* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 27 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. PHOMA XAYASO,

Defendant - Appellant.

_______________________________ UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. MESA RITH, also known as Jago Rith, also known as Mesa Jago, also known as Rith Mesa,

Defendant - Appellant. No. 01-4055 (D.C. No. 2:98-CR-586-03-C)

(D. Utah)

No. 01-4100 (D.C. No. 2:98-CR-586-02-C

(D. Utah)

ORDER AND JUDGMENT *

Before KELLY and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are therefore ordered submitted without oral argument. Phoma Xayaso and Mesa Rith were convicted of armed bank robbery (18 U.S.C. § 213(a) and (d)) and carrying and using a firearm during a crime of violence (18 U.S.C. § 924(c)). In this appeal, the y ask that their sentences be vacated and their cases be remanded for resentencin g. Appellants were co-defendants and the resolution of their issues re lies on identical facts and a common record. Accordingly, we have companioned th ese appeals for disposition. See Fed. R. App. P. 3(b)(2)(2). We exercise jurisdict ion under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and we affirm

. Factual Background On November 24, 1998, defendant Xayaso and an indiv idual named Sonasi Pouha robbed the Zion’s First National Bank in Magn a, Utah. Both robbers were masked and gloved, and carried firearms. They leftthe bank with about $7,300. Defendant Rith was the driver of the get-away car. During the robbery, Mr. Xayaso mainly stayed in the lobby area, holding a rifle at waist level. At one point, he approached a branch manager who was-3-

talking on the telephone, silently pointed the rifl e at her, and hung up the phone. Mr. Pouha advanced on the tellers, pointed the revo lver, and shouted at them to give him their money. One of the tellers voluntari ly fell to the floor in an effort to activate an alarm. As soon as Mr. Pouha noticedthe teller, he shouted for him to get up. The charges against Mr. Xayaso and Mr. Rith proceed ed to a jury trial. Mr. Pouha entered a guilty plea and testified at tr ial on behalf of the government. The co-defendants were convicted of armed bank robb ery and carrying and using a firearm during that crime. At sentencing, the district court found that the co -defendants had brandished their weapons, resulting in an increase of the mandatory minimum sentence from five years to seven years. See 18 U.S.C. § 924(c)(1)(A)(ii). Furthermore, the court concluded that the facts warranted a two-level sentencing increase for the physical restraint of a person “to facilitate commission of the offense,” USSG § 2B3.1(b)(4)(B). Mr. Xayaso was s entenced to a total prison term of 161 months; Mr. Rith was sentenced to a tot al prison term of 221 months. On appeal, Mr. Xayaso and Mr. Rith raise substanti ally the same arguments: (1) that the “brandishing” of a firearmis not a sentencing factor, but rather is an element of the crime of carrying a fir earm during a crime of violence, which must be charged in indictment and proved beyo nd reasonable doubt; and1 Section 924(c)(1)(A) provides, in pertinent part:

[A]ny person who, during and in relation to any cri me of violence . . . uses or carries a firearm, or who, i n furtherance of any such crime, possesses a firearm, shall, in additionto the punishment provided for such crime of violence . . . -- (i) be sentenced to a term of imprisonment of not l ess than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years. . . . -4- (2) that the district court erred by adjusting thei r offense level upward based on findings of physical restraint of a victim during the robbery.

United States v. Xayaso , No. 01-4055 For his first issue on appeal, Mr. Xayaso states th at the indictment in this case charged him with using and carrying a firearm, in violation of 18 U.S.C. § 924(c), but did not include a reference to brandi shing. He argues that, under the reasoning of Apprendi v. New Jersey , 530 U.S. 466 (2000), the brandishing clause of § 924(c)(1)(A)(ii) sets forth an element of the offense that must be specifically charged in the indictment. 1 Mr. Xayaso did not raise this challenge before the district court. We therefore review the issue for plain error. Fed. R . Crim. P. 52(b). Under the plain-error standard, appellant must demonstrate th at the trial court erred, the error was plain, and the error affected his substantial rights. See United States v.2 Harris achieved a majority of the Court’s vote only as to Parts I, II, and IV

of the opinion. The statement on which we rely here is contained in Part II, and is therefore the holding of the Court
3 This language is from Part IV of the Harris opinion. -5- Cernobyl , 255 F.3d 1215, 1218 (10th Cir. 2001) (citing United States v. Olano , 507 U.S. 725, 732 (1993)). This court has discreti on to remedy plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings. Id . (quoting Olano , 507 U.S. at 732). The Supreme Court has recently made it plain that adistrict court does not err in basing a two-year increase in the minimum se ntence on a judicial finding of brandishment. The Court directly held that brandis hing is a “sentencing factor[] to be found by the judge, not an offense element to be found by the jury.” Harris v. United States , 122 S. Ct. 2406, 2414 (2002). 2Contrary to Mr. Xayaso’s contentions, this factor “need not be alleged in th e indictment, submitted to the jury, or proved beyond a reasonable doubt.” Id . at 2420. 3 We uphold the imposition of the increased mandatory minimum sente nce under § 924(c)(1)(A)(ii). Mr. Xayaso also asserts that the district court err ed in applying the physical restraint guideline to his offense. “We review the district court’s interpretation and application of the Sentencing Guidelines de nov o and its factual findings for clear error.” United States v. Turner , 285 F.3d 909, 915 (10th Cir. 2002)-6-

(quotation omitted), petition for cert

. filed , (U.S. July 1, 2002) (No. 02-5120). We give “due deference” to the district court’s app lication of the sentencing guidelines to the facts. 18 U.S.C. § 3742(e). The sentencing guidelines authorize a two-level upw ard adjustment from the base offense level for a robbery “if any personwas physically restrained to facilitate commission of the offense or to facilitate escape.” USSG § 2B3.1(b)(4)(B). Mr. Xayaso argues that his and Mr. Pouha’s conduct toward bank employees did not amount to physical restraint

. In United States v. Fisher , 132 F.3d 1327 (10th Cir. 1997), we held that “[p]hysical restraint is not limited to physical to uching of the victim. Rather, physical restraint occurs whenever a victim is spec ifically prevented at gunpoint from moving, thereby facilitating the crime. Id. at 1329-30 (citation omitted). see also United States v. Pearson , 211 F.3d 524, 525-26 (10th Cir.) (citing Fisher approvingly and noting that “we have determined an enhancement for physical restraint is applicable when the defendant uses for ce, including force by gun point, to impede others from interfering with commission of the offense”), cert. denied , 531 U.S. 899 (2000). Under the well-established Tenth Circuit interpretation of USSG § 2B3.1(b)(4)(B), the district court properly appli ed the guideline to Mr. Xayaso’s case. Using his rifle at close range, Mr. Xayaso r estrained the bank manager from-7-

remaining on the telephone and reporting the robbery to the person on the other end of the line. Additionally, Mr. Pouha pointed h is pistol at a teller attempting to activate an alarm and ordered him to stand. Bot h of these actions amounted to the use of force in an attempt to facilitate the ba nk robbery. The two-level adjustment for restraint of a victim was proper.
United States v. Rith , No. 01-4100 Mr. Rith admits that, as the getaway car driver, he was an aider and abetter in the bank robbery and thus liable for the acts co mmitted by Mr. Xayaso and Mr. Pouha. For the same reasons we have rejected i dentical arguments made by Mr. Xayaso, we determine that Mr. Rith’s arguments fail. The increased mandatory minimum sentence for brandishing a firearm, under § 924(c)(1)(A)(ii), and the two-level adjustment for the physical restr aint of a victim, USSG § 2B3.1(b)(4)(B), were appropriate. We grant the g overnment’s motion for leave to incorporate and use the record on appeal as desi gnated in Mr. Xayaso’s case, No. 01-4055.-8- Conclusion In United States v. Xayaso , No. 01-4055, the judgment of the district court is AFFIRMED. In United States v. Rith , No. 01-4100, the judgment of the district court is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge