UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4267

KENNETH O'NEIL ROUSE, a/k/a Neal,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Solomon Blatt, Jr., Senior District Judge.

(CR-95-196)

Submitted: December 26, 1996

Decided: February 26, 1997

Before WILKINS and LUTTIG, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Kenneth C. Krawcheck, Charleston, South Carolina, for Appellant.

J. Rene Josey, United States Attorney, Ben A. Hagood, Jr., Assistant

United States Attorney, Charleston, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

A jury convicted Kenneth O'Neil Rouse of attempted bank robbery

in violation of 18 U.S.C. § 2113(a) & (d) (1994) and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)

(1994). Rouse appeals only the district court's application of a twolevel physical restraint enhancement in calculation of his sentence.

The district court applied the enhancement pursuant to USSG

§ 2B3.1(b)(4)(B) (Nov. 1994). Finding no error, we affirm.

Rouse does not contest the factual findings made by the district

court. We review purely legal issues, such as the interpretation of the

guidelines, on a near de novo basis. United States v. Daughtrey, 874

F.2d 213, 217 (4th Cir. 1989). The robbery guideline provides for a

two-level enhancement "if any person was physically restrained to

facilitate commission of the offense or to facilitate escape." USSG

§ 2B3.1(b)(4)(B).

The commentary to § 2B3.1 contains two statements regarding

physical restraint. Application Note 1 states that the term "physically

restrained" is defined in commentary to § 1B1.1, which is the general

definitions section of the Guidelines. In that section, physically

restrained "means the forcible restraint of the victim such as by being

tied, bound, or locked up." USSG § 1B1.1, comment. (n.1(i)) (emphasis added). The background commentary to USSG § 2B3.1 also discusses physical restraint. It states that "[t]he guideline provides an

enhancement for robberies where a victim was forced to accompany

the defendant to another location, or was physically restrained by

being tied, bound, or locked up." USSG § 2B3.1, comment. (backg'd)

(emphasis added). The definitions are somewhat different because the

definition in the definition section uses "such as" and the commentary

states "restrained by being tied, bound, or locked up."

Rouse argues that the language in the background to§ 2B3.1

should be used because it is more restrictive. Using that definition,

Rouse argues that the enhancement should not be applied because he

did not tie up, bind, or lock up the victim. This court has examined

whether the definition of physical restraint in§ 1B1.1 is limited to the

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examples of being tied, bound, or locked up. In United States v.

Stokley, 881 F.2d 114 (4th Cir. 1989), this court held that the definition is not all inclusive and that the enhancement may be applied

when other forms of restraint are used. Stokley , 881 F.2d at 116.

Because § 2B3.1 specifically refers to § 1B1.1 for the definition of

physically restrained, we find that analysis under that section is

proper. See USSG § 2B3.1, comment. (n.1).

Rouse does not contest the facts found by the district court regarding the force used against the victim. The district court found that the

victim was thrown down, had Rouse lying on top of him, a gun

pointed at him, and that he was physically held. This course of conduct was enough to qualify for application of the physical restraint

enhancement.

Rouse's second argument against application of the enhancement

is that the force used against the victim does not meet the definition

of physical restraint because it was a momentary or brief holding.

Rouse relies upon United States v. Mikalajunas , 936 F.2d 153 (4th

Cir. 1991), to support his position. In Mikalajunas, the defendant

chased, caught, and stabbed to death his victim. The court held that

the victim had not been physically restrained because the brief holding during the stabbing was already encompassed in the murder

guideline. Mikalajunas, 936 F.2d at 156. We noted, however, that the

duration of restraint is a critical factor in applying the enhancement.

Id.

The evidence at trial included a videotape showing much of the

robbery. The district court found that several minutes elapsed while

the victim was under the control of Rouse and his co-defendant. The

force Rouse used to restrain the victim was neither brief nor momentary. It was not significantly similar to the situation in Mikalajunas.

We therefore find that this argument is without merit.

Finally, Rouse argues that it was improper to apply the enhancement because the restraint was also an element of the crime. Rouse

was charged with and convicted of attempting to rob the bank by

force, violence, and intimidation, and assaulting and putting in jeopardy the life of another by the use of a firearm. While the language

of the bank robbery statute and Rouse's indictment uses the terms

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force and violence, those terms do not have the same meaning as

physical restraint and therefore physical restraint is not a contemplated element of the offense.

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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