United States v. Baylor , 296 F. App'x 360 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4098
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MELVIN LEWIS BAYLOR,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J.
Conrad, Jr., Chief District Judge. (3:05-cr-00282-RJC-CH-1)
Submitted: September 30, 2008 Decided: October 21, 2008
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, LAW OFFICES OF RANDOLPH M. LEE, Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Adam Morris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Melvin Lewis Baylor pled guilty to conspiracy to
commit robbery affecting interstate commerce, 18 U.S.C.
§ 1951(a) (2000) (Count One); aiding and abetting a robbery
affecting interstate commerce, 18 U.S.C. §§ 1951, 2 (2000)
(Count Two); and brandishing and discharging a firearm in
furtherance of a crime of violence, 18 U.S.C.A. § 924(c) (West
2000 & Supp. 2008) (Count Three). He received a sentence of
thirty-six months imprisonment for Counts One and Two, and a
consecutive ten-year sentence for the § 924(c) count. Baylor
appeals his sentence, contending that the district court erred
in applying a two-level enhancement for physical restraint, U.S.
Sentencing Guidelines Manual (USSG) § 2B3.1(b)(4)(B) (2006). We
affirm.
Baylor, Trisco McFarland, and Nathan Cuthbertson
together robbed a shoe store in Charlotte, North Carolina.
Cuthbertson and McFarland both carried firearms. McFarland went
to the back of the store and robbed two customers while Baylor
and Cuthbertson went up to the store manager, Shawn Miller, who
was at the cash register. Miller was also armed, but concealed
his pistol under his shirt. Cuthbertson put his gun at the back
of Miller’s head and told Miller to open the cash drawer. He
told Miller to hand him a paper bag that was on the shelf below
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the cash drawer, and then Cuthbertson handed the bag to Baylor,
who put money into it.
While Cuthbertson was distracted, Miller drew his gun
and shot both Cuthbertson and Baylor multiple times.
Cuthbertson was fatally wounded, but McFarland and Baylor
escaped and stole a car at gunpoint from two men who had just
parked in the parking lot.
Before sentencing, Baylor objected unsuccessfully to
the enhancement recommended in the presentence report for
restraint of a victim, arguing that Miller was not restrained in
a way that would trigger the enhancement under § 2B3.1(b)(4)(B).
The district court found that the enhancement was warranted
under United States v. Wilson, 198 F.3d 467 (4th Cir. 1999)
(holding that victim was physically restrained when gun was
placed to her head). The court granted the government’s motion
for a substantial assistance departure and imposed a sentence of
thirty-six months imprisonment for Counts One and Two, and a
mandatory consecutive sentence of ten years for the § 924(c)
count, for a total sentence of 156 months.
Baylor appeals his sentence, contending that the
sentence is procedurally unreasonable because the court
incorrectly applied the enhancement for physical restraint. A
sentence is reviewed for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 128 S. Ct. 586, 597
3
(2007); see also United States v. Go, 517 F.3d 216, 218 (4th
Cir. 2008). The appellate court must determine whether the
district court correctly calculated the advisory guideline
range, because a failure to do so constitutes a “significant
procedural error” that may render a sentence unreasonable.
Gall, 128 S. Ct. at 597. The appellate court (unlike the
district court) may then apply a presumption of reasonableness
to a sentence within the guideline range. Go, 517 F.3d at 218;
see also Gall, 128 S. Ct. at 597; Rita v. United States, 127 S.
Ct. 2456 (2007).
Application Note 1 to § 2B3.1 defines “physically
restrained” by adopting the definition of the term set out in
Application Note 1(K) to USSG § 1B1.1, that is “the forcible
restraint of the victim such as by being tied, bound, or locked
up.” * The examples given in the Note are illustrative only. See
United States v. Johnson, 492 F.3d 254, 257 (4th Cir. 2007)
(citing United States v. Stokley, 881 F.2d 114, 116 (4th Cir.
1989), and noting with approval the decision in Wilson that
“holding a gun to a victim’s head to prevent her from leaving
*
The same definition is incorporated into USSG § 3A1.3,
which provides a two-level adjustment for restraint of a victim
where the applicable guideline does not have an enhancement for
that conduct.
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her carjacked vehicle” was “sufficiently akin to the examples to
constitute forcible restraint”).
Baylor contends that in his case the enhancement was
error based on decisions from the Ninth, Second, and Fifth
Circuits holding that pointing a gun at a victim to restrict his
movement is not physical restraint. See United States v.
Parker, 241 F.3d 1114, 1118-19 (9th Cir. 2001); United States v.
Anglin, 169 F.3d 154, 164 (2d Cir. 1999); United States v.
Hickman, 151 F.3d 446, 461 (5th Cir. 1998). However, the First
Circuit recently held that pointing a gun at a victim, while
simultaneously placing a hand on his neck and shoulder to force
him to kneel and stating, “I do not want to hurt you,”
constituted physical restraint. United States v. Ossai, 485
F.3d 25, 33 (1st Cir.), cert. denied, 128 S. Ct. 279 (2007).
Regardless of how other circuits view the issue, in
this Circuit the law is clear that use of a gun to restrain a
victim may constitute physical restraint within the meaning of
§ 2B3.1. Because our precedents are controlling, the district
court did not err in finding that the victim in this case was
physically restrained when Baylor’s co-defendant placed a gun at
his neck.
Baylor suggests that the holding in Parker should be
applied in his case. However, a panel of this court may not
overrule a prior panel. United States v. Simms, 441 F.3d 313,
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318 (4th Cir.), cert. denied, 127 S. Ct. 233 (2006). He also
suggests that our decision in United States v. Mikalajunas, 936
F.2d 153 (4th Cir. 1991), is more applicable to his case than
Johnson, because Johnson involved an obvious example of physical
restraint. In Mikalajunas, the defendant was convicted of being
an accessory after the fact to second degree murder of a victim
who was stabbed to death. We held that “a brief holding as part
of a stabbing” did not meet the guideline definition of
restraint. Mikalajunas, 936 F.2d at 156. In this case, we are
satisfied that the facts support the enhancement.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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