           Case: 13-15767    Date Filed: 09/24/2014   Page: 1 of 8


                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15767
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:13-cr-20524-KMM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

ALEX CHRISTOPHER WESTBROOK,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (September 24, 2014)

Before WILLIAM PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM:
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      Alex Christopher Westbrook appeals his 114-month sentence following his

guilty plea to conspiracy to commit a Hobbs Act robbery and brandishing a firearm

in furtherance of a crime of violence. We affirm.

                                I. BACKGROUND

      On July 3, 2013, Westbrook and his codefendants drove to a McDonald’s in

Miami, Florida, to commit armed robbery. Westbrook and one co-defendant, Leon

Escourse-Westbrook (“Escourse”), entered the restaurant, while the other

codefendant waited in, and later drove, the “get-away car.” R. at 202-03. During

the robbery, Westbrook brandished a gun and ordered everyone to the floor.

Westbrook pointed the gun at several customers, from whom Westbrook took

several electronic items.

      On July 19, 2013, a federal grand jury indicted Westbrook and two

codefendants for conspiracy to commit a Hobbs Act robbery, in violation of 18

U.S.C. § 1951(a) (Count 1); Hobbs Act robbery, in violation of 18 U.S.C.

§ 1951(a) (Count 2); and brandishing a firearm in furtherance of a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 3). In September

2013, Westbrook pled guilty to Counts 1 and 3 with a plea agreement in which the

government agreed to seek the dismissal of Count 2 at sentencing. During

Westbrook’s plea proceeding, the government proffered the facts, and Westbrook

testified the government’s proffer was true.


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      Westbrook’s presentence investigation report (“PSI”), which applied the

2012 Sentencing Guidelines Manual, provided a description of the offense conduct

that was materially identical to the government’s proffer. The PSI further reported

one of the victims told police one robber approached him with a gun and told him

to get on the floor, which he did. The robbers then ordered two other patrons to get

on the ground and to give them everything they had. An iPhone and a laptop were

taken from them. Surveillance video showed the shorter of the two robbers had

used the gun. Westbrook is several inches shorter than Escourse.

      The PSI assigned Westbrook a base offense level of 20, under U.S.S.G.

§ 2B3.1(a). The probation officer added 2 levels, because a person was physically

restrained to facilitate the commission of the offense or escape, under

§ 2B3.1(b)(4)(B). The PSI accorded a 3-level acceptance-of-responsibility

reduction, under U.S.S.G. § 3E1.1, which yielded an offense level of 19. The

probation officer assigned Westbrook a criminal history category of I, which

resulted in a Sentencing Guidelines range of 30-37 months of imprisonment for

Count 1. Westbrook was subject to a statutory maximum prison term of 20 years

on Count 1, and a consecutive term of 7 years to life on Count 3. See 18 U.S.C.

§§ 924(c)(1)(A)(ii), (D)(ii), 1951(a).

      The district judge conducted a joint sentencing hearing for Westbrook and

his codefendants. Westbrook and Escourse objected to the imposition of a


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physical-restraint enhancement. The judge determined the enhancement was

appropriate under United States v. Victor, 719 F.3d 1288 (11th Cir. 2013).

Westbrook’s counsel stated: “Also, the fact that he is getting 84 months for the

firearm, it just seems like a double hit for doing the same action of having a

firearm. But as I’ve set forth, I don’t think that should apply. But your Honor has

ruled on that.” R. at 275-76.

      The district judge calculated an offense level of 19, a criminal history

category of I, and a resulting Guidelines range of 30-37 months of imprisonment as

to Count 1, to be followed by an 84-month sentence as to Count 3. Consequently,

the judge imposed a 30-month sentence on Count 1 and a consecutive 84-month

sentence on Count 3, to be followed by 5 years of supervised release. The judge

stated he had “considered the statements of all parties, the presentence report,

which contains the advisory Guidelines, and the statutory factors as set forth in

Title 18, United States Code, Section 3553.” R. at 277. When asked for

objections, Westbrook renewed his physical-restraint-enhancement objection. The

judge dismissed Count 2 on the government’s motion.

      Westbrook argues on appeal that the district judge erred in imposing the

two-level § 2B3.1(b)(4)(B) enhancement. He contends he used the gun not to

move or restrain the victims, but to ensure compliance with his “request,” and he

did not “pistol whip” anyone. Appellant’s Br. at 12. He argues applying


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§ 2B3.1(b)(4)(B) in his case would subject every armed robber to the enhancement

unless no victims were present during the robbery. Westbrook appears to argue for

the first time on appeal that, because he was subject to an increased mandatory

minimum sentence for brandishing a gun, the two-level enhancement resulted in

impermissible double-counting based on the same conduct.

