Introduction

“Hands up! Nobody move a muscle!” You look up from your desk and see a man in a mask aiming a gun at you. Immediately, you realize he is robbing the bank where you work. You throw up your hands as he proceeds to grab you and force you around the bank. He hands you a duffle bag and holds you at gunpoint as you move around the bank stuffing the bag with all the cash on hand. When the bag is full, he ushers you outside and into a waiting getaway van. As you sit there, curled up in the back of the van, it dawns on you; you have been abducted. But what if, after filling the bag with cash, the robber simply left you in the bank and fled by himself? Would you still have been abducted? Depending on which judicial circuit you live in, the law provides different answers.

The Courts of Appeals are split over the proper application of the abduction sentencing enhancement for robbery.¹SeeUnited States v. Hill, 963 F.3d 528, 535–36 (6th Cir. 2020); United States v. Archuleta, 865 F.3d 1280, 1288 (10th Cir. 2017); United States v. Whatley, 719 F.3d 1206, 1222–23 (11th Cir. 2013); United States v. Reynos, 680 F.3d 283, 286–87 (3d Cir. 2012); United States v. Eubanks, 593 F.3d 645, 653–54 (7th Cir. 2010); United States v. Osborne, 514 F.3d 377, 389–90 (4th Cir. 2008);United States v. Hawkins, 87 F.3d 722, 727–28 (5th Cir. 1996). The enhancement, found in the United States Sentencing Guidelines (“Guidelines”), applies in cases where “any person was abducted to facilitate” the robbery or escape.²U.S. Sent’g Guidelines Manual § 2B3.1(b)(4)(A) (U.S. Sent’g Comm’n 2021). Various circuits do not agree on what this means though, and this has led some circuits to apply the enhancement in cases where victims were simply moved within the building being robbed.³See, e.g., Osborne, 514 F.3d at 389; Hawkins, 87 F.3d at 727–28. Other circuits have not used the enhancement so liberally and have argued that the enhancement generally does not apply in cases where the victim remains inside the building being robbed the entire time.⁴See, e.g., Hill, 963 F.3d at 533. When a judge applies the abduction enhancement, a defendant receives multiple months or even years of additional prison time.⁵U.S. Sent’g Guidelines Manual§§ 2B3.1(b)(4)(A), 5A (U.S. Sent’g Comm’n 2021). Considering that the Guidelines were specifically designed to increase “certainty and fairness” in the sentencing process, the fact that this circuit split allows for large sentencing disparities for similar conduct is problematic.⁶28 U.S.C. § 991(b)(1)(B).

This Comment proposes a categorical rule for deciding whether the abduction enhancement should be applied. Part I of this Comment explains the background and purpose of the Guidelines as well as the specifics of the abduction sentencing enhancement. Part II explains the circuit split and the two solutions to the circuit split proposed by other scholars. Part III analyzes flaws in the approaches taken by the Courts of Appeals and the approaches suggested in the academic literature. Part IV explains this Comment’s suggested approach: the abduction enhancement should be applied only in cases where a victim is forced to move (1) across a property line while not inside a building; (2) into or out of a building; (3) into or out of a dwelling; (4) into or out of a vehicle; (5) further than 0.1 miles from their initial location; or (6) when a victim, who is already in a vehicle, is forced to drive the offender somewhere.

I.     The Sentencing Guidelines and the Abduction Enhancement

To properly understand the problematic circuit split, this Part reviews the history of the Guidelines and the text of the abduction sentencing enhancement. Section I.A covers the Guidelines thus laying the groundwork for Section I.B which discusses the abduction enhancement.

A.     The History of the Sentencing Guidelines

In 1984, Congress passed the Sentencing Reform Act (“SRA”).⁷See generally Pub. L. No. 98-473, 98 Stat. 1987 (codified as amended in scattered sections of 18 and 28 U.S.C.). Before its enactment, there was practically no regulation of sentencing on a federal level beyond “broad statutory penalty ranges,” and there was little to no appellate review of imposed sentences.⁸Brent E. Newton & Dawinder S. Sidhu, The History of the Original United States Sentencing

Commission, 1985–1987, 45 Hofstra L. Rev. 1167, 1169 (2017). This sometimes resulted in vastly disparate sentences for the same conduct.⁹See S. Rep No. 98-225, at 41 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3224. In an effort to cure this and other related issues, Congress enacted the SRA.¹⁰Newton & Sidhu, supra note 8, at 1169, 1178–81. The SRA created the United States Sentencing Commission (“Commission”).¹¹28 U.S.C. § 991(a). The Commission was tasked with creating policies that decided what characteristics of offenders and offenses should be considered during sentencing.¹²Newton & Sidhu, supra note 8, at 1185. These policies were supposed to prevent wide sentencing disparities by making federal sentencing fairer and more certain.¹³28 U.S.C. § 991(b). They were also designed to comport with “the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation.”¹⁴U.S. Sent’g Guidelines Manual § 1A1.2 (U.S. Sent’g Comm’n 2021). These policies are now known as the Guidelines or the Federal Sentencing Guidelines, and they are promulgated by the Commission through the United States Sentencing Guidelines Manual (“Manual”).¹⁵Id. § 1A1.1.

The Manual lists all federal offenses and assigns each of them an “offense level” that may be added to or subtracted from based on characteristics of the crime or criminal that warrant a higher or lower offense level.¹⁶Id. § 1B1.1. These additions or subtractions to the offence level are referred to as enhancements, adjustments, or determinations.¹⁷Id. § 1B1.1 cmt. n.4(B). After calculating the final offense level of a crime or group of crimes, a federal court must turn its attention to the Manual’s Sentencing Table, which calculates a suggested prison sentence range based on an offender’s offense level and criminal history.¹⁸Id. § 5A. All offense levels are not created equal—the higher the base offense level, the more months of suggested prison time an additional offense level adds (or subtracts in the case of the offense level being lowered).¹⁹Id.

For an example of how this works, imagine that someone robs a post office with a knife. Robbery has a base offense level of twenty.²⁰U.S. Sent’g Guidelines Manual § 2B3.1 (U.S. Sent’g Comm’n 2021). Because the defendant robbed a post office and used a knife, the judge would increase the offense level by five levels: two levels because the establishment robbed was a post office and three levels because the defendant possessed a dangerous weapon.²¹Id. That leaves the hypothetical defendant with a total offense level of twenty-five. Assuming he has no prior criminal history, his offense level would leave him with a suggested sentence of fifty-seven to seventy-one months in prison.²²Id. § 5A. Had the defendant not qualified for the two sentencing enhancements, his offense level would have remained at the base level of twenty and his suggested sentence would have only been thirty-three to forty-one months in prison.²³Id. §§ 2B3.1(a), 5A. Thus, because of the sentencing enhancements, the defendant would face anywhere from sixteen to thirty-eight months of extra prison time.

When originally promulgated, the Guidelines were mandatory in federal courts.²⁴18 U.S.C. § 3553(b)(1). In 2005, though, the Supreme Court ruled that making the Guidelines mandatory violated the Sixth Amendment; therefore, they now function in a purely advisory capacity.²⁵United States v. Booker, 543 U.S. 220, 243–44 (2005). Even though the Guidelines are no longer mandatory, federal sentences frequently comport with the sentence ranges suggested by the Guidelines making them an important and still relevant part of federal sentencing.²⁶David J. Sandefer, Comment, To Move or Not to Move? That Is the Metaphysical Question, 85 U. Chi. L. Rev. 1973, 1977 (2018).

