United States v. Elianer Dimache

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-4090
ELIANER DIMACHE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Terry L. Wooten, District Judge.
(4:10-cr-00714-TLW-1)
Argued: October 28, 2011
Decided: December 7, 2011
Before KEENAN and WYNN, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote
the opinion, in which Judge Keenan and Judge Wynn joined.
COUNSEL
ARGUED: William Fletcher Nettles, IV, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Florence, South Carolina,
for Appellant. Alfred William Walker Bethea, Jr., OFFICE
OF THE UNITED STATES ATTORNEY, Florence, South
2 UNITED STATES v. DIMACHE
Carolina, for Appellee. ON BRIEF: William N. Nettles,
United States Attorney, Columbia, South Carolina, for Appel-
lee.
OPINION
HAMILTON, Senior Circuit Judge:
The Robbery Guideline provides for a two-level enhance-
ment to a defendant’s base offense level "if any person was
physically restrained to facilitate the commission of the
offense or to facilitate escape." U.S. Sentencing Guidelines
Manual (USSG) § 2B3.1(b)(4)(B). The issue presented in this
appeal is whether the district court erred in sentencing the
appellant, Elianer Dimache, when it applied this enhancement
to his base offense level. For the reasons stated below, we
conclude the district court properly applied the enhancement.
Accordingly, we affirm.
I
The facts are not in dispute. On May 2, 2008, at 5:04 p.m.,
Dimache and an unknown male entered a branch of the First
Palmetto Savings Bank in Myrtle Beach, South Carolina.
They approached one of the bank tellers and requested change
for a $10 dollar bill and a $50 dollar bill. As the bank teller
was getting the change, Dimache leaped over the counter,
brandished a gun, and stated, "[y]ou know the drill." (J.A. 84).
He then directed the bank teller to put the money from her
cash drawer into a bag being held by the unknown male.
Dimache pointed the gun at the two other bank tellers pres-
ent behind the counter and told them to get down on the floor.
He warned them to be quiet, stating if they were not, "[y]ou
know what will happen." (J.A. 84). After the bank teller put
the money into the bag, Dimache demanded that she also get
UNITED STATES v. DIMACHE 3
on the floor and count to 100. Dimache and the unknown
male then exited the branch with $1,778.00 in United States
currency.
Dimache became a suspect after the bank robbery once
forensic comparison analysis revealed that DNA retrieved
from a dental overlay recovered at the scene matched Dim-
ache’s DNA. Dimache was interviewed by federal law
enforcement agents on June 24, 2010 in Miami, Florida. Even
though video surveillance evidence linked Dimache to the
bank robbery, he denied his involvement in the bank robbery,
as well as knowing the unknown male accomplice.
On July 7, 2010, a federal grand jury in the District of
South Carolina returned a three-count indictment charging
Dimache with: (1) armed bank robbery, 18 U.S.C. § 2113(d);
(2) being a felon in possession of a firearm, id. § 922(g)(1);
and (3) using and carrying a firearm during and in relation to
a crime of violence, id. § 924(c)(1).1 Pursuant to a plea agree-
ment, Dimache pled guilty to armed bank robbery.
In preparation for sentencing, a Presentence Investigation
Report was prepared by a United States Probation Officer.
The probation officer set Dimache’s base offense level at 20,
USSG § 2B3.1(a). Three enhancements and one downward
adjustment were applied by the probation officer to Dim-
ache’s base offense level. First, the base offense level was
increased two levels because the property of a post office or
financial institution was taken, id. § 2B3.1(b)(1). Second, a
five-level enhancement was applied because a firearm was
brandished or possessed, id. § 2B3.1(b)(2)(C). Third, a two-
level enhancement was applied because the bank tellers were
physically restrained to facilitate commission of, or escape
from, the bank robbery, id. § 2B3.1(b)(4)(B). In the probation
officer’s opinion, the § 2B3.1(b)(4)(B) enhancement applied
1
Dimache’s lengthy criminal history contains several felony convictions
from the state of Florida.
