                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          JAN 10 2001
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                 Nos. 00-3183 & 00-3184
                                                   (D.C. No. 99-20100-01/02)
 DYNA KHLEANG and JEREMY D.                           (District of Kansas)
 JONES,

          Defendants - Appellants.


                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.


      This order and judgment addresses the related appeals by defendants in

United States v. Khleang     and United States v. Jones . Appellants Dyna Khleang

and Jeremy Jones entered pleas of guilty to armed bank robbery in violation of 18

U.S.C. § 2113(a), (d) and 18 U.S.C. § 2 and to brandishing a firearm during a

crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and 18 U.S.C. § 2.

Prior to sentencing, the district court granted the government’s request to apply a


      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The Court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
two level enhancement to appellants’ base level offenses under Sentencing

Guideline § 2B3.1(b)(4)(B) for physically restraining a person to facilitate the

offense. On appeal, appellants challenge the district court’s determination that

their conduct rose to the level of physical restraint.

       The facts in these appeals are undisputed. “We therefore review de novo

the district court’s application of the sentencing guidelines.”    United States v.

Fisher , 132 F.3d 1327, 1328 (10th Cir. 1997).

       On December 14, 1999, appellants and one other individual robbed the

Commercial Federal Bank in Overland Park, Kansas. After entering the bank, one

of the robbers pointed a small semi-automatic pistol in various directions and the

other two robbers vaulted over the tellers’ counters. While the gun was being

waved around, the robbers ordered the employees to get on the floor. Although

the gun was not pointed at any particular individual for an extended period of

time, the gun was “stuck” at teller Joy Ruge. (     See III R. Doc. 78 at 10

(stipulation by appellee that the gun was pointed around the room during the

robbery, including “the wall or the floor or the ceiling or wherever it may be”).)

An addendum to the presentence investigation report states:

       One of the three female tellers, Joy Ruge, said she heard a robber say
       “get down you bitch” and then saw one of the robbers vault over the
       teller counter. Another robber came to her teller window, pointed the
       gun at her, and told her to get down. While she was on the floor, one
       of the robbers went through her drawers and slammed the lower
       drawer into her head when he pulled it open.

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(IV R. at 20.)

      “[A]ny person who, during and in relation to any crime of violence . . . uses

or carries a firearm, or who, in furtherance of any such crime, possesses a firearm,

shall . . . (ii) if the firearm is brandished, be sentenced to a term of imprisonment

of not less than 7 years . . . .” 18 U.S.C. § 924(c)(1)(A). The Sentencing

Guidelines define “brandished” to “mean[] that all or part of the weapon was

displayed . . . in order to intimidate.” U.S.S.G. § 1B1.1 cmt. n.1(c).

      Sentencing Guideline § 2B3.1(b)(4)(B) states that a court should increase

an offender’s base level by two if during a robbery the defendant physically

restrained any person to facilitate the commission of the offense. This Court has

determined that it is not “double counting” to sentence a defendant for

brandishing under § 924(c)(1)(A) and to impose a sentence enhancement under

Sentencing Guideline § 2B3.1(b)(4)(B).       United States v. Pearson , 211 F.3d 524,

526 (10th Cir.), cert. denied , 121 S. Ct. 234 (2000). Such a sentence is

permissible because the physical restraint enhancement requires an offender to do

more than merely brandish a gun. In      Pearson , we stated:

      [P]hysical restraint with a gun is conduct distinct from either the
      actual discharge, “otherwise use,” or brandishing, display or
      possession of a gun . . . In other words, those acts alone do not
      automatically create a situation where physical restraint of an
      individual occurs. Instead, something more must be done with the
      gun to physically restrain them.

211 F.3d at 526 (emphasis added).

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       Although the term “physically restrained” is defined by application note

1(i) to Sentencing Guideline § 1B1.1 as “the forcible restraint of the victim such

as by being tied, bound, or locked up” we have concluded that “physical restraint

occurs whenever a victim is specifically prevented at gunpoint from moving,

thereby facilitating the crime.”   United States v. Fisher , 132 F.3d 1327, 1330

(10th Cir. 1997). This conclusion follows from the fact that “[k]eeping someone

from doing something is inherent within the concept of restraint.”          Id.

Accordingly, in Fisher this Court affirmed the application of the physical restraint

enhancement to increase a defendant’s base offense level where, during the

commission of a robbery, a security guard was restrained by gunpoint to the head.

132 F.3d at 1329. We also affirmed the application of the physical restraint

enhancement to a defendant involved in robbing a United States Post Office

because the facts established the defendant pointed a gun at the post office clerks

and ordered them to comply with his demands.        United States v. Rucker , 178 F.3d

1369, 1371 (10th Cir.),   cert. denied , 528 U.S. 957 (1999). Finally, in         Pearson ,

this Court held defendant’s sentence was properly enhanced where, during the

course of a robbery, bank employees were held at gunpoint in order to allow an

accomplice to take another employee to the bank vault.       211 F.3d at 527.

       Appellants argue that the § 2B3.1(b)(4)(B) sentence enhancement was

erroneous because their conduct during the robbery did not amount to more than


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brandishing. Attempting to distinguish the facts of other Tenth Circuit cases

involving the physical restraint enhancement    , appellants argue their cases lack the

necessary durational component. They point out that although one employee was

individually ordered to get down while a gun was pointed at her, no single

employee was specifically held at gunpoint. They also argue that the mere

intimidation of the victims through the general brandishing of a weapon does not

rise to the level of physical restraint required by § 2B3.1(b)(4)(B).

      We conclude that the determination of whether a victim was physically

restrained in violation of Sentencing Guideline § 2B3.1(b)(4)(B) requires a

sentencing court to look at the totality of the circumstances. Therefore, we agree

with appellants that in determining whether the physical restraint enhancement

was properly applied we should examine the nature and duration of the restraint.

We note that the duration component requires us to examine both the duration of

the period during which a gun was pointed at a victim as well as the duration of

the physical restraint.

      In the instant case, the requirements for physical restraint were met. One

employee briefly had a gun pointed at her while she was told to get on the floor,

was verbally intimidated with vulgarities, and was in very close physical

proximity to an offender–so close that her head was struck when the offender

opened a drawer. The bank employee was not only restrained by the pointing of


                                          -5-
the gun at her, albeit brief in duration, but she was restrained further by the other

robber’s immediate physical proximity to her. (   See III R. Doc. 78 at 38-39

(“[T]he Court is looking at the harm that was caused, the nature of the victim’s

harm. [I]t’s one thing to be . . . traumatized by being someone who is doing their

job and have somebody come and say give me all your money, it’s another thing

to be traumatized further or perhaps differently by someone randomly waving a

gun about, and it is yet another thing to be traumatized by having a gun pointed at

you and told you do this, and in connection with all the rest of the context . . .

here, vaulting over counters, saying obscenities to people, would encourage one,

under those circumstances, to feel that their liberty was severely restricted.”).)

Accordingly, we affirm the district court’s application of Sentencing Guideline

§ 2B3.1(b)(4)(B) to enhance the appellants’ base level offenses.

      The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT

                                        Carlos F. Lucero
                                        Circuit Judge




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