth Circuit would extend this holding to the robbery abduction enhancement.

All of the circuits this Part discusses interpret and apply the robbery abduction enhancement in a flawed manner. The Third, Fourth, Fifth, and Tenth Circuits use an overly flexible standard that allows for a high level of judicial discretion. Although the approaches used by the Seventh, Eighth, and Eleventh Circuits provide clear benefits, namely restrictions on judicial discretion, these circuits apply these heightened standards without formally rejecting the flexible standard of their sister circuits.

1. The overly flexible analysis.

The approaches used by the Third, Fourth, Fifth, and Tenth Circuits ensure that almost any movement can be labeled as a change in location due to the flexible standards articulated and the assertion that “position” is synonymous with “location.” These approaches fail to comply with the original purposes of the SRA111111

because these circuits expand, rather than cabin, judicial discretion by allowing courts to rely on any one of a number of nonexclusive factors to justify applying the robbery abduction enhancement.112112 Furthermore, when the robbery abduction enhancement can theoretically apply to any forced movement, regardless of the distance involved or dangerousness of the underlying conduct, the sentences given for robbery convictions are no longer proportional to the crime committed.

The flexible standard advocated by the Fifth Circuit in Hawkins113113

and later affirmed by the Third,114114 Fourth,115115 and Tenth Circuits116116 gives an enormous level of discretion to sentencing courts. By rejecting the “mechanical” application of exhaustive factors in favor of “multiple interpretations,”117117 the flexible approach allows courts to point to virtually any location-related factor as justification for determining that an abduction occurred. Under this analysis, courts can apply the robbery abduction enhancement to forced movement over virtually any distance depending on how the court defines “location” or whether the offender forced the victim to cross a threshold.118118

Crucially, in determining whether an offender forced a victim to change location, these courts look to the “particular facts under scrutiny” instead of applying a static definition of location.119119

For example, it would likely be consistent with the holdings in Hawkins and Osborne to apply the robbery abduction enhancement to forced movement between store aisles.120120 Under the flexible analysis, a court may have a legal basis for holding that even forced movement from the toothbrush section to the toothpaste section within the same aisle would qualify for an abduction enhancement. The court could justify its conclusion by reasoning that the store contained many discrete locations or that the movement crossed an abstract threshold. Although these scenarios may appear hyperbolic, courts have affirmed abduction enhancements in cases involving distances as short as “a few steps” under the flexible approach.121121 At the same time, however, it is possible that courts could hold that a change in location did not occur—perhaps the store aisle or aisles could be described as part of the larger pharmacy or merchandise sections. Without a clear method of determining when a change in location has occurred, courts within these circuits are able to reach different conclusions based on the same set of facts. The lack of clear boundaries under the flexible approach highlights the discretion inherent in the tests used by the Third, Fourth, Fifth, and Tenth Circuits.

The inherent problems of the flexible test are most evident when courts equate “location” with “position,” as this allows almost any forced movement to meet the requisite standards for applying the robbery abduction enhancement.122122

The almost automatic application of the robbery abduction enhancement is clearly demonstrated by Hawkins. In Hawkins, the court found that the abduction enhancement applied to forced movement of “some 50 to 60 feet” within a larger parking lot.123123 It is important to note that there is almost an intuitive difference between the factual scenario mentioned in Hawkins and the Guidelines’ example of an abduction, in which the offender forcibly moved the victim using a getaway car.124124 Unlike the fifty to sixty feet of movement in Hawkins, the use of a getaway car implies forced movement over a much greater distance. By trivializing the “different location” requirement and bringing practically all forced movement within the reach of the robbery abduction enhancement, the flexible approach may be fundamentally overinclusive, as courts arguably have applied it to actions other than those targeted by the Guidelines.125125 The dissent in Reynos echoed these concerns and argued that, by equating “location” with the more precise word “position,” this approach “‘virtually ensure[s]’ that any movement at all [ ] result[s] in an abduction enhancement.”126126

2. The ambiguous alternative.

Despite the flaws of the flexible approach, the circuits that have rejected the flexible approach have failed to articulate a clear and workable alternative. Although the Seventh, Eighth, and Eleventh Circuits appear to require more than their sister circuits, the Seventh and Eleventh Circuits have refused to adopt a categorical rule.127127