4 UNITED STATES v. DIMACHE
because, "[d]uring the course of this robbery, the defendant
used a firearm to threaten the victim tellers and force them to
lie on the ground, thereby restraining their movements." (J.A.
93). Finally, a two-level downward adjustment was applied
for acceptance of responsibility, USSG § 3E1.1(a), resulting
in a total offense level of 26. Combined with a Criminal His-
tory Category III, Dimache’s sentencing range was 78 to 97
months’ imprisonment.
Dimache objected to the probation officer’s recommenda-
tion that the bank tellers were physically restrained under
USSG § 2B3.1(b)(4)(B). At sentencing, the district court
heard arguments from both sides concerning this objection.
After such arguments, the district court overruled the objec-
tion to the probation officer’s recommendation. In its ruling,
the district court focused on the two bank tellers ordered to
the floor at gunpoint, stating:
I find that this defendant was using the gun to
restrain these tellers so that they would not interfere
with the robbery or so that they would not interfere
with the taking of the money. And that gun is, I
think, just as effective, if not more effective, in
restraining these two tellers as duct tape or some
kind of twine or rope would have been as well.
***
And in this case, the defendant did not just have a
gun. He did not just display the gun. He pointed the
gun at the other two tellers with the specific intent to
restrain them from being involved in some way or
fleeing or whatever they would choose to do. But he
pointed the gun at them to restrain them. It was forc-
ible restraint of the victims to enable the robbery to
take place just like the case that we discussed, the
Fourth Circuit case where the individual in the car
was held so she could be robbed. I think that was the
UNITED STATES v. DIMACHE 5
[United States v. ]Wilson[, 198 F.3d 467 (4th Cir.
1999)] decision where you have got that kind of
physical restraint.
***
So, the gun, I believe, was used to restrain them, not
just everybody in the bank to get down, but pointed
the gun at the two tellers who were behind the
counter and by this defendant and the other person
in the bank to then have the teller place the money
into the bag.
And I find that the fact pattern is consistent with
other fact patterns where individuals have been
restrained and the enhancement has applied.
(J.A. 58-60).
Following its ruling, the district court heard from counsel,
as well as from Dimache, concerning the appropriate sen-
tence. After considering the advisory sentencing range, as
well as the factors set forth in 18 U.S.C. § 3553(a), the district
court sentenced Dimache to ninety months’ imprisonment.2
Dimache noted a timely appeal.
II
We review a sentence imposed by the district court under
the deferential abuse-of-discretion standard, regardless of
whether the sentence imposed is inside, just outside, or signif-
icantly outside the Guidelines range. United States v. Evans,
526 F.3d 155, 161 (4th Cir. 2008); see also Gall v. United
States, 552 U.S. 38, 41 (2007). The first step in this review
2
Had the district court sustained Dimache’s objection to the USSG
§ 2B3.1(b)(4)(B) enhancement, Dimache’s sentencing range would have
been 63 to 78 months, instead of 78 to 97 months.
6 UNITED STATES v. DIMACHE
requires us to inspect the record for procedural reasonableness
by ensuring that the district court committed no significant
procedural errors, such as failing to calculate or improperly
calculating the Guidelines range, failing to consider the 18
U.S.C. § 3553(a) factors, or failing to adequately explain the
sentence. United States v. Boulware, 604 F.3d 832, 837–38
(4th Cir. 2010). The second step requires us to consider the
substantive reasonableness of the sentence imposed, taking
into account the totality of the circumstances. Gall, 552 U.S.
at 51.
Dimache contends that the sentence imposed by the district
court is procedurally unreasonable because the district court
erred when it enhanced his base offense level two levels under
USSG § 2B3.1(b)(4)(B). More specifically, Dimache con-
tends that the two bank tellers ordered to the floor at gunpoint
were not physically restrained, because physical restraint
requires more than just pointing a gun at a person, ordering
them to the floor, and telling them not to move. In response,
the government posits that Dimache’s conduct warrants the
application of the USSG § 2B3.1(b)(4)(B) enhancement,
because the gun restrained the freedom of movement of the
two bank tellers. According to the government, the gun was
just as effective at physically restraining the two bank tellers
as twine or duct tape, had such items been used to restrain
them.
