United States v. Parish McNeil , 539 F. App'x 190 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4796
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PARISH KEJUAN MCNEIL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:11-cr-00161-BO-4)
Submitted: July 31, 2013 Decided: September 9, 2013
Before KING, AGEE, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dennis H. Sullivan, Jr., SULLIVAN & WAGONER LAW FIRM,
Wilmington, North Carolina, for Appellant. Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Joshua L.
Rogers, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Parish Kejuan McNeil appeals the eighty-seven month
sentence he received after he pled guilty to interference with
commerce by robbery, and aiding and abetting, 18 U.S.C. §§ 1951,
2 (2006). McNeil contends that the district court erred in
applying enhancements for a firearm being “otherwise used”
during the robbery, see U.S. Sentencing Guidelines Manual
§ 2B3.1(b)(2)(B) (2011), and physical restraint of the victims,
USSG § 2B3.1(b)(4)(B). We affirm.
McNeil and three co-defendants robbed a mini-mart in
Leland, North Carolina. Co-defendant Michael Hasty carried a
handgun. He ordered two customers who were at the counter to
move away from the counter and no further. He then pointed the
gun at the two clerks, one at the register and one on a stool at
the end of the counter. McNeil or another defendant grabbed the
clerk on the stool by the arm and forced her to move to the
register. At gun point, Hasty ordered the clerks to hand over
all the money or be killed. The robbers then fled.
At his sentencing, McNeil objected to an enhancement
recommended in the presentence report for a firearm having been
“otherwise used” during the offense. The enhancement applies
when the firearm is not discharged, but the conduct in question
is more than brandishing, displaying, or possessing the firearm.
See USSG § 2B3.1 cmt. n.1, § 1B1.1 cmt. n.1(I). “Brandished,”
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as defined in Application Note 1(C) to § 1B1.1, means that “all
or part of the weapon was displayed, or the presence of the
weapon was otherwise made known to another person, in order to
intimidate that person.” McNeil also objected to an enhancement
for restraint of a victim. In this circuit, the enhancement
applies where a victim’s movements are restricted at gunpoint.
See United States v. Wilson, 198 F.3d 467 (4th Cir. 1999);
United States v. Stokley, 881 F.2d 114 (4th Cir. 1989). The
district court overruled both objections. On appeal, McNeil
challenges the increases for a firearm “otherwise used” and for
physical restraint of the victims.
A firearm is “otherwise used” under USSG
§ 2B3.1(b)(2)(B) when use of the gun goes beyond brandishing and
becomes actually menacing. See United States v. LaFortune, 192
F.3d 157, 161-62 (1st Cir. 1999). McNeil cites LaFortune to
explain the distinction, but relies on a contrary decision,
United States v. Moerman, 233 F.3d 379 (6th Cir. 2000), in which
the Sixth Circuit held that pointing a firearm in a threatening
manner did not amount to more than brandishing. However, the
Sixth Circuit has since held that, following Amendment 601 to
the definition of brandished in USSG § 1B1.1, “[p]ointing a gun
while telling someone what to do obviously goes beyond what now
constitutes brandishing[.]” United States v. Bolden, 479 F.3d
455, 463 (6th Cir. 2007); see also United States v. Zenone, 1998
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WL 497297 at *8 (4th Cir. Aug. 10, 1998) (Nos. 97-4190, 97-4179)
(adopting similar reasoning in decisions from the Ninth,
Seventh, and Third Circuits). McNeil provides no persuasive
contrary authority. Therefore, we conclude that the district
court did not err in finding that the enhancement applied in
McNeil’s case.
Next, McNeil points out that the term “physically
restrained,” see USSG § 2B3.1(b)(4)(B), is defined in
Application Note 1(K) to § 1B1.1 as “the forcible restraint of
the victim such as by being tied, bound, or locked up,” whereas
the background commentary to § 2B3.1 states more definitely that
the enhancement applies when a victim “was physically restrained
by being tied, bound, or locked up.” He acknowledges that the
§ 1B1.1 definition is not limited to the examples given. See
United States v. Stokley, 881 F.2d 114, 116 (4th Cir. 1989). In
fact, while “[s]ome circuits view § 2B3.1(b)(4)(B) narrowly,
applying the enhancement only when the defendant uses the gun to
restrain the victim through bodily contact or some type of
confinement,” other courts, including this court, view the
enhancement “broadly, applying it when the defendant points the
gun at the victim, thereby restricting the victim’s movements
and ensuring the victim’s compliance with the desires of the
defendant.” United States v. Dimache, 665 F.3d 603, 607 (4th
Cir. 2011), cert. denied, 132 S. Ct. 1815 (2012); see also
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Wilson, 198 F.3d at 472 (holding that victim was physically
restrained when she was prevented at gunpoint from leaving her
car until defendants took her money and took control of her
car). In Dimache, two bank tellers who were “ordered to the
floor at gunpoint were prevented from both leaving the bank and
thwarting the bank robbery[,]” and thus were physically
restrained within the meaning of § 2B3.1(b)(4)(B). 665 F.3d at
608.
Relying on United States v. Mikalajunas, 936 F.2d 153(4th Cir. 1991), McNeil contends that the enhancement does not
apply in his case because the victims were restrained briefly,
just long enough for the robbery to be completed. We conclude
that Dimache and Wilson control, that Mikalajunas is inapposite,
and that the district court correctly applied the enhancement
for physical restraint.
We therefore affirm the district court’s judgment. 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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