The Eighth Circuit, which appears to embrace the Seventh Circuit’s approach,128128 likely also declines to adopt a categorical rule. Although the Seventh, Eighth, and Eleventh Circuits have not offered a clear alternative to the flexible approach, when compared to their sister circuits, these circuits require a higher degree of forced movement before applying the robbery abduction enhancement. Both the Seventh Circuit and Eleventh Circuit have proven hesitant to define “location” as “position”—justifying their interpretations with the need for a bright-line distinction129129 and ordinary parlance.130130 The Seventh Circuit has also sought to constrain the robbery abduction enhancement by limiting its application to hostage situations,131131 while the Eleventh Circuit has endeavored to constrain the robbery abduction enhancement by drawing a bright line between the abduction and physical restraint enhancements.132132 Although the constraints used by the Seventh, Eighth, and Eleventh Circuits are somewhat effective in reducing judicial discretion, these circuits would benefit from a categorical rule that crystallizes their heightened standards and allows the circuits to apply the robbery abduction enhancement in a clearer, more consistent, and more uniform manner.

Before articulating an alternative to the flawed tests I describe in Part II.D, it is important to first note how a new solution could fulfill the purposes of the SRA.133133

As I mention in Part II.A, the divergent approaches discussed throughout this Comment differ most significantly as to how to define the phrase “different location.”134134 Any potential resolution must provide clear parameters as to what constitutes a different location. A well-defined framework for applying the phrase “different location” could limit judicial discretion and ensure uniformity, two of the main purposes of the SRA.135135 Furthermore, an alternative solution could ensure that the robbery abduction enhancement is applied in a manner that ensures proportionality—another key goal of the SRA.136136

This Comment seeks to provide a clear solution to the circuit split by offering a functional two-part test that achieves the SRA’s objectives. Part III.A draws a distinct line between the abduction and physical restraint enhancements set forth in USSG § 2B3.1(b)(4). Part III.B presents a modified version of the intent-based test that the Seventh Circuit advocates. This intent-based test ensures proportionality and that the robbery abduction enhancement targets only actions that expose the victim to danger. Part III.C proposes that “location” should be interpreted as “place” instead of “position,” which would effectively add a substantial distance requirement and cabin judicial discretion. Finally, Part III.D combines the prongs that Parts III.B and III.C propose and explains how this two-part balancing test would improve the current state of the law.

To clarify how the approaches in Parts III.B and III.C operate, this Comment applies each approach to the fact pattern in Reynos.137137

Recall that, in Reynos, the defendant forced store employees to move from a locked bathroom, down a corridor, and into a room containing a cash register.138138 The employees moved between thirty-four and thirty-nine feet during the episode.139139

Before delving into the two elements of the proposed balancing test, it is worth noting the importance of differentiating between the abduction and physical restraint enhancements. Because an abduction under the Guidelines is essentially physical restraint plus forced movement to a different location,140140

the definition of location that courts apply determines the boundaries between the two enhancements. Unless courts clearly state how to determine a “change in location,” the two enhancements risk becoming identical in application.141141

1. Overly punitive enhancements in the Guidelines.

As Part II.D.1 explains, the majority of circuits interpret “location” and “abduction” so that they may apply the robbery abduction enhancement in virtually any situation involving forced movement. Furthermore, because an offender forcibly moving a victim is likely relatively common in robberies, most circuits transform the robbery abduction enhancement into an almost universal sentencing enhancement.142142

Instead of enhancing the base sentence in only some circumstances, the enhancement increases the recommended sentence for all robberies with forced movement over virtually any distance. This application is overly punitive for two reasons: the enhancement is fundamentally overinclusive when it applies to almost any robbery offense; and when applied to those offenses, the sentence becomes disproportional to the underlying conduct. Courts have generally felt uneasy about interpreting sentencing enhancement provisions in this overly broad manner, as these interpretations ensure that the Guidelines are universally applied in a manner disproportional to the crime committed.143143 When faced with an overly punitive interpretation of the Guidelines, courts have often rejected such an interpretation.144144

One of the best examples of courts rejecting an overly punitive application of the Guidelines is courts applying the child pornography Guidelines provisions in USSG § 2G2.2.145145

Congress has not updated the Guidelines provisions for nonproduction child pornography offenses in almost a decade, and changes in technology, “such as the widespread use of peer-to-peer [ ] file sharing,” often trigger “multiple guideline enhancements” in “the vast majority” of cases.146146 For example, the Guidelines provide for a two-level enhancement “[i]f the offense involved the use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of the material, or for accessing with intent to view the material.”147147 However, modern possession or distribution of child pornography almost always involves a computer or interactive device—which means that this technology enhancement provision applies in virtually all child pornography cases.148148 Because of the potential for overly punitive applications of these sentencing enhancements, circuits have held that “district courts may vary from the child pornography Guidelines [ ] based on policy disagreement[s].”149149

Because the robbery abduction enhancement could apply in almost any situation involving forced movement if “change in location” is defined broadly, the robbery abduction enhancement bears many similarities to the child pornography technology enhancement. Just as technology is a common component of most child pornography crimes, forced movement is a common component of many robberies. Essentially, the universal application of the robbery abduction enhancement ensures that the robbery abduction enhancement is applied in a disproportional manner, thwarting one of the main objectives of the SRA.150150

The similarities to other overly punitive interpretations should provide courts with an independent reason to reject the approaches used by the Third, Fourth, Fifth, and Tenth Circuits. It is worth noting that the argument that § 2G2.2 is overly punitive arose due to evolving technology, whereas the differentiation between the physical restraint and abduction enhancements has not been affected by changing societal forces or technology. But this distinction is likely not highly relevant as both involve enhancements that may apply in virtually all cases.

2. Establishing boundaries.

Similar to USSG § 2G2.2, the robbery abduction enhancement also faces issues of overinclusivity. As Part II.C discusses, the dissent in Eubanks voiced the concern that a broad interpretation of “different location” would “virtually ensure that any movement at all [ ] result[s] in an abduction enhancement.”151151

Essentially, interpreting “different location” broadly allows the abduction enhancement to supplant the physical restraint enhancement.152152

The two-level physical restraint enhancement provision in USSG § 2B3.1(b)(4)(B) is separated from the four-level robbery abduction enhancement provision in USSG § 2B3.1(b)(4)(A) by the word “or,”153153

which suggests that a distinction exists between the two provisions. In practice, courts have held that the physical restraint enhancement targets behavior that keeps a victim from moving, while the abduction enhancement targets behavior that forces a victim to change location.154154 Courts have consistently rejected double counting claims (applying two mutually exclusive provisions to the same conduct),155155 and there are some situations in which a defendant’s conduct may trigger both enhancements. For example, the Sixth Circuit applied both enhancements when an offender restrained some victims at one location and abducted other victims during the same robbery.156156 Outside of these limited situations in which the crime warrants applying both enhancements, application of an overly broad abduction enhancement merges the two enhancements. Because a change in the victim’s location is the essential difference between the two enhancements, a lower barrier for finding that a change in location has occurred effectively merges the two enhancements. The Eleventh Circuit in particular has noted that applying the robbery abduction enhancement to conduct that is covered under the physical restraint enhancement would “blur the distinction between physical restraint and abduction.”157157 However, alternatives exist, such as the balancing test that Part III.C discusses.

As I mention above, the Seventh Circuit in Eubanks looked to the purpose of the “abduction” enhancement and held that this purpose would be met if the victims “were essentially taken hostage to facilitate the defendant’s escape.”158158

Despite the Eubanks court’s determination that the purpose of the robbery abduction enhancement was “important” in differentiating the facts under review from Osborne, the Eubanks court did not elucidate this line of analysis.159159 Perhaps most remarkably, the Seventh Circuit did not substantiate its claim that the robbery abduction enhancement was created to target hostage taking.160160 Unfortunately, there appears to be no legislative history or other guidance that can shed light on the purpose of the abduction enhancement as applied to robberies.161161 However, an abundance of case law exists on abduction enhancements as applied to sexual assault cases through the sexual assault abduction provision in § 2A3.1(b)(5). Because the sexual abuse abduction enhancement in § 2A3.1(b)(5) and the robbery abduction enhancement in § 2B3.1(b)(4)(A) both use the term “abducted” and require that the victim was forcibly moved to a different location,162162 case law on the sexual assault abduction enhancement can shed light on how the robbery abduction enhancement should be applied. Furthermore, although the circuit courts disagree about how to interpret this language in the robbery context, there appears to be more of a consensus on how to apply the abduction enhancement in the sexual assault context.163163 This Section describes how courts apply the sexual assault abduction provision and also the advantages of this application.

