By John R. Byrne
It happens enough in real life that we've all seen it playacted on T.V. or in the movies. Man (or woman) walks into a convenience store, pulls a gun on the cashier, demands money, gets money, and walks out. Question: in such a situation, has the cashier been "physically restrained"? Because if the answer is "yes," under the federal guidelines the man (or woman) in this hypothetical should receive a two-level enhancement under USSG § 2B3.1(b)(4)(B).
Under current Eleventh Circuit precedent, the answer is "yes,” the idea being that the threat with a weapon is sufficient to freeze the person in place. That’s something that Judges Rosenbaum, Newsome, and Abudu think should be revisited by the Eleventh Circuit as a whole. That's what they discussed yesterday in US v. Delon, which we excerpt below. Judge Newsome even turned again to ChatGPT and other AI-powered language models for their thoughts on the phrase "physically restrained." Interesting take.
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Deleon by John Byrne on Scribd
This question is for the appellate specialists out there. Aren't Circuit Judges confined to the record on appeal? Judge Newsome is doing what the rest of us do, so I get it. And before knee-jerks out there infer offense that it not implied, I am not attacking. It's just that Judge Newsome's concurrence reads like the retelling of his evidentiary investigation - almost like an expert witness talking about his survey methodologies in a trademark case involving consumer perception of the meaning of a trademark. I thought (and I am neither an appellate lawyer nor do I practice criminal law) that appellate judges aren't supposed to do that sort of thing. Thoughts?
ReplyDeleteNewsome has too much time on his hands. Ask the average person who had a knife or gun stuck in his ribs if he felt physically restrained
DeleteI wouldn't say his analysis and use of AI concerns evidence. Trying to divine the meaning of words in a statute and utilizing different research tools to do so is legal analysis. He is analyzing a legal issue, not investigating the underlying facts of the case.
ReplyDeleteNothing worse than when judges start trying to legislate. Stick to precedent it's what we all learned in our first year of law school.
ReplyDelete