B.     The Abduction Sentencing Enhancement

The abduction sentencing enhancement may be applied in robbery cases and increases the total offense level of an offense by four, which could mean years of extra prison time for a defendant.²⁷U.S. Sent’g Guidelines Manual § 2B3.1(b)(4)(A) (U.S. Sent’g Comm’n 2021). The abduction sentencing enhancement states: “If any person was abducted to facilitate commission of the offense or to facilitate escape, increase [the offense level] by 4 levels.”²⁸Id. The text of the physical restraint enhancement immediately follows that of the abduction enhancement and states: “[I]f any person was physically restrained to facilitate commission of the offense or to facilitate escape, increase [the offense level] by 2 levels.”²⁹Id.§ 2B3.1(b)(4)(B). The two enhancements are usually seen as mutually exclusive.³⁰See United States v. Hill, 963 F.3d 528, 535 (6th Cir. 2020). Therefore, in cases where a defendant argues against applying the abduction enhancement, the defendant also argues, at least implicitly, that the physical restraint enhancement applies instead.³¹See id. at 532. In effect, a defendant challenging the application of the abduction sentencing enhancement is usually looking for a net result of his offense level being lowered by two—the difference between the abduction and physical restraint enhancements—and not the full four levels the abduction enhancement adds.³²U.S. Sent’g Guidelines Manual § 2B3.1(b)(4) (U.S. Sent’g Comm’n 2021). Despite this, the debate over application of the abduction enhancement should not be seen as trivial, because even a two level increase to an offense level could mean multiple additional years of suggested prison time.

While the basic text of the abduction enhancement is helpful, the Guidelines’ definition of “abducted” is far more useful and is ultimately where the debate lies. Under the Guidelines, “‘[a]bducted’ means that a victim was forced to accompany an offender to a different location. For example, a bank robber’s forcing a bank teller from the bank into a getaway car would constitute an abduction.”³³Id. § 1B1.1 cmt. n.1(A). The application of the abduction enhancement in each case turns on whether the victim was forced to accompany the offender to a different location.³⁴See United States v. Archuleta, 865 F.3d 1280, 1287 (10th Cir. 2017); Sandefer, supra note 26, at 1975. How exactly to define “location,” however, is what has divided the Courts of Appeals and created the circuit split.³⁵See Archuleta, 865 F.3d at 1287; Sandefer, supra note 26, at 1975.

II.     The Circuit Split and Existing Scholar-Proposed Solutions

A.     The Circuit Split

The seven Courts of Appeals that have ruled on the proper application of the abduction sentencing enhancement follow one of two distinct approaches: (1) the flexible approach or (2) the narrow approach.

1.    The Flexible Approach

The Third, Fourth, Fifth, and Tenth Circuits embrace a “flexible . . . case by case” standard by which they determine whether a victim was really moved to a new “location.”³⁶Archuleta, 865 F.3d at 1288; United States v. Reynos, 680 F.3d 283, 286–87 (3d Cir. 2012); United States v. Osborne, 514 F.3d 377, 389–90 (4th Cir. 2008); United States v. Hawkins, 87 F.3d 722, 727–28 (5th Cir. 1996). The Tenth Circuit has not technically adopted the flexible approach, but they have construed location broadly as “position,” which produces results in line with the other circuits which have expressly adopted the flexible approach. Therefore, for neatness’ sake, the Tenth Circuit is included along with the other circuits who have adopted the flexible approach. See Archuleta, 865 F.3d at 1288. They have ruled that, because “location” is open to “multiple interpretations,” the meaning of “location” in each case should be decided on a “case by case” basis contingent on “the particular facts under scrutiny.”³⁷Hawkins, 87 F.3d at 727–28; see Osborne, 514 F.3d at 389–90. As applied by these four circuits, the practical result of them using the flexible approach is that the abduction enhancement is applied when robbery victims are moved relatively short distances even when that movement is completely within the building being robbed.³⁸See Osborne, 514 F.3d at 389–90; Hawkins, 87 F.3d at 728. Under the flexible approach, it is not clear what movement would be too minimal to warrant applying the abduction enhancement.

a.    The Fifth Circuit: United States v. Hawkins

United States v. Hawkins³⁹87 F.3d 722 (5th Cir. 1996). is the first circuit court case to address what “location” means when applying the abduction enhancement.⁴⁰See id. at 726–27. Though Hawkins cites United States v. Reed, 26 F.3d 523 (5th Cir. 1994), and United States v. Davis, 48 F.3d 277 (7th Cir. 1995), as cases which dealt with deciding whether a victim was moved to a new location, both cases were very clear cut because they dealt with movement into or out of a building. The court rejected a mechanical or rigid interpretation of location opting instead for a flexible “case by case” approach which did not rely on “the presence or absence of doorways, lot lines, thresholds, and the like.”⁴¹Id. at 728. Hawkins staged a carjacking and forced two victims, at gunpoint, forty to fifty feet across a parking lot.⁴²Id. at 724–26. Appellant Hawkins argued that the abduction enhancement should not apply because his attempt to abduct the robbery victims was not successful and, therefore, they were not forced to a different location.⁴³Id. at 726. Applying a case-specific analysis, the court rejected this argument concluding that the abduction enhancement was rightly applied despite the fact that the robbery victims never left the property and were only moved forty to fifty feet within the same parking lot.⁴⁴Id. at 728. According to the court, the place where the victims were originally confronted by the robbers was a location distinct from the area forty to fifty feet away to which they were forced to move.⁴⁵Hawkins, 87 F.3d at 728.

b.    The Fourth Circuit: United States v. Osborne

In United States v. Osborne,⁴⁶514 F.3d 377 (4th Cir. 2008). the Fourth Circuit expressly adopted the Fifth Circuit’s flexible approach to deciding what it means to move to a different location for the purposes of the abduction enhancement.⁴⁷Id. at 389–90. Appellant Osborne robbed the pharmacy section of a Walgreens and forced the two pharmacy workers, at knifepoint, to accompany him out of the pharmacy section and to Walgreens’s exit.⁴⁸Id. at 381–82. Osborne attempted to get both pharmacy workers to come outside with him, but they refused.⁴⁹Id. at 382. Osborne argued that because the pharmacy workers were only forced to accompany him from the pharmacy section to the exit, they were not forced to a different location and, therefore, the abduction enhancement should not have been applied to his case.⁵⁰Id. at 388. After adoption of the Fifth Circuit’s flexible location standard, the court went on to reject Osborne’s argument, ruling that he in fact did move the pharmacy workers to a different location.⁵¹Id. at 389–90. The court concluded that the abduction enhancement was rightly applied because the main store area of Walgreens could, in ordinary parlance, be considered a location distinct from the pharmacy section; the court also noted that Osborne, in forcing the pharmacy workers to walk with him to the exit, “rendered them potential hostages,” which, according to the Fourth Circuit, is the kind of “conduct plainly targeted by the abduction enhancement.”⁵²Osborne, 514 F.3d at 390.

c.    The Third Circuit: United States v. Reynos

In United States v. Reynos,⁵³680 F.3d 283 (3d Cir. 2012). the Third Circuit rejected appellant’s challenge to the application of the abduction sentencing enhancement by embracing the flexible approach to defining location previously adopted by the Fourth and Fifth Circuits.⁵⁴Id. at 286–87, 290. In the process of robbing a restaurant, appellant Reynos and his accomplice “kick[ed] in the bathroom door” in order to get one of the employees, who had hid in the bathroom, “to open . . . the cash register.”⁵⁵Id. at 285. Reynos then went with one of the employees to the register and robbed it.⁵⁶Id. Reynos argued that the abduction enhancement was misapplied to his case because his forcible movement of one of the victims “from the bathroom to the cash register” did not constitute a change in location.⁵⁷Id. at 287.