USSG § 2B3.1(b)(4)(B) requires a two-level enhancement
if a person is "physically restrained to facilitate the commis-
sion of the offense [of robbery] or to facilitate escape." USSG
§ 2B3.1(b)(4)(B). "Physically restrained" is defined as "the
forcible restraint of the victim such as by being tied, bound,
or locked up." Id. § 1B1.1, comment. (n.1(K)). The USSG
§ 2B3.1(b)(4)(B) enhancement is not limited to the examples
listed in USSG § 1B1.1(K). See United States v. Stokley, 881
F.2d 114, 116 (4th Cir. 1989) ("By use of the words ‘such as,’
it is apparent that ‘being tied, bound, or locked up’ are listed
by way of example rather than limitation."). "The essential
UNITED STATES v. DIMACHE 7
character of conduct that is subject" to the USSG
§ 2B3.1(b)(4)(B) enhancement is the deprivation of a person’s
"freedom of physical movement." United States v. Taylor,
620 F.3d 812, 814 (7th Cir. 2010).
Whether a person is physically restrained during the com-
mission of, or escape from, a robbery is not an easy question
to answer, especially when a gun is present. Some courts view
USSG § 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. See
United States v. Parker, 241 F.3d 1114, 1118-19 (9th Cir.
2001) ("[C]ases holding that a defendant physically restrained
his victims usually involve a sustained focus on the restrained
person that lasts long enough for the robber to direct the vic-
tim into a room or order the victim to walk somewhere. . . .
It is therefore likely that Congress meant for something more
than briefly pointing a gun at a victim and commanding her
once to get down to constitute physical restraint, given that
nearly all armed bank robberies will presumably involve such
acts."); United States v. Drew, 200 F.3d 871, 880 (D.C. Cir.
2000) ("Nevertheless, the phrase ‘being tied, bound, or locked
up’ indicates that physical restraint requires the defendant
either to restrain the victim through bodily contact or to con-
fine the victim in some way. . . . The required restraint must,
as the language plainly recites, be physical. While [the victim
of the attempted murder in this case] no doubt felt restrained
by [the defendant], she was not subject to physical restraint,
as we interpret the Guideline’s use of that phrase. . . . Any
other interpretation would effectively add the two-level
adjustment to almost any attempted murder because presum-
ably any victim would feel restrained if directed to move at
gunpoint.") (internal quotation marks omitted); United States
v. Anglin, 169 F.3d 154, 164 (2d Cir. 1999) (concluding that
"displaying a gun and telling people to get down and not
move, without more, is insufficient to trigger the ‘physical
restraint’ enhancement" in sentencing for armed robbery).
8 UNITED STATES v. DIMACHE
Other courts, including our own, view USSG
§ 2B3.1(b)(4)(B) 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. See Wilson, 198 F.3d at 472 (holding
that victim physically restrained by being prevented at gun-
point from leaving car until the defendants took her money
and got control of car); see also United States v. Wallace, 461
F.3d 15, 33 (1st Cir. 2006) (applying the USSG
§ 2B3.1(b)(4)(B) enhancement, in part, because the defen-
dants "rendered the victims physically immobile by keeping
their guns pointed directly at each victim in close range");
United States v. Fisher, 132 F.3d 1327, 1329-30 (10th Cir.
1997) ("Physical restraint is not limited to physical touching
of the victim. . . . Rather, physical restraint occurs whenever
a victim is specifically prevented at gunpoint from moving,
thereby facilitating the crime. . . . Keeping someone from
doing something is inherent within the concept of restraint,
and in this case one coconspirator deliberately kept the secur-
ity guard at bay by pointing a gun directly at his head while
two others looted the teller counter.").