                                 II. DISCUSSION

      We review the district judge’s application of the Sentencing Guidelines de

novo and his factual findings for clear error. Victor, 719 F.3d at 1290. We also

review de novo a double-counting claim. United States v. Webb, 665 F.3d 1380,

1382 (11th Cir. 2012) (per curiam). Assignments of error not raised before the

district judge, however, are reviewed on appeal for plain error. United States v.

Rodriguez, 627 F.3d 1372, 1380 (11th Cir. 2010). Establishing plain error requires

showing (1) an error (2) that was plain, (3) affected one’s substantial rights, and

(4) seriously affected the fairness of the judicial proceedings. Id. Under

§ 2B3.1(b)(4)(B), a two-level sentencing enhancement applies “if any person was

physically restrained to facilitate commission of the offense or to facilitate escape.”

U.S.S.G. § 2B3.1(b)(4)(B). The § 2B3.1 commentary explains the enhancement

applies in “robberies where a victim was forced to accompany the defendant to

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

Id. § 2B3.1 cmt. background. The Guidelines define “physically restrained” as


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“the forcible restraint of the victim such as by being tied, bound, or locked up.” Id.

§ 1B1.1 cmt. n.1(K).

      The physical-restraint enhancement is not limited to these examples, but also

applies when a defendant’s conduct “ensured the victims’ compliance and

effectively prevented them from leaving a location.” Victor, 719 F.3d at 1290. In

Victor, the defendant entered a credit union with his hand in his jacket as if

concealing a gun and directed a lobby employee to the teller line. Id. at 1289. We

concluded that “by threatening the lobby employee with what the employee

believed to be a gun to prevent her from escaping, [the defendant] physically

restrained her” under § 2B3.1(b)(4)(B). Id. at 1290. Although the defendant

argued on appeal that he had not moved the employee “for a significant distance,”

we highlighted that § 2B3.1(b)(4)(B) did not require the victim to be moved at all.

Id.; see also United States v. Jones, 32 F.3d 1512, 1519 (11th Cir. 1994) (per

curiam) (concluding a § 2B3.1(b)(4)(B) enhancement applied to a bank robbery

where, “[a]lthough no threats were made, the obvious presence of handguns

ensured the victims’ compliance and effectively prevented them from leaving the

room for a brief period while the robbers fled the scene”).

      “Impermissible double counting occurs only when one part of the Guidelines

is applied to increase a defendant’s punishment on account of a kind of harm that

has already been fully accounted for by application of another part of the


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Guidelines.” Webb, 665 F.3d at 1382 (citation and internal quotation marks

omitted). Double counting a factor during sentencing is permitted if the

Sentencing Commission intended that result and each Guidelines section in

question concerns conceptually separate notions relating to sentencing. Id.

      Westbrook has not shown the district judge erred in imposing the

§ 2B3.1(b)(4)(B) enhancement. Contrary to Westbrook’s suggestion, the

enhancement did not require the movement of victims, much less “pistol

whip[ping].” See Victor, 719 F.3d at 1290; Appellant Br. at 12. He moved several

victims by ordering them to the floor at gunpoint and thereby “effectively

prevented them from leaving” the restaurant. See Victor, 719 F.3d at 1290.

      Westbrook’s double-counting claim also is meritless, regardless of the

standard of review. Westbrook’s challenge to § 2B3.1(b)(4)(B) involves the

application of a Guidelines provision and a statutory minimum sentence, and not

two Guidelines provisions. See Webb, 665 F.3d at 1382. In any event, the

physical-restraint enhancement and the § 924(c)(1)(A)(ii) mandatory-minimum

sentence implicated separate acts. See id. The § 924(c)(1)(A)(ii) sentence was

based on Westbrook’s brandishing of a gun and would have applied regardless of

whether any physical restraint was involved. See 18 U.S.C. § 924(c)(1)(A)(ii).

The § 2B3.1(b)(4)(B) enhancement, however, was based on Westbrook’s

additional act of ordering several victims to lie on the floor at gunpoint, which


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“ensured the victims’ compliance and effectively prevented them from leaving.”

Victor, 719 F.3d at 1290.

      AFFIRMED.




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