1. Defining “forced movement” using sexual assault case law.

The Guidelines provide a four-level sentencing enhancement “if the victim was abducted” during a sexual assault.164164

The application notes for abduction enhancements in sexual assault cases refer to the same definition of abduction as the abduction enhancements for robbery.165165 As Part I.B discusses, the Guidelines note that the definition of “abduct[ion]” is met if “a victim was forced to accompany an offender to a different location.”166166 Essentially, the definition of abduction requires forced movement plus a change in location.

Courts have often applied abduction enhancements in sexual assault cases. In these cases, the courts have concluded that the abduction enhancement is intended, in part, to protect the victim from the additional risks that may occur during an abduction.167167

Courts have used the rationale behind the sexual assault abduction enhancement to interpret the abduction enhancement—and the phrase “forced movement” in particular.168168 Instead of looking to a “change in location” as the most important element in an abduction, courts instead focus on whether the victim was exposed to additional harm during the forced movement.169169 These courts still examine whether the offender forced the victim to change location,170170 but generally this analysis is very limited.171171 This Comment refers to the analysis of whether the defendant’s actions increased the risk the victims faced as the dangerousness test.

It does not appear that courts have grappled with defining “different location” in sexual assault cases to the same degree as courts in robbery cases. Instead, these courts usually focus on whether the movement to a “different location” increased the likelihood of harm befalling the victim.172172

In fact, courts have often found that abductions occurring over very short distances have satisfied the dangerousness test for purposes of the sexual assault provisions in the Guidelines. For example, in United States v Kills in Water,173173 the Eighth Circuit reviewed whether an abduction enhancement should be applied when a defendant allegedly forcibly moved the victim from the outside of a trailer to the inside of a trailer prior to a sexual assault.174174 The Eighth Circuit concluded that the abduction enhancement applied because, under the dangerousness test, “[the] defendant’s ability to isolate the victim inside the trailer certainly increased the likelihood of harm to the victim.”175175

Notably, the Kills in Water court analyzed the commentary’s example of an offender forcing a victim into a getaway car176176

and concluded that “abduction occurs when a bank robber forces a victim of the robbery to another, physically close location, where the victim’s ability to escape is impaired.”177177 Although distance is not a component of the dangerousness test espoused by the Eighth Circuit, the Eighth Circuit’s total rejection of any distance element may be misplaced—a stationary trailer is actually very different from the mobile getaway car example used in the commentary. This distinction was likely not lost on those drafting the commentary to the Guidelines, especially when a stationary location could have been used instead of a vehicle to furnish an example. It is likely that the commentary meant to imply that the victim in the getaway car example will be taken to a different location—the movement from outside the car to inside the car instead constitutes an incomplete abduction. Otherwise, the drafters could have chosen a clearer example without the implication of additional movement associated with a vehicular abduction.

Why does this distinction matter? Despite the Eighth Circuit’s prompt conclusion that nothing more than movement to “another, physically close location” is necessary in establishing an abduction,178178

the dangerousness test does not speak to whether the movement constituted a change in location. Instead, it looks only to whether forced movement occurred. As an alternative, courts could apply the dangerousness test to determine if the movement was forced while using a separate test to determine whether the offender moved the victim to a different location. Because the definition of an abduction requires both forced movement and a change in location, this alternative is well-suited to use a two-pronged test or a two-part balancing test to incorporate both elements of the definition of abduction.

