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
3 comments:
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?
I 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.
Newsome 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
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