                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   March 26, 2008
                     UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court




 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No.07-4058
 v.
                                                          (D. Utah)
                                                  (D.C. No.2:06-CR-566 TC)
 JOHN ROBERT HARRIS,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
BRISCOE, Circuit Judge.



      In a five-count indictment filed in the United States District Court for the

District of Utah on August 16, 2006, John Robert Harris (the defendant) was

charged with five separate robberies, each violating the Hobbs Act, 18 U.S.C. §

1951(a). 1 The defendant later pled guilty to Counts III, IV, and V of the


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      1
        Defendant was originally charged in a Utah State Court with the five
robberies charged in the instant case. In that case, the defendant pled guilty and
                                                                       (continued...)
indictment and the United States dismissed Counts I and II.

      The Pre-Sentence Report (PSR) set defendant’s base offense level at 20 and

increased that level by four levels for the use of a dangerous weapon. U.S.S.G. §

2B3.1(b)(2)(D). The PSR then increased defendant’s offense level by two more

levels because he physically restrained a person to facilitate the commission of

the offense charged in Count IV of the indictment, U.S.S.G. § 2B3.1(b)(4)(B).

Count IV charged the defendant with a robbery of the Subway Restaurant in Salt

Lake County, Utah.

      U.S.S.G. § 2B3.1(b)(4)(B) provides that a defendant’s offense level may be

enhanced by two levels “if any person was physically restrained to facilitate

commission of the offense or to facilitate escape.” In commentary to the

foregoing, the Guideline provided that the two-level enhancement applies to

robberies “where a victim was forced to accompany the defendant to another

location, or was physically restrained by being tied, bound, or locked up.” At

sentencing the defendant objected to the two-level enhancement, but the District

Court overruled the objection and increased defendant’s level by two levels.

With an adjusted offense level of 26 and a criminal history category of I, the

Guideline range was 63 to 78 months imprisonment. The District Court sentenced

defendant at the low end of the Guideline Range, i.e. 63 months, but reduced that


      1
       (...continued)
was sentenced to two years imprisonment, but was released early after serving 18
months in prison.

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sentence by 18 months for the time the defendant had previously served in the

Utah State Prison, resulting in a sentence in the instant case of 45 months

imprisonment.

      On appeal, the only issue raised is whether the two-level increase in

defendant’s offense level based on the robbery at the Subway Restaurant was

proper.

      As stated, U.S.S.G. § 2B3.1(b)(4)(B) provides, inter alia, that “if any

person was physically restrained to facilitate commission of the offense or to

facilitate escape, increase by 2 levels.” The only question before this Court is

whether the defendant in robbing the Subway Restaurant (Count IV) “physically

restrained” the clerk at the restaurant. In this regard in his “Statement by

Defendant in Advance of Plea of Guilty,” the defendant stated, in connection with

his robbery of the Subway Restaurant as follows:

                    Count IV. On or about November 13, 2004, in the
             Central Division of the District of Utah, I knowingly and
             intentionally, did take from an employee, against the
             employee’s will, at the Subway restaurant, located at
             6181 South Highland Drive in Salt Lake County, Utah,
             by physical force or violence, threatened force or
             violence and fear of injury, U.S. currency, which
             belonged to and was in the care, custody, control,
             management of the Subway restaurant, and by
             committing such robbery obstructed, delayed or affected
             commerce or the movement of articles or commodities
             in interstate commerce; in violation of 18 U.S.C. §
             1951(a).

                    On that day, I reached across the counter and used
             a knife to demand money. I also ordered the other

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             employee to the ground. Upon receiving money, I fled
             from the store.

      As concerns the robbery of the Subway Restaurant, the PSR states as

follows:

             On November 13, 2004, a suspect entered a Salt Lake
             City Subway Sandwich Restaurant and placed an order.
             As the suspect neared the cash register, he reached over
             the counter with his left hand and grabbed the
             victim/employee. The victim stated that the defendant
             exhibited a knife and then placed the knife to her throat
             stating, “Give me all the . . . money.” (Expletive
             deleted.) The suspect then told the victim to get on the
             floor. After removing approximately $196 from the cash
             register, the suspect left the store on foot.

      Our study of the record convinces us that the defendant “physically

restrained” the clerk in the Subway Restaurant to “facilitate” his robbery of that

establishment, and also, incidentally, that he “physically restrained” the clerk in

both the robbery of the Bakery (Count III) and the robbery of the Chinese

Restaurant (Count V).

      In support of our resolution of the present controversy, see United States v.

Fisher, 132 F.3d 1327 (10th Cir. 1997) and United States v. Roberts, 898 F.2d

1465 (10th Cir. 1990).

      In United States v. Roberts, at page 1470, we spoke as follows:

                    Finally, we address Roberts’ claim that the court erred
             in determining that the victim was physically restrained during
             the course of the offense. Under the guidelines, “‘[p]hysically
             restrained’ means the forcible restraint of the victim such as by
             being tied, bound, or locked up.” Id. (n.1(i)). The district
             court was of the view “that the examples set forth in the

                                         -4-
             guidelines are by way of illustration and not limitation, and not
             exclusion.” Rec., supp. vol.I, at 16. We agree. “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.” United States v. Stokley, 881 F.2d 114, 116 (4th
             Cir. 1989). We have no difficulty in concluding that a victim
             who is held around the neck at knifepoint is denied freedom of
             movement so as to be physically restrained. (Emphasis ours.)

      In United States v. Fisher, at pp. 1329-1330, we spoke as follows:

                    Although Mr. Fisher argues that restraint occurs only
             when a victim is either physically touched or forced to do
             something at gunpoint, we reject this limitation. Physical
             restraint is not limited to physical touching of the victim. See
             United States v. Doubet, 969 F.2d 341, 346 (7th Cir. 1992).
             Rather, physical restraint occurs whenever a victim is
             specifically prevented at gunpoint from moving, thereby
             facilitating the crime. See id. at 346-47; United States v.
             Jones, 32 F.3d 1512, 1519 (11th Cir. 1994); United States v.
             Thompson, 109 F.3d 639, 641 (9th Cir. 1997). (Emphasis
             ours.)

      In our view, the record amply supports the increase in defendant’s offense

level by two levels because he physically restrained the victim from “freedom of

movement.”

      Judgment affirmed.

                                               Entered for the Court

                                               Robert H. McWilliams
                                               Senior Circuit Judge




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