2. Applying a modified “dangerousness” test.

If the Reynos court were to apply the dangerousness test described above, it likely would have found that forcing employees to move from the bathroom to the cash register fails the dangerousness test—that is, it did not merit the robbery abduction enhancement. To begin with, although the employees were held at gunpoint, the actual movement from the bathroom to the cash register may not have added any more dangerousness than if the employees were being robbed within a single location. The employees were not isolated. In other words, the movement, or the “abduction,” may not have added an element of danger. Viewed in this light, the employees are subject to a similar level of danger as if they were held up during a simple store robbery. Applying the Eighth Circuit’s interpretation of the sexual assault abduction provision, § 2A3.1(b)(5), to this fact pattern, it would be unlikely that a court would apply the abduction enhancement because there was no “isolat[ion] [of] the victim [that] increase[d] the likelihood that the victim [would] be harmed.”179179

However, as I discuss below, sexual assault case law involving isolation may be of limited utility.

The dangerousness approach this Section describes offers several key advantages over any of the current methods the circuits use. First, the dangerousness test is more likely to target traditional abduction actions. By looking to the effects of movement forced on the victim rather than the movement itself, this test likely resolves any problems of overinclusion. Instead of applying the abduction enhancement to almost any forced movement, the dangerousness test ensures that the abduction enhancement targets conduct that is harmful to the victim. For cases in which the victim’s forced movement fails the dangerousness test, courts could still apply the physical restraint enhancement to the offender’s sentence. Restricting application of the abduction enhancement in this limited manner ensures the proportionality of the enhancement—one of the key goals of the SRA.180180

Second, the dangerousness test is particularly appropriate in the abduction context because the dangerousness test targets behavior that decreases the probability of detection, which also decreases the cost to the offender of committing the crime.181181 Lastly, this test incorporates existing sexual assault case law applying the abduction enhancement—case law that has already resolved many questions of application. Courts can draw directly from this case law, which would reduce uncertainty and judicial discretion because many of these issues have already been settled.

However, the dangerousness test may allow judges more discretion in some situations as the dangerousness test is more of a standard than a rule.182182

It is plausible that almost any forced movement could be characterized as increasing the level of danger to the victim by virtue of the movement being forced. For example, moving a victim several feet at gunpoint could arguably increase the risk of injury to the victim because the victim would have an opportunity to resist and an injury may result. In these situations, courts may have to determine how much danger is sufficient to satisfy the dangerousness test. Courts could come to tenable disagreements on this matter.

Furthermore, case law applying § 2A3.1(b)(5) may offer little guidance in these situations as isolation often satisfies the dangerousness test if it precedes a sexual assault. Courts often find that isolation is sufficient to satisfy the dangerousness test because the isolation can give the offender “a better chance to consummate his [or her] crime” or create an additional risk of harm to the victim.183183

However, the element of isolation is less probative in the context of robbery. Although it is possible for isolation to come before a successful robbery,184184 hostage situations often occur after completion of the robbery, frequently with the purpose of destroying evidence185185 or facilitating the offender’s escape.186186 Additionally, unlike sexual assault cases, which often involve only one victim, many robberies with an abduction component involve multiple victims.187187 However, some of these issues are mitigated by implementing the dangerousness test alongside a substantial distance requirement, which the next Section develops.

Currently, no court has adopted an explicit substantial distance requirement for abduction enhancements under the Guidelines. However, courts could look to legal authorities on kidnapping from sources outside of the Guidelines.188188

Drawing on these sources could help to define what “abduction” means within the robbery abduction enhancement.189189 These sources could include the Model Penal Code190190 (MPC) and kidnapping case law at the state level.191191 Although these sources treat kidnapping as a separate crime from robbery and not as an enhancement in the sentencing phase, these sources have dealt with similar issues of proportionality and uniformity.

Although the robbery abduction enhancement was created by the United States Sentencing Commission, courts often look to existing common law doctrines when interpreting sentencing guidelines.192192

This Section looks to kidnapping case law in order to better comprehend the robbery abduction provision.

1. Defining “location” using state law.

While “[t]he traditional rule in American jurisprudence was that any asportation—i.e., carrying away—of the victim, no matter how short in distance or duration, was sufficient to establish the crime of kidnapping,” a series of state court decisions in the 1960s and 1970s “severely [limited] the scope of [ ] state kidnapping statutes.”193193

State courts have used a variety of methods to limit the doctrine to cases involving genuine kidnapping instead of lesser crimes, such as false imprisonment.194194 For reasons of clarity and uniformity, this Comment focuses on states that have instituted a substantial distance requirement, such as California,195195 while generally avoiding discussion of states that have not instituted such a requirement.196196 However, it is worth noting that many of the states that have not instituted a substantial distance requirement have instead applied alternative limiting doctrines. For example, the New York Court of Appeals settled on a merger doctrine of sorts by limiting kidnapping convictions to instances in which the ultimate crime (for example, robbery or sexual assault) “could not be committed in the forms planned without the limited asportations [ ] involved.”197197

Courts in states that adopted a distance requirement predominantly have based their decisions on “[t]he inequity inherent in permitting kidnapping prosecutions of those who in reality committed lesser or different offenses, of which temporary seizure or detention played an incidental part.”198198

For example, the California Supreme Court concluded that “incidental movements are not of the scope intended by the Legislature in prescribing the asportation element of [aggravated kidnapping].”199199 The Third Circuit surveyed substantial distance tests and determined that

four factors are central to each of these approaches. Those factors are: (1) the duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate
offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.200200

200

Berry, 604 F2d at 226–27.Hide

Only the first and fourth elements are relevant to this Comment.

The MPC has unambiguously instituted a distance or temporal requirement in kidnapping cases that do not involve removal from a home or business. For the state to secure a conviction under the MPC, the state must show that the defendant unlawfully removed a person “from his place of residence or business, or a substantial distance from the vicinity where he is found, or . . . unlawfully confine[d] [that person] for a substantial period in a place of isolation.”201201

In drafting the MPC, the authors noted that, under the traditional rule, even minor asportation can lead to a kidnapping conviction and “[t]he criminologically non-significant circumstance that the victim was detained or moved incident to the crime determines whether the offender lives or dies.”202202 Because the MPC uses “the word ‘vicinity’ rather than ‘place’ and [ ] requir[es] substantial removal, the section makes clear the purpose to preclude kidnapping convictions based on trivial changes of location having no bearing on the evil at hand.”203203 In fact, the the MPC drafters were clear that they wanted to “eliminate[ ] the absurdity of prosecuting for kidnapping in cases where the victim is forced . . . to the back of his store in the course of a robbery.”204204 The “substantial removal” requirement likely is doing more of the heavy lifting under the MPC when compared to the MPC’s use of the word “vicinity” rather than “place.” This is because the definition of the word “vicinity” is similar to that of “place.”205205

Courts have elected to define the substantiality requirement not in terms of a bright-line distance but rather in terms of the combination of “duration, distance, and [ ] change in environment.”206206

Courts have found that the substantiality requirement may be met in certain instances over short distances, but these cases are usually limited to situations in which the forced movement leads to a change in environment. This change in environment element often informs what constitutes “substantially” instead of a concrete distance requirement.207207

These courts define location as “place” instead of “position.” For example, in Virgin Islands v Alment,208208

the Third Circuit looked to whether the forcible dragging of a sexual assault victim approximately seventy feet “from a lighted interior office . . . into a dark area of bushes” met the dangerousness test and the requirement of substantiality.209209 Despite the short distance involved, the duration of the asportation “lasted, at a minimum . . . fifteen minutes, to a maximum of forty-five minutes to one hour.”210210 The court determined that the forcible dragging, and the physical harm that resulted, satisfied the dangerousness test, while the “duration” and “shift in environment” met the substantiality requirement.211211 Similarly, another Third Circuit case determined that forcibly dragging a minor “eighty-eight feet. . . . through the bushes into [a neighbor’s] house” to perpetrate a sexual assault met the sufficient distance requirement because “pulling [the victim] away from the place where she was playing” constituted a change in environment.”212212 By requiring a change in environment, these courts are essentially requiring a change in “place” rather than a change in “position.”

2. “Place” versus “position” in light of the Guidelines.

Although courts have not adopted an explicit substantial distance requirement for abduction enhancements under the Guidelines, debate over whether “location” should be defined as “position” or “place” looks to fundamentally the same issue.213213

Defining “location” as “position” would allow courts to apply the robbery abduction enhancement even over a comparatively short distance, while defining “location” as “place” would limit courts to applying the robbery abduction enhancement only if the victim was forcibly moved from a comparatively larger area.214214 The importance of this distinction arises from the more exact definition of position215215 as opposed to the more imprecise definition of place.216216 This Comment advocates for defining “location” as “place” instead of “position.” Doing so essentially would institute an implied substantial distance requirement.

Part of the justification for an implied substantial distance requirement can be found in the Fourth and Fifth Circuits’ analyses. Instead of applying “ordinary parlance” to determine “different location[s]” as the phrase relates to abductions, these circuits defined “a different location” in the abstract.217217

By examining the phrase “different location” in a vacuum, courts have reached conclusions that are likely inconsistent with how “different location” would be interpreted by the general public in abduction cases.218218

3. Applying a substantial distance requirement.

Although this Comment recommends a two-part balancing test that looks to both dangerousness and distance, for purposes of demonstration, this Section applies the substantial distance requirement to the facts of Reynos without any elements of the dangerousness test.

If a substantial distance requirement were required in Reynos, the court likely would have held that the robbery abduction enhancement was inapplicable. Because the victim in Reynos was transported only thirty-four to thirty-nine feet,219219

the forced movement would almost certainly not qualify as “substantial.”220220 Instead, the movement in Reynos, which occurred within a building, would fail the substantiality requirement because the movement transpired within a single “environment” or “place.” However, if the facts were changed so that the forced movement of forty feet or so happened from building A, into an outside area, and into adjacent building B, courts may find that the substantiality requirement is met. In this alternative fact pattern, the victim is moved from “one building or area used for a specific purpose or activity” into another “building or area used for a specific purpose or activity”221221 —changing one environment for another. Although it is possible that some courts may try to interpret an environment or “an area used for a specific purpose or activity” to include smaller locations,222222 state courts have repeatedly required more than movement within a building or confined area when applying the substantiality requirement.223223 As Part III.C.1 discusses, the substantiality requirement does not look only to distance at the exclusion of other factors but to a combination of “duration, distance, and [ ] change in environment.”224224

Implementing a substantial distance requirement would first and foremost provide a means to curtail judicial discretion when applying the robbery abduction enhancement under the Guidelines. Courts could draw from decades of judicial kidnapping precedent to apply a uniform definition of location. The Fourth and Fifth Circuits’ flexible approach and the Third and Tenth Circuits’ relatively toothless three-part test would be replaced with a much clearer standard rooted in case law. Although the substantial distance test described in this Section allows courts some discretion in determining its applicability, the substantial distance test cabins discretion compared to the majority approach. If the substantial distance test were adopted, these circuits would be bound by decades of precedent on how to determine a change in location and could not define “location” flexibly. Although it is likely that adopting a substantiality requirement would not change the holdings in the Seventh, Eighth, and Eleventh Circuits, these circuits would also benefit from having their case-by-case approaches standardized.

It is difficult to determine why circuits have not yet created and applied a substantial distance test for the robbery abduction enhancement. One possible rationale is that the Guidelines and commentary do not explicitly mention a substantial distance requirement. However, courts have not hesitated to look beyond the statutory language of the robbery abduction enhancement,225225

and there does not appear to be any reason why the substantial distance requirement should be treated differently.

For cases in the Third, Fourth, Fifth, and Tenth Circuits, courts apply the robbery abduction enhancement in an almost arbitrary manner, relying on a number of indeterminate factors.226226

Furthermore, these courts have repeatedly chosen to apply the enhancement to conduct occurring over very short distances—targeting conduct that may not pose any additional risks to the victim.227227 Although the Seventh, Eighth, and Eleventh Circuits represent an improved approach compared to their sister circuits, the Seventh Eighth, and Eleventh Circuits have not yet formulated a clear and concise approach for applying the robbery abduction enhancement.228228

Because the dangerousness test and the substantial distance requirement are not mutually exclusive, courts should apply a two-part balancing test that looks to both dangerousness and distance. The Guidelines state that courts should apply the robbery abduction enhancement (1) if the victim “was forced to accompany the defendant” and (2) if that forced movement was “to another location.”229229

Because the dangerousness test establishes whether the movement was forced, and the substantial distance test indicates whether that movement was to a different location, this two-part balancing test provides courts with a clear test that encapsulates the full meaning of “abduction.”

In establishing whether the robbery abduction enhancement should be applied in a given scenario, courts should use a sliding scale.230230

On this sliding scale, an abduction occurring over a substantial distance would require comparatively less danger for the robbery abduction enhancement to apply. Likewise, an abduction that poses a great danger to the victim but occurs over a relatively short distance would also meet the conditions of this two-part balancing test. For example, forced movement over state lines would constitute an abduction even if the victim is not placed in a particularly dangerous situation, but forced movement within a building would require the victim be exposed to a great deal of danger. The California Supreme Court uses a similar multipart balancing test that looks to both substantial distance and whether the victim was exposed to additional danger.231231 The California Supreme Court’s multipart balancing test is also a sliding scale.232232

Applying this sliding scale allows courts to target the most egregious abductions: those posing either a severe danger to the victim or occurring over a greater distance. However, unlike a two-prong test in which both prongs must be met, a sliding scale test also allows courts to apply the robbery abduction enhancement to situations involving moderate danger to the victim and moderate distance. An example of a fact pattern involving moderate danger that likely fails the substantial distance test is Hawkins, in which the victim was dragged by the hair at gunpoint “50 to 60 feet” toward a getaway car.233233

Hawkins involved considerable danger to the victims, mainly because the victims were forcibly moved toward a more isolated environment and because of the high potential for injury involved in that movement,234234 but the distance involved was slight to moderate, the duration was relatively brief, and no change in location occurred. In cases like Hawkins, in which one prong is clearly met but the other prong tilts the other way, it may be desirable for courts to apply the robbery abduction enhancement to avoid issues of underinclusion.235235

Furthermore, the balancing test provides the additional benefit of preserving the distinction between the physical restraint and abduction enhancements. For example, forced movement without a requisite change in location would not trigger the robbery abduction enhancement, but it would still satisfy the requirements for applying the physical restraint enhancement.236236

Cases failing either the dangerousness test or the substantiality requirement of the balancing test could instead be categorized as falling under the physical enhancement provision even if they do not satisfy the abduction enhancement requirements.

Moreover, the original goals of the SRA, including proportionality and uniformity,237237

support adopting a two-part balancing test. The dangerousness requirement ensures that the robbery abduction enhancement applies only to conduct that presents an additional hazard to victims, remedying any issues of overinclusivity and ensuring that the robbery abduction enhancement is applied proportionally. The substantial distance requirement brings uniformity and consistency to the abduction requirement while also providing decades of precedent on how “location” should be defined. These requirements complement one another—although the dangerousness test could potentially increase judicial discretion by implementing an open-ended standard, the substantial distance requirement provides a check on that discretion. Compared to the flexible analysis currently used by many courts,238238 this two-part test would greatly constrain courts applying the robbery abduction enhancement. Furthermore, this two-part balancing test would have the added benefit of preserving the distinction between physical restraint and abduction for Guidelines purposes.

If we apply the two-part balancing test described above to the facts in Reynos, we can further see how this proposed test would function. Because the distance in Reynos was between thirty-four and thirty-nine feet at most,239239

the fact pattern would likely fail the substantial distance requirement.240240 Additionally, Reynos would probably fail the dangerousness test because there does not appear to be any evidence that the forced movement substantially increased the danger posed to the victims.241241 Unlike Hawkins, in which we apply the abduction enhancement because the dangerousness makes up for the lack of distance, Reynos fails both the dangerousness test and the substantial distance test. This two-part balancing test would remedy the circuit split addressed in Part II and alleviate the issues arising out of the overly flexible approach advocated for by the majority of circuits.

This Comment has argued that the Third, Fourth, Fifth, and Tenth Circuits have applied an overly precise interpretation of “location.” These circuits have used the robbery abduction enhancement provision in USSG § 2B3.1(b)(4)(A) to apply a four-level enhancement when a physical restraint enhancement would be more appropriate. The Seventh, Eighth, and Eleventh Circuit have remedied some of these issues but have not gone far enough in creating a permanent solution. To address these issues, this Comment advocates adopting a balancing test that looks to both dangerousness and distance. Both principles are heavily rooted in abduction case law, much of which has been developed precisely to remedy overinclusive statutory language in similar contexts. Finally, the adoption of the balancing test would preserve the boundary between the physical restraint and abduction enhancements.