At least one other court seems to take a middle ground,
requiring more than simply pointing a gun at a victim to
restrain the victim’s movements, but less than requiring either
physical contact or confinement. See Taylor, 620 F.3d at 815(holding that USSG § 2B3.1(b)(4)(B) enhancement properly
applied where bank teller was moved from the bank vault to
the bank teller counter, while noting that moving a bank teller
from one area of the bank to another is a feature of many rob-
beries but not all and that such conduct "goes a step, albeit a
modest one, beyond the mere aiming of a gun at a stationary
robbery victim").
In our decision in Wilson, Wilson’s codefendant, Gilbert,
approached a woman while she was in her car, pointed the
gun at her, and directed her to get out of her car. 198 F.3d at
469. The woman replied that she could not comply with Gil-
UNITED STATES v. DIMACHE 9
bert’s command because her baby was in the car. Id. In
response, Gilbert instructed the woman to grab her baby and
get out of the car. Id. After the woman complied with this
request, Wilson and Gilbert entered the car and drove off. Id.Three days later, another woman was driving her car when
she saw Wilson and Gilbert waving for her to stop. Id. After
the woman stopped the car, Wilson and Gilbert entered the
car, under the ruse that they needed a ride. Id. After five to
ten minutes of travel, Gilbert placed a gun to the side of the
woman’s head and told her to pull over, which the woman
did. Id. Wilson told the woman to get out of the car and hand
over all the money she had. Id. The woman then gave Wilson
and Gilbert all of the money in her purse and exited the car,
after which Wilson and Gilbert drove off. Id.For reasons unknown, Wilson and Gilbert were charged by
a federal grand jury with several offenses arising from the
second carjacking, but not the first. Gilbert pled guilty and
testified at Wilson’s trial. Id. Wilson was convicted of car-
jacking and two additional charges. Id. In sentencing Wilson,
the district court applied the USSG § 2B3.1(b)(4)(B) enhance-
ment for Wilson’s conduct in the second carjacking, because
there was a restraint when the gun was pulled, the
car was stopped, she was held long enough to have
taken her money, and then forced out of the car. So
for a period of time, albeit short, she was physically
restrained, and then put out of the car [. . .] in an
effort to facilitate the offense of taking the car.
Wilson, 198 F.3d at 471 (citation and internal quotation marks
omitted).
On appeal to this court, Wilson argued that the district
court erred when it applied the USSG § 2B3.1(b)(4)(B)
enhancement to his base offense level, because there was
insufficient evidence demonstrating that the woman in the
10 UNITED STATES v. DIMACHE
second carjacking was physically restrained. Wilson, 198 F.3d
at 471.
In rejecting Wilson’s argument, we noted that a USSG
§ 2B3.1(b)(4)(B) enhancement is proper "if the act of physical
restraint ‘adds to the basic crime.’" Wilson, 198 F.3d at 472(quoting United States v. Mikalajunas, 936 F.2d 153, 156 (4th
Cir. 1989)). After discussing our decisions in both Stokley and
Mikalajunas, we concluded that the woman in the second car-
jacking was physically restrained such that the application of
the USSG § 2B3.1(b)(4)(B) enhancement was proper, because
a gun was held to the woman’s head and she was briefly pre-
vented from leaving her car until Wilson and Gilbert were
able to get her money and gain control of her car. Wilson, 198
F.3d at 472. In reaching this conclusion, we noted that physi-
cal restraint neither is an element of carjacking, nor specifi-
cally incorporated into the base offense level for the Robbery
Guideline. Id. Finally, in dicta, we noted that the woman in
the first carjacking was not physically restrained. Id.Turning to Dimache’s case, its outcome is controlled by
Wilson. In Wilson, the USSG § 2B3.1(b)(4)(B) enhancement
was upheld because Wilson and Gilbert pointed a gun at the
victim’s head and prevented her from leaving her car until she
turned over both her money and her car. Wilson, 198 F.3d at
472. In our case, the two bank tellers ordered to the floor at
gunpoint were prevented from both leaving the bank and
thwarting the bank robbery (for example, by tripping the
bank’s alarm). There is no meaningful way to distinguish the
case currently before the court and our decision in Wilson.
