United States v. Lloyd , 7 F. App'x 291 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
JASON LLOYD, a/k/a Lonnie Johnson,  No. 00-4637
a/k/a Jason Maxwell, a/k/a Devon
Jason Maxwell,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-99-459)
Submitted: March 30, 2001
Decided: April 24, 2001
Before WIDENER and WILKINS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Ann Briks Walsh, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Brucie Howe Hendricks, Assistant United States Attorney, Charles-
ton, South Carolina, for Appellee.
2 UNITED STATES v. LLOYD
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jason Lloyd pled guilty to robbery, 18 U.S.C. § 1951(a) (1994)
(Count One), using and carrying a firearm in a crime of violence, 18
U.S.C.A. § 924(c) (West 2000) (Count Two), and being a felon in
possession of a firearm, 18 U.S.C.A. § 922(g)(1) (West 2000) (Count
Three). He received a sentence of sixty months for Counts One and
Three, and a consecutive sixty-month sentence for Count Two. Lloyd
appeals his sentence, alleging that the district court erred in giving
him an enhancement for physical restraint of a victim under U.S. Sen-
tencing Guidelines Manual § 2B3.1(b)(4)(B) (1998).* We affirm.
Lloyd entered a motel in Charleston, South Carolina, wearing a
mask and armed with a revolver. He ordered the night clerk into the
office at gunpoint, and demanded money. Not satisfied with the
money from the cash drawer, Lloyd demanded more. The clerk went
with Lloyd to the motel owner’s apartment next to the office. The
clerk knocked on the door and Usha Patel, the owner’s wife, opened
it. When she saw Lloyd, she tried to shut the door, but Lloyd gained
entry and demanded money. Mrs. Patel gave Lloyd the contents of a
box containing several days’ receipts, as well as her purse and two
watches. The owner, Vibhash Patel, who was recovering from a
recent operation, was also in the room. As Lloyd left, he ordered all
three victims to lie on the floor.
Lloyd does not challenge the district court’s factual determinations
concerning the sentence. The district court’s interpretation of a guide-
line is a legal issue reviewed de novo. United States v. Singh, 54 F.3d
1182, 1190 (4th Cir. 1995). Application Note 1 to § 2B3.1 provides
*Because Lloyd was also sentenced for the § 924(c) conviction, no
enhancement for possession or use of the firearm could be applied under
§ 2B3.1. See USSG § 2K2.4, comment. (n.2).
UNITED STATES v. LLOYD 3
that the term "physically restrained" is defined in the commentary to
USSG § 1B1.1. Application Note 1(i) to § 1B1.1 states that "‘physi-
cally restrained’ means the forcible restraint of the victim such as
being tied, bound, or locked up." We have held that physical restraint
is not limited to the examples listed in § 1B1.1. United States v. Wil-
son, 198 F.3d 467, 471-72 (4th Cir. 1999), cert. denied, 529 U.S.
1076 (2000). We have further held that "a victim need not be tied or
bound up so that his movement is completely restricted;" instead, he
may be physically restrained by being "locked up," in some manner.
United States v. Stokley, 881 F.2d 114, 116 (4th Cir. 1989).
A two-level adjustment may also be made under USSG § 3A1.3
(Restraint of Victim) when the unlawful restraint is neither an element
of the offense nor incorporated into the guideline applicable to the
offense. See United States v. Mikalajunas, 936 F.2d 153, 156 (4th Cir.
1991) (adjustment may be warranted for act which adds to the basic
crime).
Lloyd contends that the district court erred in applying the
enhancement because he did not forcibly restrain his victims, and his
threat of physical violence simply satisfied the statutory elements of
robbery, but otherwise added nothing to the crime. We find no merit
in his position. First, physical restraint is not an element of the offense
of robbery under § 1951(a) (the Hobbs Act). See United States v. Buf-
fey, 899 F.2d 1402, 1403 (4th Cir. 1990) (setting out elements). The
offense can be committed without physically restraining the victim.
Second, because the applicable guideline, § 2B3.1, incorporates
physical restraint as a specific offense characteristic, it is not neces-
sary to determine whether the restraint "adds to the basic crime" (as
in Mikalajunas, where an adjustment under § 3A1.3 was at issue), but
only whether physical restraint occurred during the robbery.
Last, we agree with the district court that Lloyd used his gun to
physically restrict the victims’ movements. Lloyd pointed the gun at
the clerk, forced him into the office and then forced him to lead Lloyd
to the Patels’ apartment, and finally forced all three victims to lie on
the floor before he left. See Wilson, 198 F.3d at 472 (victim physi-
cally restrained by being prevented at gunpoint from leaving car until
defendants took her money and got control of car); United States v.
4 UNITED STATES v. LLOYD
Thompson, 109 F.3d 639, 641 (9th Cir. 1997) (defendant forced one
victim to lie on floor and another victim to walk short distance at gun-
point). But see United States v. Drew, 200 F.3d 871, 880 (D.C. Cir.
2000) (finding restraint through bodily contact or confinement neces-
sary); United States v. Anglin, 169 F.3d 154, 164-65 (2d Cir. 1999)
(same).
Consequently, we affirm the sentence imposed by the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED