Fourth Circuit distinguishes physical restriant from force in Guidelines case

In United States v. Johnson, Rodney K. Johnson, Jr. pled guilty to two counts of aggravated sexual abuse after he raped and assisted another man in raping a woman. On appeal, Johnson argued that he should not have received a two-level enhancement for physical restraint of the victim under the Guidelines, § 3A1.3. He argued that the physical restraint factor was taken into account through his offense guideline, § 2A3.1, which required a four-level enhancement for forcible rape. The panel disagreed, holding that physical restraint is not the same thing as force. In other words, forcible rape may be committed without resort to physical restraint, as defined in the guidelines.

Under this definition the force element in § 2241(a)(1) may be satisfied without evidence of physical restraint similar to the examples (being tied, bound, or locked up) in the guidelines’ definition of physical restraint. In other words, the "use of force does not necessarily entail physical restraint." Arcoren, 929 F.2d at 1248. For example, a rapist could inflict blows upon his victim until she submits to a sexual act without restraining her in the manner contemplated by the physical restraint guideline, § 3A1.3. See United States v. Myers, 733F.Supp. 1307, 1309 (D. Minn. 1990). Similarly, an application of force to open the victim’s legs for intercourse has been deemed sufficient to satisfy § 2241(a)(1)’s force element, see United States v.
Williams,89 F.3d 165, 166, 168 (4th Cir. 1996), but this force would not constrain the victim’s movement in the manner contemplated by the physical restraint guideline.