In deciding whether a change in location occurred, the court stated that, while movement between two different structures certainly constituted movement to a different location, location was a broad enough word to allow for the identification of distinct locations even in “the smallest of areas.”⁵⁸Id. at 290 (“[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.”). Using this broad understanding of location, the court held that the cash register and bathroom were separate locations because they were separated by walls, a locked door, and a distance of thirty-four to thirty-nine feet.⁵⁹Reynos, 680 F.3d at 290–91.

d.    The Tenth Circuit: United States v. Archuleta

In United States v. Archuleta,⁶⁰865 F.3d 1280 (10th Cir. 2017). the Tenth Circuit also adopted a broad definition of location which defined “location” as “position.”⁶¹Id. at 1287–88. During a bank robbery, appellant Archuleta and his accomplice forced a teller and bank manager, at gunpoint, to move over to the bank vault so that they could open it.⁶²Id. at 1282. Archuleta argued that the abduction sentencing enhancement should not have been applied to his case.⁶³Id. at 1285. In rejecting Archuleta’s claim, the Tenth Circuit specifically stated that it was required to interpret “location” based on the word’s plain meaning and that the plain meaning of “location” was not “a building or area used for a specific purpose or activity” but rather “appear[ed] to be more narrowly confined to the precise place or spot where a person or thing is located at a single moment in time.”⁶⁴Id. at 1287–88 (citations omitted). As such, the movement of the teller and bank manager constituted movement to a new location because they were moved from their original positions inside the bank.⁶⁵See id. at 1288–89. Therefore, the court ruled that the abduction enhancement was rightly applied.⁶⁶Archuleta, 865 F.3d at 1289.

2.    The Narrow Approach

The Sixth, Seventh, and Eleventh Circuits have all declined to apply the abduction sentencing enhancement in cases where robbery victims were simply moved to different areas within the same building.⁶⁷See United States v. Hill, 963 F.3d 528, 534–36 (6th Cir. 2020); United States v. Whatley, 719 F.3d 1206, 1222–23 (11th Cir. 2013); United States v. Eubanks, 593 F.3d 645, 653–54 (7th Cir. 2010). Despite this, these circuits have failed to adopt a well-defined uniform standard for applying the abduction enhancement.⁶⁸See Hill, 963 F.3d at 536; Whatley, 719 F.3d at 1222–23; Eubanks, 593 F.3d at 653–54. Additionally, these circuits have not completely ruled out applying the abduction enhancement in future cases where a victim is moved around solely within the same building.⁶⁹See Hill, 963 F.3d at 536; Whatley, 719 F.3d at 1222; Eubanks, 593 F.3d at 653–54. Under this narrow approach, victims must be moved further to trigger the abduction enhancement than they must be under the flexible approach, but there is no clear rule defining exactly how the narrow approach is applied.⁷⁰See Hill, 963 F.3d at 535–36; Whatley, 719 F.3d at 1222–23; Eubanks, 593 F.3d at 653–54.

a.    The Sixth Circuit: United States v. Hill

In United States v. Hill,⁷¹963 F.3d 528 (6th Cir. 2020). the Sixth Circuit, the most recent circuit to weigh in on this circuit split, found that victims were generally not moved to a different location when moved from one area of an establishment being robbed to another area of the same establishment.⁷²See id. at 532. Appellant Hill and an accomplice robbed a Sprint retailer and led the four victims—three employees and one customer—to a back room at gunpoint.⁷³See id. at 530. Hill contended that the abduction sentencing enhancement was wrongly applied to his case because the victims of the robbery were not moved to “a different location.”⁷⁴See id. at 531–32. The court signaled its agreement and laid out five reasons why moving victims from one part of a store being robbed to another part of the same store should not trigger the abduction enhancement.⁷⁵See id. at 533–36. First, the court said, in the context of a robbery, the word “location” more naturally applies to the entirety of the building or business being robbed, not just to the specific area of the building in which the robbery is being carried out.⁷⁶See id. at 533–34. Second, the court noted that the phrase “different location” must be interpreted in light of the rest of the definition given for “abducted.”⁷⁷See Hill, 963 F.3d at 534. Specifically, the court stated that because the Guidelines’ definition for “abducted” already contained the term “accompany,” which inherently suggests at least some minimal movement, the fact that it also specifies that the victim must be accompanied to a “different location” suggests that more than just minimal movement is required to trigger the enhancement.⁷⁸See id. (citing Whitfield v. United States, 574 U.S. 265, 267–68). Third, the court pointed out that the example of an abduction given in the Guidelines’ definition of “abducted” included movement from a building to a car, which suggests that movement purely within the same building would not constitute abduction.⁷⁹See id. Fourth, the court argued that the use of the word “abducted” in the sentencing enhancement signals that the victim is not simply being moved around in a building but is being “taken away” in some more extensive fashion.⁸⁰See id. at 535. Finally, the court stated that, because the physical restraint enhancement exists and “movements . . . will occur whenever a robber ‘physically restrains’ a victim,” the abduction enhancement must not apply to most cases of movement within the same building or else the abduction enhancement would be triggered in nearly every instance the physical restraint enhancement was triggered.⁸¹See id. at 535–36. Accordingly, the court ruled that the physical restraint enhancement and not the abduction enhancement applied to Hill’s case.⁸²Id. at 536.

b.    The Seventh Circuit: United States v. Eubanks

In United States v. Eubanks,⁸³593 F.3d 645 (7th Cir. 2010). the Seventh Circuit declined to affirm the application of the abduction sentencing enhancement when applied in the case of a victim being forced into another room of a store or in the case of a victim being dragged a short distance within a store.⁸⁴See id. at 653–54. During a robbery, one of Appellant Eubanks’ co-defendants “forced a store employee . . . [in]to a back room” of the store in order to get the store’s surveillance video.⁸⁵Id. at 648. During a different robbery, Eubanks “dragged a . . . store employee about six feet, from the back room of the store to the front room, causing minor injuries consisting of scratches and bruising.”⁸⁶Id. The court concluded that in both of the robberies the victim was not moved to “a different location,” and therefore the physical restraint enhancement and not the abduction enhancement should have been applied.⁸⁷See id. at 653–54. In support of its position, the court pointed to numerous prior cases where the physical restraint enhancement was applied to the movement of robbery victims within the establishment being robbed.⁸⁸See id. at 653 (citing United States v. Carter, 410 F.3d 942, 954 (7th Cir. 2005); United States v. Nelson, 137 F.3d 1094, 1112 (9th Cir. 1998); United States v. Doubet, 969 F.2d 341, 346 (7th Cir. 1992), and observing that in each of these cases the defendants were found only to have physically restrained their victims when they forced them by gunpoint from one part of a building to another). It is worth noting that in each of the cited cases the appellant contested the application of the physical restraint enhancement, and there was no suggestion whatsoever that the abduction enhancement should have been applied. See Carter, 410 F.3d at 953; Nelson, 137 F.3d at 1111–12; Doubet, 969 F.2d at 345. The court acknowledged the use of a flexible location standard in the Fourth Circuit’s decision in Osborne⁸⁹Eubanks, 593 F.3d at 653. but neither adopted nor rejected it.⁹⁰See id. It is ultimately unclear whether the Seventh Circuit considers the flexible standard acceptable or not. See id. Rather, the court distinguished Osborne from the facts at hand suggesting that “the distance and nature of the confinements in this case were materially different than in Osborne.”⁹¹Id. The court specifically mentions that the victims in Osborne were essentially taken hostage which was not the case in Eubanks. See id. The court suggested that “there may well be situations in which an abduction enhancement is proper even though the victim remained within a single building,” but they did not give any examples and said that “those facts [were] not present here.”⁹²Id. at 654.

c.    The Eleventh Circuit: United States v. Whatley

In United States v. Whatley,⁹³719 F.3d 1206 (11th Cir. 2013). the Eleventh Circuit ruled that Whatley’s movement of robbery victims around banks during armed robberies did not qualify as those victims being moved to “a different location.”⁹⁴Id. at 1222–23. Whatley perpetrated the armed robbery of four different banks over four years and in each robbery he moved bank employees all around the bank—in and out of different rooms and areas of the bank.⁹⁵See id. at 1208–11. Whatley argued that the abduction enhancement should not be applied to his robberies because movement within the same building does not constitute movement to a new location.⁹⁶See id. at 1221–22. The court agreed that the abduction enhancement was wrongly applied in Whatley’s case but refused to adopt a categorical bar on applying the enhancement when victims are moved around within the same building.⁹⁷Id. at 1222. Despite both Whatley and the government acknowledging that a circuit split exists on this issue, the court denied the existence of the circuit split and suggested that each circuit has chosen to take “a case-by case approach to the application of the enhancement.”⁹⁸Id. The court did not clearly distinguish Whatley’s case from precedent in other circuits; rather, the court simply held that the abduction enhancement did not apply in this case because different areas of a bank would normally not be understood to represent different locations.⁹⁹See Whatley, 719 F.3d at 1221–22. The court further noted that their understanding of the word location fit well with the dictionary definition of abducted and also served to “preserve[] a distinction between the sentencing enhancement for physical restraint and the sentencing enhancement for abduction.”¹⁰⁰Id. at 1222–23.

