United States v. Arvin Red Star , 451 F. App'x 708 ( 2011 )

FILED
NOT FOR PUBLICATION OCT 5 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30351
Plaintiff - Appellee, D.C. No. 4:10-cr-00060-SEH
v.
MEMORANDUM *
ARVIN BON RED STAR,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted September 27, 2011 **
Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
Arvin Bon Red Star appeals from his jury-trial conviction and 216-month
sentence for aggravated sexual abuse, in violation of 18 U.S.C. §§ 1153(a) and
2241(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Red Star contends that the district court improperly applied a two-level
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
enhancement under U.S.S.G. § 3A1.3 for restraining his victim during the
commission of the offense. Red Star argues that there was no evidence of physical
restraint presented at trial, and that any evidence of physical restraint had already
been taken into account by the statute and the sentencing Guidelines.
The record supports the district court’s application of the enhancement
because the evidence shows that Red Star physically restrained the victim in such a
way that “added to the basic crime.” United States v. Old Chief, 571 F.3d 898, 901
(9th Cir. 2009); United States v. Foppe, 993 F.2d 1444, 1452-53 (9th Cir. 1993)
(defining physical restraint). Restraint of the victim is not an element of the
offense of aggravated sexual abuse nor was it was incorporated in the aggravated
sexual abuse offense Guideline applied here. See 18 U.S.C. § 2241; U.S.S.G.
§ 2A3.1. Accordingly, the district court did not err by increasing Red Star’s base
offense level two levels under § 3A1.3. See U.S.S.G. § 3A1.3 cmt. n.2; Old Chief,
571 F.3d at 900.
AFFIRMED.
2 10-30351