UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4098

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

MELVIN LEWIS BAYLOR, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. 

Conrad, Jr., Chief District Judge. (3:05-cr-00282-RJC-CH-1) 

Submitted: September 30, 2008 Decided: October 21, 2008 

Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Randolph M. Lee, LAW OFFICES OF RANDOLPH M. LEE, Charlotte, 

North Carolina, for Appellant. Gretchen C. F. Shappert, United 

States Attorney, Adam Morris, Assistant United States Attorney, 

Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Melvin Lewis Baylor pled guilty to conspiracy to 

commit robbery affecting interstate commerce, 18 U.S.C. 

§ 1951(a) (2000) (Count One); aiding and abetting a robbery 

affecting interstate commerce, 18 U.S.C. §§ 1951, 2 (2000) 

(Count Two); and brandishing and discharging a firearm in 

furtherance of a crime of violence, 18 U.S.C.A. § 924(c) (West 

2000 & Supp. 2008) (Count Three). He received a sentence of 

thirty-six months imprisonment for Counts One and Two, and a 

consecutive ten-year sentence for the § 924(c) count. Baylor 

appeals his sentence, contending that the district court erred 

in applying a two-level enhancement for physical restraint, U.S. 

Sentencing Guidelines Manual (USSG) § 2B3.1(b)(4)(B) (2006). We 

affirm. 

 Baylor, Trisco McFarland, and Nathan Cuthbertson 

together robbed a shoe store in Charlotte, North Carolina. 

Cuthbertson and McFarland both carried firearms. McFarland went 

to the back of the store and robbed two customers while Baylor 

and Cuthbertson went up to the store manager, Shawn Miller, who 

was at the cash register. Miller was also armed, but concealed 

his pistol under his shirt. Cuthbertson put his gun at the back 

of Miller’s head and told Miller to open the cash drawer. He 

told Miller to hand him a paper bag that was on the shelf below 

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the cash drawer, and then Cuthbertson handed the bag to Baylor, 

who put money into it. 

 While Cuthbertson was distracted, Miller drew his gun 

and shot both Cuthbertson and Baylor multiple times. 

Cuthbertson was fatally wounded, but McFarland and Baylor 

escaped and stole a car at gunpoint from two men who had just 

parked in the parking lot. 

 Before sentencing, Baylor objected unsuccessfully to 

the enhancement recommended in the presentence report for 

restraint of a victim, arguing that Miller was not restrained in 

a way that would trigger the enhancement under § 2B3.1(b)(4)(B). 

The district court found that the enhancement was warranted 

under United States v. Wilson, 198 F.3d 467 (4th Cir. 1999) 

(holding that victim was physically restrained when gun was 

placed to her head). The court granted the government’s motion 

for a substantial assistance departure and imposed a sentence of 

thirty-six months imprisonment for Counts One and Two, and a 

mandatory consecutive sentence of ten years for the § 924(c) 

count, for a total sentence of 156 months. 

 Baylor appeals his sentence, contending that the 

sentence is procedurally unreasonable because the court 

incorrectly applied the enhancement for physical restraint. A 

sentence is reviewed for reasonableness, applying an abuse of 

discretion standard. Gall v. United States, 128 S. Ct. 586, 597 

3 
(2007); see also United States v. Go, 517 F.3d 216, 218 (4th 

Cir. 2008). The appellate court must determine whether the 

district court correctly calculated the advisory guideline 

range, because a failure to do so constitutes a “significant 

procedural error” that may render a sentence unreasonable. 

Gall, 128 S. Ct. at 597. The appellate court (unlike the 

district court) may then apply a presumption of reasonableness 

to a sentence within the guideline range. Go, 517 F.3d at 218; 

see also Gall, 128 S. Ct. at 597; Rita v. United States, 127 S. 

Ct. 2456 (2007). 

 Application Note 1 to § 2B3.1 defines “physically 

restrained” by adopting the definition of the term set out in 

Application Note 1(K) to USSG § 1B1.1, that is “the forcible 

restraint of the victim such as by being tied, bound, or locked 

up.”* The examples given in the Note are illustrative only. See

United States v. Johnson, 492 F.3d 254, 257 (4th Cir. 2007) 

(citing United States v. Stokley, 881 F.2d 114, 116 (4th Cir. 

1989), and noting with approval the decision in Wilson that 

“holding a gun to a victim’s head to prevent her from leaving 

 *

 The same definition is incorporated into USSG § 3A1.3, 

which provides a two-level adjustment for restraint of a victim 

where the applicable guideline does not have an enhancement for 

that conduct. 

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her carjacked vehicle” was “sufficiently akin to the examples to 

constitute forcible restraint”). 

 Baylor contends that in his case the enhancement was 

error based on decisions from the Ninth, Second, and Fifth 

Circuits holding that pointing a gun at a victim to restrict his 

movement is not physical restraint. See United States v. 

Parker, 241 F.3d 1114, 1118-19 (9th Cir. 2001); United States v. 

Anglin, 169 F.3d 154, 164 (2d Cir. 1999); United States v. 

Hickman, 151 F.3d 446, 461 (5th Cir. 1998). However, the First 

Circuit recently held that pointing a gun at a victim, while 

simultaneously placing a hand on his neck and shoulder to force 

him to kneel and stating, “I do not want to hurt you,” 

constituted physical restraint. United States v. Ossai, 485 

F.3d 25, 33 (1st Cir.), cert. denied, 128 S. Ct. 279 (2007). 

 Regardless of how other circuits view the issue, in 

this Circuit the law is clear that use of a gun to restrain a 

victim may constitute physical restraint within the meaning of 

§ 2B3.1. Because our precedents are controlling, the district 

court did not err in finding that the victim in this case was 

physically restrained when Baylor’s co-defendant placed a gun at 

his neck. 

 Baylor suggests that the holding in Parker should be 

applied in his case. However, a panel of this court may not 

overrule a prior panel. United States v. Simms, 441 F.3d 313, 

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318 (4th Cir.), cert. denied, 127 S. Ct. 233 (2006). He also 

suggests that our decision in United States v. Mikalajunas, 936 

F.2d 153 (4th Cir. 1991), is more applicable to his case than 

Johnson, because Johnson involved an obvious example of physical 

restraint. In Mikalajunas, the defendant was convicted of being 

an accessory after the fact to second degree murder of a victim 

who was stabbed to death. We held that “a brief holding as part 

of a stabbing” did not meet the guideline definition of 

restraint. Mikalajunas, 936 F.2d at 156. In this case, we are 

satisfied that the facts support the enhancement. 

 We therefore affirm the sentence imposed by the 

district court. 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