B.     Scholar-Proposed Solutions to the Split

Although this circuit split is not particularly new, there are only two academic pieces that specifically deal with this split and suggest a solution. The first article, by David Sandefer, suggests resolving the circuit split by instituting a sliding scale test composed of both a dangerousness and substantial distance test.¹⁰¹See Sandefer, supra note 26, at 2010. The second article, by Rebekah Nickerson, suggests resolving the circuit split by instituting a categorical test that would only apply the abduction enhancement when victims were forced to or from a distinct structure.¹⁰²See Rebekah Nickerson, Comment, Examining the Need for a Unified Theory Among the U.S. Federal Circuits in the Application of the Sentencing Enhancement of Abduction in Crimes of Robbery, 49 U. Balt. L. Rev. 417, 436 (2020).

1.    Sandefer’s Sliding Scale Approach

In his article, Sandefer recognizes the diversity in the case law on this issue and suggests a unified solution.¹⁰³SeeSandefer, supra note 26, at 1975. Sandefer suggests that two tests be used to determine whether or not a robbery victim was abducted: a dangerousness test and a substantial distance test.¹⁰⁴See id. at 2010. These tests are balanced against each other and applied on a sliding scale.¹⁰⁵See id. Thus, “an abduction occurring over a substantial distance would require comparatively less danger for the robbery abduction enhancement to apply . . . [while] 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.”¹⁰⁶Id. Sandefer suggests that his sliding scale test is useful because of its flexibility and the way that it “allows courts to target the most egregious abductions.”¹⁰⁷Id. at 2011. Ultimately, Sandefer argues that his sliding scale test helps to remedy the circuit split over the abduction enhancement in a useful way because it balances two important considerations in abduction law and would prevent overinclusion.¹⁰⁸See id. at 2013.

2.    Nickerson’s Distinct Structure Approach

In her article, Rebekah Nickerson argues for the need to find a unified test for the application of the abduction enhancement.¹⁰⁹See Nickerson, supra note 102, at 417–18. She argues that a unified test is necessary to resolve this split because the split creates sentencing disparities and creates “double counting” issues regarding the physical restraint enhancement.¹¹⁰See id. Nickerson advocates for a standard that would apply the abduction enhancement only in cases where “a victim is moved between distinct locations, such as from inside a structure to outside that structure.”¹¹¹Id. at 435. She states specifically that, in cases where “the defendant is merely forcing a victim to move to a separate part of the same structure for the purpose of restraining or controlling the victim during the course of the robbery,” the abduction enhancement should not apply.¹¹²Id.

Presented above are the approaches that define this circuit split and the approaches that have been proposed to resolve the split. None of these approaches, if universally adopted, would lead to the abduction enhancement being applied in a consistent manner that comports with the text of the Guidelines and differentiates the abduction enhancement from the physical restraint enhancement.

III.     Flaws in the Existing Approaches for Applying the Abduction Sentencing Enhancement

Each of the current and proposed approaches for applying the abduction sentencing enhancement is flawed. By defining location too broadly or abstractly, these approaches either ignore the text of the Guidelines or create the kind of sentencing discrepancy, unreliability, and disproportionality that the Guidelines were specifically designed to remedy.¹¹³See U.S. Sent’g Guidelines Manual § 1A1.3 (U.S. Sent’g Comm’n 2021); see also 28 U.S.C. § 991(b)(1)(B).

A.     Flaws in the Flexible Approach to the Application of the Abduction Enhancement

The flexible approach is one of the most problematic because of its overbroad understanding of what constitutes a location. The flexible approach requires courts to decide whether robbery victims were moved to a new location based on “case by case” determinations and not based on clear bright line rules.¹¹⁴See United States v. Hawkins, 87 F.3d 722, 727–28 (5th Cir. 1996). Consequently, courts can—and do—apply the abduction enhancement for any “forced movement over virtually any distance.”¹¹⁵Sandefer, supra note 26, at 1990. Without a limiting principle, courts can apply the enhancement in almost any case, even those like Reynos where victims are moved less than forty feet within the same building.¹¹⁶See United States v. Reynos, 680 F.3d 283, 290–91 (3d Cir. 2012).

This standard is so broad “that even forced movement from the toothbrush section to the toothpaste section within the same aisle would qualify for an abduction enhancement.”¹¹⁷Sandefer, supra note 26, at 1991. While that may seem like an exaggeration, it is not at all clear that it is. The Fifth Circuit has gone so far as to say that even forced movement into a nearby room of no “more than a few steps” is “sufficient to constitute the requisite forced accompaniment to a different location.”¹¹⁸United States v. Holiday, 582 Fed. App’x 551, 552 (5th Cir. 2014). Under the Fifth Circuit’s interpretation, it is hard to conceive of any movement in a robbery scenario, beyond simply forcing victims onto the ground in exactly the spot they were standing, that could not constitute movement to a different location. The inclusion of the physical restraint enhancement along with the abduction enhancement shows that the abduction enhancement was not meant to be applied in such a broad sweeping fashion.¹¹⁹See United States v. Hill, 963 F.3d 528, 535–36 (6th Cir. 2020).

The flexible approach fails for three main reasons. First, at least as generally applied, the results of the flexible approach do not match up with the definition of “abducted” given in the Guidelines.¹²⁰See U.S. Sent’g Guidelines Manual § 1B1.1 cmt. n.1(A) (U.S. Sent’g Comm’n 2021). Second, the flexible approach, even if it were not used to apply the abduction enhancement in cases of minimal movement, still gives courts too much discretion to decide what does and does not constitute a different location, potentially resulting in disparate sentencing. Third, the flexible approach swallows whole the physical restraint enhancement by having an overbroad definition of location and this may even allow for double counting.

1.    The Flexible Approach Does Not Conform to the Guidelines’ Definition of Abducted

The flexible approach does not inherently require courts to construe movement within the same building as movement to a different location, but courts seem to always apply the flexible approach in that way regardless.¹²¹See, e.g., Reynos, 680 F.3d at 290–91; United States v. Osborne, 514 F.3d 377, 390 (4th Cir. 2008). Problematically, this conflicts with the normal way that people would understand the word “location” in relation to a robbery. When talking about a place being robbed, people refer to the location as a whole.¹²²See Hill, 963 F.3d at 534. Someone would not normally say that a specific area of a store or bank was robbed; rather, they would say that the store or bank as a whole was robbed.¹²³See id. If you heard there was a bank robbery and asked someone what location was robbed, you would likely be surprised if they responded by saying “the teller windows were robbed” instead of saying “the Chase bank down the street was robbed.”¹²⁴See id. In fact, the inclusion of the words “different location” in the Guidelines’ definition of abducted suggests more than the minimal movement seen in some of these cases.¹²⁵See id. The definition of abducted in the Guidelines already contains the word “accompany,” which suggests movement.¹²⁶See id. (citing Whitfield v. United States, 574 U.S. 265, 267–68); U.S. Sent’g Guidelines Manual § 1B1.1 cmt. n.1(A) (U.S. Sent’g Comm’n 2021). The Guidelines say abduction occurs when victims are “forced to accompany an offender to a different location.”¹²⁷U.S. Sent’g Guidelines Manual § 1B1.1 cmt. n.1(A) (U.S. Sent’g Comm’n 2021). If short movements constitute enough movement to apply the enhancement, then there was no reason to include the requirement that a victim be moved to a different location because the word accompany would have already necessitated at least some small amount of movement.¹²⁸See Hill, 963 F.3d at 534 (citing Whitfield, 574 U.S. at 267–68).

The example of an abduction given in the Guidelines also suggests that movement within the same building does not constitute an abduction.¹²⁹See id. The Guidelines state that “a bank robber’s forcing a bank teller from the bank into a getaway car would constitute an abduction.”¹³⁰U.S. Sent’g Guidelines Manual § 1B1.1 cmt. n.1(A) (U.S. Sent’g Comm’n 2021). The Guidelines’ example sees the bank and the car as separate locations, but there is no suggestion that different areas within the bank could constitute separate locations.¹³¹See Hill, 963 F.3d at 534. While the example does not affirmatively rule out the possibility of areas in the bank constituting different locations, the fact that this was the example chosen to illustrate what an abduction is certainly suggests that different rooms in the same building are not different locations. The purpose of giving an example is to help guide those attempting to interpret or understand what you are saying. If the Guidelines meant for the abduction enhancement to be applied in cases of short movements within the same building, the example chosen is a very poor one because it would be a rather extreme example of abduction as opposed to a prototypical or lower bound example of abduction. Such a reading would gut the example of nearly all practical usefulness. It is highly unlikely that the Guidelines would use an example of abduction which includes not only being moved out of a building, but also includes being moved into a car if simply being moved to another room would also count as abduction. Thus, the Guidelines’ example is likely an example of what the Guidelines consider a typical abduction to be. That means the flexible approach applies the abduction enhancement far too broadly because the flexible approach readily applies the abduction enhancement in cases quite dissimilar to the example given in the Guidelines.¹³²See United States v. Reynos, 680 F.3d 283, 290–91 (3d Cir. 2012); United States v. Osborne, 514 F.3d 377, 390 (4th Cir. 2008).

2.    The Flexible Approach Offers Courts Too Much Discretion

Even if the flexible approach did not apply the abduction enhancement in cases of movement within the same building, it would still be problematic because it offers judges too much discretion. The Guidelines are an attempt at remedying sentencing disparity by making sentencing more certain and uniform.¹³³See 28 U.S.C. § 991(b); U.S. Sent’g Guidelines Manual § 1A1.3 (U.S. Sent’g Comm’n 2021). Offering courts broad and flexible discretion in determining what does or does not constitute movement to a different location directly conflicts with the goals of the Guidelines. Broad discretion and case-by-case analysis do not promote uniformity. The more courts are offered broad discretion, the more different judges will come to different conclusions. Because the flexible approach requires case-by-case analysis and gives broad discretion to courts, any court applying the flexible approach could come to a very different conclusion than any other court applying the same approach. Here it might be objected that, in fact, the flexible approach has achieved somewhat uniform results because it has resulted in the application of the enhancement in cases of relatively short, forced movements. While it is true that there may be some uniformity in how circuits have applied the flexible approach, as discussed in the previous Section, that uniformity is in contravention to the Guidelines’ definition of what it means to be abducted; uniformity in rulings that are wrong is not the kind of uniformity the Guidelines intended to promote.

Additionally, nothing about the flexible approach necessitates or guarantees uniform application of the approach. Because the flexible approach is a case-by-case analysis that rejects finding movement to a different location “mechanically based on the presence or absence of doorways, lot lines, thresholds, and the like[,]”¹³⁴United States v. Hawkins, 87 F.3d 722, 728 (5th Cir. 1996). a new circuit could adopt the flexible approach and apply it in a way that rejects the application of the abduction enhancement, except in cases in which victims were moved vast distances. Herein lies the true problem with the discretion offered by the flexible approach: because the flexible approach’s only standard seems to be that it rejects clear standards, two different circuits could potentially use this same approach to come to very different results.¹³⁵Id.

3.    The Flexible Approach Conflicts with the Application of the Physical Restraint Enhancement

The courts using the flexible approach have construed movement to a different location so broadly that they have left little, if any, space in which the physical restraint enhancement may operate.¹³⁶See Hill, 963 F.3d at 535. Generally, the physical restraint of robbery victims involves at least some movement of the victims, but, if even short forced movements constitute abduction, then the flexible approach allows for the almost complete erasure of the physical restraint enhancement.¹³⁷See id. The inclusion of the physical restraint enhancement in the Guidelines at all is unnecessary and futile if even small movements of victims could trigger the abduction enhancement.

The physical restraint enhancement increases an offense level by only two levels while the abduction enhancement increases it by four.¹³⁸U.S. Sent’g Guidelines Manual § 2B3.1(b)(4) (U.S. Sent’g Comm’n 2021). The Guidelines, in giving the physical restraint enhancement a lower offense level than the abduction enhancement, show that the abduction enhancement is considered more serious.¹³⁹See Hill, 963 F.3d at 535. By expanding the use of the abduction enhancement to nearly every case in which the physical restraint enhancement would have applied, the line between the two enhancements is blurred if not entirely removed. This works in contravention to the Guidelines’ attempt to differentiate between the two types of conduct and to grade their seriousness differently. There is an intuitive difference between being simply tied up in a back room and being taken outside and thrust into an escape vehicle.

In Osborne, there is a good example of this mentality. Osborne, the robber, was able to get both pharmacy workers to move throughout the store with him at knifepoint.¹⁴⁰United States v. Osborne, 514 F.3d 377, 382 (4th Cir. 2008). When Osborne attempted to coax the pharmacy workers outside though, they refused.¹⁴¹Id. Their refusal to accompany Osborne outside suggests they thought there was a cognizable difference between being forcibly moved throughout the store and being forced outside. Accordingly, the Fourth Circuit’s ruling that the pharmacy workers were abducted, despite not being taken outside, based on its application of the flexible approach should be seen as a problematic case in which a court applied the abduction enhancement too broadly and thus shortchanged the use of the physical restraint enhancement.¹⁴²Id. at 391.

Nickerson also describes one further potential issue with the flexible approach: cases decided by the flexible approach present problematic opportunities for double counting because the flexible approach has resulted in the abduction enhancement being applied in cases where the physical restraint enhancement is more applicable.¹⁴³Nickerson, supra note 102, at 434–35. Double counting is when an offender is punished twice for the same action.¹⁴⁴Id. at 433. Although the physical restraint enhancement and abduction enhancement are usually applied in a mutually exclusive manner, the Guidelines do not inherently necessitate this, and so it is theoretically possible that a robber could, under the flexible approach, be saddled with both a physical restraint enhancement and an abduction enhancement for moving a victim only a short distance.¹⁴⁵Id. at 435. This does not appear to have happened in any of the cases discussed in this Comment and therefore seems unlikely to occur, but the possibility is still worth consideration as a further potential problem created by the flexible approach. This is especially true because, were this to occur, it would seriously undermine the goals of sentencing fairness and uniformity forwarded by the Guidelines.¹⁴⁶28 U.S.C. § 991(b); U.S. Sent’g Guidelines Manual § 1A1.3 (U.S. Sent’g Comm’n 2021).