Dimache seeks to get around Wilson in two ways. First, he
asks us to reconsider Wilson, positing that the decisions of
Parker, Drew, and Anglin are better reasoned, because those
decisions limit the USSG § 2B3.1(b)(4)(B) enhancement to
conduct nearly identical to the examples listed in the defini-
tion of "[p]hysically restrained," see USSG § 1B1.1, com-
ment. (n.1(K)) (defining "[p]hysically restrained" as "the
UNITED STATES v. DIMACHE 11
forcible restraint of the victim such as by being tied, bound,
or locked up"). He also asks us to adopt the Parker, Drew,
and Anglin line of authority because it is supported by the
Supreme Court’s decision in Begay v. United States, 553 U.S.
137 (2008). In Begay, the Court held that the listed examples
in the Armed Career Criminal Act’s definition of "violent fel-
ony" (defined as a crime that "is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another")
illustrate the types of crimes that fall within the scope of the
residual clause ("otherwise involves conduct that presents a
serious potential risk of physical injury to another"). Id. at
142. In so holding, the Court observed that driving under the
influence, although a dangerous activity, was not within the
scope of the definition of violent felony because it lacked the
essential character of the listed examples, which the Court
described as "purposeful, violent, and aggressive" conduct. Id.
at 144-45 (citation and internal quotation marks omitted).
Courts have rejected recent attempts to use Begay to limit
the USSG § 2B3.1(b)(4)(B) enhancement to conduct nearly
identical to the examples listed in Application Note 1(K). See,
e.g., Taylor, 620 F.3d at 814-15. As the court noted in Taylor,
a list of examples within a statutory definition "can be a clue
to the statute’s intended scope." Id. at 814. The intended
scope of the USSG § 2B3.1(b)(4)(B) enhancement is to pun-
ish a defendant who deprives a person of his physical move-
ment, which can be accomplished by means other than those
listed in Application Note 1(K). See Taylor, 620 F.3d 814(noting that "[h]itting a person over the head with a two-by-
four will make him incapable, for a time at least, of any physi-
cal movement. But it won’t create a physical barrier, as a
locked door does; nothing but his being unconscious prevents
him from moving"); id. at 815 (noting that, "[w]hether a
pointed gun is used to move a person into an unlocked room
and keep him there, or used to move a person from one part
of the robbery scene to another, the person’s freedom of
movement is restrained as effectively as by shoving or drag-
12 UNITED STATES v. DIMACHE
ging him into a room and locking the door"). Because the
intended scope of the USSG § 2B3.1(b)(4)(B) enhancement
goes well beyond the examples listed in Application Note
1(K), it makes little sense to tie the enhancement to conduct
nearly identical to such examples either under the authority of
Begay or the Parker, Drew, and Anglin line of authority.
Second, Dimache seeks to distinguish Wilson on the basis
that the woman in the second carjacking in Wilson was con-
fined to a small area (her car), yet the two bank tellers here
were confined to a large area (the bank). Although we are not
convinced that the area behind the bank teller counter could
be construed as large, we decline Dimache’s entreaties to
create a small/large distinction within USSG
§ 2B3.1(b)(4)(B). The size of the area is not controlling,
because the applicability of the USSG § 2B3.1(b)(4)(B)
enhancement turns on whether the victim’s freedom of move-
ment was restrained, regardless of the size of the area. See
Taylor, 620 F.3d at 814 (noting that the deprivation of free-
dom of movement "can be accomplished by means other than
creating a physical barrier to movement"). Perhaps more
importantly, a small/large distinction within USSG
§ 2B3.1(b)(4)(B) would yield an unworkable standard.
III
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED