                                                                           FILED
                            NOT FOR PUBLICATION                              OCT 5 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-30351

               Plaintiff - Appellee,             D.C. No. 4:10-cr-00060-SEH

  v.
                                                 MEMORANDUM *
ARVIN BON RED STAR,

               Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       Arvin Bon Red Star appeals from his jury-trial conviction and 216-month

sentence for aggravated sexual abuse, in violation of 18 U.S.C. §§ 1153(a) and

2241(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       Red Star contends that the district court improperly applied a two-level

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
enhancement under U.S.S.G. § 3A1.3 for restraining his victim during the

commission of the offense. Red Star argues that there was no evidence of physical

restraint presented at trial, and that any evidence of physical restraint had already

been taken into account by the statute and the sentencing Guidelines.

      The record supports the district court’s application of the enhancement

because the evidence shows that Red Star physically restrained the victim in such a

way that “added to the basic crime.” United States v. Old Chief, 571 F.3d 898, 901

(9th Cir. 2009); United States v. Foppe, 993 F.2d 1444, 1452-53 (9th Cir. 1993)

(defining physical restraint). Restraint of the victim is not an element of the

offense of aggravated sexual abuse nor was it was incorporated in the aggravated

sexual abuse offense Guideline applied here. See 18 U.S.C. § 2241; U.S.S.G.

§ 2A3.1. Accordingly, the district court did not err by increasing Red Star’s base

offense level two levels under § 3A1.3. See U.S.S.G. § 3A1.3 cmt. n.2; Old Chief,

571 F.3d at 900.

      AFFIRMED.




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