B.     Flaws in the Narrow Approach to the Application of the Abduction Enhancement

The greatest issue with the approach taken by the Seventh, Eighth, and Eleventh Circuits is the lack of a clear system for determining what kind of movement does or does not qualify as movement to a new location.¹⁴⁷See Sandefer, supra note 26, at 1992. Because each of these courts has interpreted “new location” more narrowly, future courts’ discretion will be partially curbed in making determinations about what constitutes a new location.¹⁴⁸See id. That is a good thing, but it is not enough. The lack of a clear and definitive approach for applying the abduction enhancement means that the discretion of judges will still need to be present to fill in the gaps. This lack of a clear and definitive approach is shown by the Eleventh Circuit’s contention that there was, in fact, no circuit split on the issue and that each court has adopted a case-by-case approach.¹⁴⁹United States v. Whatley, 719 F.3d 1206, 1222 (11th Cir. 2013). This is a bizarre contention, because while the Eleventh Circuit may have adopted some kind of case-by-case approach, it at no point suggests that it has adopted the flexible approach. The view of what constitutes a new location by the Eleventh Circuit is at odds with what constitutes a new location in other circuits that have adopted the flexible approach. The Eleventh Circuit specifically cites Osborne but makes no attempt to distinguish its fact pattern from the similar one in Osborne, despite reaching a result opposite to that reached by the Fourth Circuit in Osborne. All-in-all it is very unclear why exactly the Eleventh Circuit believes that there is no circuit split on this issue. If the narrow approach is defined by anything, it is defined in contrast to the flexible approach in that, under the narrow approach, movement within the same building usually will not constitute abduction.¹⁵⁰See United States v. Hill, 963 F.3d 528, 536 (6th Cir. 2020). But, there is no hard and fast rule on the subject, and the Eleventh Circuit suggesting that there is no circuit split at all shows that the narrow approach is so ill defined that it is not necessarily even clearly distinguishable from the flexible approach. Moreover, each circuit has left open the possibility that movement within the same building could constitute abduction, and each of them fails to offer future courts any clear criteria, test, or even factors which would indicate an instance in which forced movement within the same building would warrant the application of the abduction enhancement.¹⁵¹See, e.g., id.; Whatley, 719 F.3d at 1222; United States v. Eubanks, 593 F.3d 645, 654 (7th Cir. 2010).

This total lack of guidance for lower courts on how to apply the narrow approach coupled with the fact that the narrow approach might apply the abduction enhancement to movement within the same building means that the discretion offered to judges under this approach is even more likely to produce variable results than the discretion offered to judges under the flexible approach. Under the flexible approach there has developed some general uniformity in applying the abduction enhancement for practically any forced movement at all.¹⁵²See Sandefer, supra note 26, at 1990. That uniformity is uniformity in over-inclusiveness, but it is still more uniformity than the narrow approach is likely to create. Under the narrow approach, the abduction enhancement could be applied to movement within the same building, but there are no clear guidelines explicating when it should be applied, so it is likely that different district courts will come to varying conclusions.

For example, in Hill the Sixth Circuit did not consider the back room of a store a different location, but because the court did not explain what specific characteristics of the back room made it the same location as the store, a different court could rule in a similar case that the back room of a store is a different location than the store itself.¹⁵³Hill, 963 F.3d at 536. Even with Hill as binding precedent, a lower court could rule the other way in a similar case by simply distinguishing the case at hand from Hill. Without factors, rules, or even guidelines for determining what a different location is under the narrow approach, lower courts may distinguish their cases from upper court cases for practically any reason such as distance, visibility, the presence of certain kinds of walls or doors, dangerousness, etc. Additionally, the narrow approach does not even clearly say whether leaving or entering a building would constitute movement to a new location. Though it is likely most courts would agree that these things would constitute movement to a new location, it is not certain. Ultimately, because the narrow approach does not offer clear guidance for applying the abduction enhancement, district courts may well come to conclusions that conflict with other district courts and even higher courts—by being able to distinguish their cases for nearly any reason. This thwarts the uniformity, fairness, and certainty aimed for in the Guidelines.¹⁵⁴28 U.S.C. § 991(b); U.S. Sent’g Guidelines Manual § 1A1.3 (U.S. Sent’g Comm’n 2021).

C.     Flaws in the Proposed Academic Solutions

Both Sandefer and Nickerson have offered their own approaches for determining when forced movement is enough to trigger the abduction enhancement.¹⁵⁵See Nickerson, supra note 102, at 435; Sandefer, supra note 26, at 2010. Each approach has its strengths and weaknesses, but ultimately both approaches, like the approaches embraced by each of the circuits, lack the necessary specificity and clarity to ensure that they are administered in a uniform manner by courts.

1.    Flaws in Sandefer’s Approach

In his article, Sandefer criticizes some of the circuits for failing to adopt a clear rule for deciding what constitutes movement to a different location, but then, strangely, fails to suggest any such rule himself.¹⁵⁶Sandefer, supra note 26, at 2010. Instead, Sandefer suggests that courts use a sliding scale test, which combines a dangerousness and substantial distance test in order to determine whether forced movement to a new location has occurred.¹⁵⁷Id. He says the dangerousness test establishes that the movement was forced and the substantial distance test establishes that the movement was to a new location, thus fitting the definition of “abducted” found in the Guidelines.¹⁵⁸Id. While this approach is certainly inventive, it does not track as well with the Guidelines as he suggests, and it does not limit the discretion of courts enough. Ultimately, each of the tests has flaws and combining them into a sliding scale test creates even more problems.

a.    Flaws in the Dangerousness Test

The dangerousness test is unnecessary and unreliable as a method for determining whether someone was forcibly moved. The dangerousness test is unnecessary because the circuits do not disagree about what does or does not constitute forced movement.¹⁵⁹See, e.g., United States v. Eubanks, 593 F.3d 645, 648, 652 (7th Cir. 2010); United States v. Hawkins, 87 F.3d 722, 725–26 (5th Cir. 1996). The circuits likely agree on this because it is intuitively obvious when someone is being forced to move as opposed to when they are moving of their own volition. Any mention of something akin to a dangerousness test is also notably missing from the Guidelines’ definition of abducted or the text of the sentencing enhancement.¹⁶⁰U.S. Sent’g Guidelines Manual §§ 1B1.1 cmt. n.1(A), 2B3.1(b)(4)(A) (U.S. Sent’g Comm’n 2021). That is not to suggest that the Guidelines are dismissive of the danger posed to victims of a robbery. Rather, the Guidelines have already judged abduction to be more serious than physical restraint—likely because of the danger posed to a victim—and therefore ask simply whether the victim was abducted and not whether the movement of the victim was dangerous to determine whether the victim was abducted.¹⁶¹Id.

The dangerousness test also does a poor job of determining whether someone was forcibly moved. Sandefer gives an example of how his dangerousness test would function by applying it to Reynos.¹⁶²Sandefer, supra note 26, at 2001. He says that the dangerousness test would not be met in the Reynos case because, although the employees were forcibly moved at gunpoint, they were not placed in any more danger than they would have been in a normal robbery committed with a gun.¹⁶³Id. Sandefer may be right that the robbery victims were not placed in additional danger by their movement—though it is not certain that he is¹⁶⁴Sandefer declines to mention that, in the Reynos case, Reynos actually kicked in the bathroom door to get to the victims, which suggests that the attempt to move them actually did put them in more danger than a normal robbery scenario—in which they had remained behind the locked bathroom door—would have. See United States v. Reynos, 680 F.3d 283, 285 (3d Cir. 2012).—but that would only serve to show that his dangerousness test really has nothing to do with the forced movement requirement because it is not necessarily met in clear cases of forced movement like Reynos.¹⁶⁵See id. at 287–88. That would further divorce the dangerousness test from the text of the Guidelines, thus completely undermining its usefulness in solving the split over how the text of the Guidelines is to be interpreted.

The dangerousness test also serves to give courts far too much discretion in determining what constitutes more dangerous or less dangerous movement. Various courts may well apply the dangerousness test in different ways leading to nonuniform results. Sandefer acknowledges as much saying that courts may have to determine how much danger “is sufficient to satisfy the dangerousness test” and that there may be disagreements on this matter.¹⁶⁶Sandefer, supra note 26, at 2002. These potential disagreements that Sandefer talks about present exactly the same potential issues that the current circuit split presents. In effect, Sandefer would have the circuits trade one split for another.

b.    Flaws in the Substantial Distance Test

The substantial distance test, while narrower than the dangerousness test, still allows courts too much discretion. Sandefer’s substantial distance test does not look at just distance but also looks to duration and changes in environment.¹⁶⁷Id. at 2008–09. Sandefer suggests that his substantial distance test would help to curb judicial discretion, but, by making his test dependent upon multiple factors instead of establishing a clear categorical rule, he invites discretion instead of limiting it.¹⁶⁸Id. Sandefer points to circuit precedent—specifically rulings on what equates to a substantial distance—as the main vehicle through which the discretion of future courts would be limited.¹⁶⁹Id. While precedent may be helpful in at least partially standardizing the substantial distance test, future cases that are dissimilar from previous cases may produce varying results based on differing interpretations of the three factors of the test. Additionally, much, if not all, the discretion that may have been curtailed by precedent is brought back into the equation when the substantial distance test is merged into the sliding scale test along with the dangerousness test.

c.    Flaws in the Sliding Scale Test

Because Sandefer’s ultimate test is a sliding scale test instead of a two-part test, the final determination as to what constitutes forced movement to a different location is left almost completely up to judicial discretion. Sandefer suggests that the test “encapsulates the full meaning” of the Guidelines’ definition of abducted because each part of the sliding scale test corresponds to a part of the definition.¹⁷⁰Id. at 2010. As previously explained, the dangerousness test does not correspond well to the forced movement part of the definition, but the sliding scale test would present issues even if it did correspond well. Because the distance requirement is lowered the more dangerous the movement is and vice versa, the test does not ensure that both parts of the test are truly met. Rather, one part of the test can do the majority of the lifting for the test as a whole. This means that, theoretically, a very dangerous movement—such as being recklessly moved a few feet past operational industrial machinery or being seriously beaten and dragged a few feet—may qualify as an abduction under Sandefer’s test even though the victim was barely moved.¹⁷¹See id. Moreover, the weighing of both tests against each other is an almost completely discretionary action that would have to be undertaken by courts. Instead of curbing or excising judicial discretion from the application of the abduction enhancement, Sandefer’s approach enhances the problem by adding new areas in which broad judicial discretion will be required. Therefore, Sandefer’s approach is likely to produce multiple different results in similar cases.

2.    Flaws with Nickerson’s Distinct Structure Test

Nickerson’s suggested approach for resolving this circuit split is too vague and cursory to be consistently applied. Nickerson suggests a distinct structure test that would apply the abduction enhancement only when there was the “forced movement of victims . . . from, to, or in between separate and distinct structures.”¹⁷²Nickerson, supra note 102, at 436. As a basic rule for determining what constitutes forced movement to a new location, Nickerson’s approach seems sensible. It does make sense that movement to or from distinct structures would constitute movement to a new location. The problem with this approach though is that Nickerson offers no further guidance as to what exactly constitutes a distinct structure or whether a structure is required to apply the abduction enhancement. In fact, Nickerson only refers to her proposed test four times throughout her entire article.¹⁷³Id. at 417–19, 436. The two most glaring omissions in Nickerson’s test are the failure to define what a distinct structure is and the failure to account for outside robberies.

It is reasonable to assume that the phrase “distinct structures” refers, at a minimum, to individual separate buildings. Unfortunately, that seems to be the most that can be gleaned from the distinct structure test. Nickerson does not explain whether distinct structures can exist inside of buildings or even whether vehicles count as distinct structures. Under Nickerson’s standard, a court deciding a case in which a victim was moved from one apartment in an apartment building into another apartment would have no guidance for determining whether separate apartments in the same building constitute distinct structures. Similarly, a court, deciding a case in which a bank robber commits a carjacking to escape, would have to decide to apply or not apply the abduction enhancement based purely on its own discretion.

Hawkins is a great case for exposing this approach’s serious weaknesses. In Hawkins, two victims were forced to move across a parking lot and were almost forced into the back of a van.¹⁷⁴United States v. Hawkins, 87 F.3d 722, 725 (5th Cir. 1996). While in the real case both victims escaped, had they not escaped, Nickerson’s approach would not be able to offer clear guidance as to whether the abduction enhancement should be applied or not.¹⁷⁵Id. Considering the distinct possibility—as demonstrated by Hawkins—of robbery victims being transported by vehicles, the test’s failure to address whether the abduction enhancement should apply to such vehicle-related robberies is a large oversight. Without guidance from Nickerson’s distinct structure approach, courts will be forced to rely on their own discretion as they try to decide what is or is not a distinct structure. Such a system will result in courts coming to different conclusions and therefore ruling differently in similar cases, which will frustrate the uniformity aimed for by the Guidelines.¹⁷⁶U.S. Sent’g Guidelines Manual § 1A1.3 (U.S. Sent’g Comm’n 2021).

Hawkins also exposes the fact that Nickerson’s distinct structure test has no way to deal with robberies that occur outside. Under the distinct structure test, the abduction enhancement would not have been applied in Hawkins because the victims were robbed outside, moved around outside, and were never forced into a distinct structure.¹⁷⁷Hawkins, 87 F.3d at 724–25.This seems like a reasonable result given that the victims in Hawkins were only moved forty to fifty feet, but, even if the victims had been moved miles away, the distinct structure test would still necessitate that the abduction enhancement not be applied. Because a robbery in which a victim is moved miles away represents an obvious case where a victim was moved to a new location, the distinct structure test, in failing to account for such a possible scenario, is shown to be very underinclusive. Were courts to adopt the distinct structure test, they would likely have to abandon it in any case dealing with an outside robbery. That would leave courts on their own to determine what distance moved outside constitutes movement to a new location. This would likely lead to different decisions in cases where victims were moved similar distances and therefore, once again, the goal of the Guidelines to promote certainty, uniformity, and less sentencing disparity in the law would be frustrated.¹⁷⁸See 28 U.S.C. § 991(b); U.S. Sent’g Guidelines Manual § 1A1.3 (U.S. Sent’g Comm’n 2021).

IV.     A Proposed New Approach for Applying the Abduction Sentencing Enhancement

Because all the above approaches are either too vague or offer courts too much discretion, this Comment proposes an approach to the application of the abduction enhancement based on a clear and extensive categorical rule. The abduction enhancement should be applied only in cases where a victim is forced to move (1) across a property line while not inside a building; (2) into or out of a building; (3) into or out of a dwelling; (4) into or out of a vehicle; (5) further than 0.1 miles from where they initially were; or (6) when a victim, who is already in a vehicle, is forced to drive the offender somewhere. Were the Commission to adopt this categorical rule and place it in the Guidelines, this circuit split would be mended, and the law would become more uniform and predictable in this area.

Under this categorical rule the word “building” should be understood to refer to houses, stores, restaurants, office buildings, warehouses, apartment buildings, barns, stationary trailers, and other similar walled structures. The word “building” should not be construed to include things such as tents, pavilions, or gazebos. These are not included in the definition because there is little difference between being moved around a few paces outside and being moved in or out of a tent or gazebo-like structure. “Dwelling” should be understood to refer to a specific place or structure in which private individuals live such as a house, an apartment, a dormitory room, a stationary trailer, and other walled structures or areas in which private individuals live. Additionally, the word “vehicle” should be applied broadly to refer to cars, boats, planes, motorbikes, bikes, scooters, golfcarts, tractors, riding lawnmowers, and any other similar item used to transport people or things. This categorical rule, while extensive, can be applied easily, tracks well with the text of the Guidelines, and covers a wide variety of potential robbery scenarios.

This categorical rule excels because of how it will make the application of the abduction enhancement uniform and predictable. This test offers quick and easy answers for each of the cases discussed in this Comment. In Hawkins for example, this rule would not apply the abduction enhancement because the victims were moved only forty to fifty feet within the same parking lot and were not forced into or out of a vehicle.¹⁷⁹Hawkins, 87 F.3d at 726. Had the victims been forced into a vehicle though, then the categorical rule would apply the abduction enhancement. This illustrates how the categorical rule is superior to an approach like the narrow approach. Because the narrow approach has been used to reject the application of the abduction enhancement when victims were moved around within the same building, it seems likely that the movement within the same parking lot that occurred in Hawkins would not be enough to trigger the abduction enhancement.¹⁸⁰Id. Unfortunately, it is impossible to be certain because it could be that the Hawkins case possesses those unknown qualities which would cause a court to rule that the victims were moved to a new location under the narrow approach. Because the courts that follow the narrow approach have not offered any clear guidelines for applying the approach to a case like Hawkins—or even for determining when a victim has been moved to a new location within the same building—the best that can be done is to guess that the abduction enhancement probably would not be applied here, but it is impossible to be sure. The categorical rule simply does not have that issue in this case because it is both broad and specific enough to ensure that its application to cases like Hawkins is easy and creates predictable and uniform results.

The categorical rule also stays closer to the text of the Guidelines than other approaches like the flexible approach and Sandefer’s sliding scale approach. Under the flexible approach the abduction enhancement was applied in Hawkins despite the victims not being moved into or out of a vehicle. Under the sliding scale approach, it is almost certain that the abduction enhancement would have been applied in Hawkins because the robbery was extremely dangerous and resulted in the victims being shot despite them being moved only a short distance.¹⁸¹Id. at 725; see Sandefer, supra note 26, at 2010. Both of these applications of the abduction enhancement clash with the Guidelines’ example of an abduction which includes a bank teller being forced out of a bank and “into a getaway car.”¹⁸²U.S. Sent’g Guidelines Manual § 1B1.1 cmt. n.1(A) (U.S. Sent’g Comm’n 2021). The example seems to suggest that short movements without a movement into or out of something like a car or building is not an abduction and neither the example nor definition of “abducted” mention dangerousness as a factor.¹⁸³Id. The categorical rule tracks better with the Guidelines’ example than the flexible or sliding scale approaches do. The flexible and sliding scale approaches would apply the abduction enhancement in Hawkins regardless of whether the victims were forced into the vehicle, whereas the categorical rule would have applied the abduction enhancement only if the victims were forced into the vehicle like the bank teller in the example.

Because the categorical rule is so extensive and specific, there will be few instances where courts will be forced to go “off-book” and decide whether the abduction enhancement should be applied or not based purely on their own discretion. That is a significant improvement over Nickerson’s distinct structure test which failed to address what a distinct structure was, whether robberies involving vehicles could trigger the abduction enhancement, and whether outdoor robberies could trigger the abduction enhancement. The categorical test, by defining what constitutes a building, dwelling, and vehicle, and by having a property line and distance trigger for the abduction enhancement, ensures that it can be easily applied by courts to robberies like car jackings, apartment robberies, and outdoor robberies, all of which the distinct structure test could not be easily applied to. It is impossible to cover every scenario imaginable, but the categorical rule is extensive enough to cover nearly all common robberies and to still be of use as a template for how to decide cases involving any specific scenario that the categorical rule does not directly apply to.

It is conceivable that some might object to this Comment’s proposal as overly rigid and unchecked by judicial discretion and therefore likely to be under or overinclusive. It is precisely to avoid being underinclusive that the rule is so extensive and thorough. The categorical rule offers many ways for the abduction enhancement to be triggered and is applicable to numerous potential robbery scenarios including robberies involving boats, robberies in which victims are forced into different apartments in the same apartment building, and even robberies in which victims are moved long distances outside or inside a large structure without crossing a property line.¹⁸⁴There is not anything particularly special about the 0.1-mile distance trigger for the abduction enhancement, but a line needed to be drawn somewhere to cover precisely these kinds of situations—in which a person is robbed and abducted outside or inside a large structure but not moved across a property line or into or out of a building, vehicle, etc. Ultimately, 0.1 miles was chosen as an appropriate point to trigger the abduction enhancement because it is a distance that is easily walkable in a few minutes, and it is also a point at which a person would likely say they have been taken from where they originally were. Though the specific line may be somewhat arbitrary, it was not possible to draw a line that was not at least somewhat arbitrary. Moreover, it was better to have a specific line than to ask courts to decide their own standards for outdoor movement especially after offering a bright line standard for the abduction enhancement’s application in nearly every other scenario. It is possible that, despite the categorical rule’s breadth, there are still a few cases that fall through the cracks. But the general uniformity, ease of use, and close adherence to the text of the Guidelines offered by the categorical approach all serve as benefits that outweigh the small handful—if that—of cases in which the categorical approach would not apply the abduction enhancement when it should.

As for the rule being potentially overinclusive, it could certainly cause the abduction enhancement to be applied in cases where victims were moved even just a few steps such as when a victim is moved out of a building or over a property line. One could argue that this an example of where the categorical rule is overinclusive and the discretion of courts could serve as a corrective, but this argument is incorrect for three reasons.

First, it is not at all clear that the abduction enhancement should not be applied in cases where victims were moved only a short distance over a threshold. Thresholds like doors and property lines are the way that society differentiates different areas and locations. Using them to define when the abduction enhancement should be applied is reasonable even in cases where the victim is moved only a short distance because the Guidelines’ definition of abduction does not focus on distance traveled but rather focuses on whether a victim has been moved to a new location.¹⁸⁵U.S. Sent’g Guidelines Manual § 1B1.1 cmt. n.1(A) (U.S. Sent’g Comm’n 2021). Moreover, the Guidelines’ example of what it means to be abducted does not mention how far the hypothetical bank teller is moved but it does mention that the teller is moved over the threshold of the bank and the threshold of the getaway car.

Second, even if the categorical rule is slightly overinclusive it is significantly less overinclusive than other approaches like the flexible or sliding scale approach. The flexible approach would apply the abduction enhancement in nearly any case in which a victim was forced to move at all.¹⁸⁶See Sandefer, supra note 26, at 1990–91. On the other hand, the sliding scale approach would, in contravention to the text of the Guidelines, apply the abduction enhancement whenever movement of a victim was seriously dangerous.¹⁸⁷See id. at 2010. Additionally, even if the categorical rule were overinclusive it is not so overinclusive so as to make the physical restraint enhancement useless or mere surplusage. Because the categorical rule is a clear and definitive rule, it creates a distinct line between the abduction enhancement and the physical restraint enhancement. As such, any over-inclusivity of the categorical rule should not cause any significant worry.

Third, adding in more discretion for the courts would likely not cure any over-inclusivity of the categorical rule. The fact that the both the Fifth and Seventh Circuits have clearly decided that minimal movement into or out of a building qualifies as movement to a new location makes it doubtful that offering courts more discretion would cause them to decide the other way in cases where the categorical rule would apply the abduction enhancement to minimal movement.¹⁸⁸See United States v. Davis, 48 F.3d 277, 279 (7th Cir. 1995); United States v. Reed, 26 F.3d 523, 527–28 (5th Cir. 1994). Additionally, the Guidelines have provided so many different enhancements, adjustments, and determinations as a way of maintaining the benefits of judicial discretion while combating the issues it created like wide sentencing disparities.¹⁸⁹See 28 U.S.C. § 991(b). Moreover, the whole reason this circuit split exists in the first place is because courts had too broad discretion in deciding how to apply the abduction enhancement and came up with different standards for its application. It is unlikely that offering courts more discretion will help to mend the split that their discretion originally created.

Conclusion

The circuit court split over the application of the abduction sentencing enhancement for robbery is an important issue because it allows for significant sentencing disparities and undermines the reliability, fairness, and uniformity of the law. This is problematic because these are all problems that the Guidelines were designed to remedy not foster.¹⁹⁰See id.; U.S. Sent’g Guidelines Manual § 1A1.3 (U.S. Sent’g Comm’n 2021). The standards offered by the circuit courts are either overbroad, inconsistent, or formless. Similarly, the suggestions for a unified standard that the legal literature has provided are also lacking either because they offer courts too much discretion, are not in line with the text of the Guidelines, or are too vague. Therefore, this Comment suggests that the Commission adopt and place the extensive but clearly defined categorical rule, explained in this Comment, into the Guidelines. The categorical rule would apply the enhancement only in cases where a victim is forced to move (1) across a property line while not inside a building; (2) into or out of a building; (3) into or out of a dwelling; (4) into or out of a vehicle; (5) further than 0.1 miles from where they initially were; or (6) when a victim, who is already in a vehicle, is forced to drive the offender somewhere. Were the Commission to adopt this categorical rule and place it in the Guidelines, the categorical rule would work to mend the current circuit split and serve as an easily applied test which would reduce sentencing disparity and promote greater certainly, fairness, and uniformity in the law.