                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         DEC 23 1997
                                  PUBLISH                            PATRICK FISHER
                                                                              Clerk
              UNITED STATES COURT OF APPEALS
                       TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                    No. 97-5056

 RAY BESHERA FISHER,

       Defendant-Appellant.


                   Appeal from the United States District Court
                     for the Northern District of Oklahoma
                            (D.C. No. 96-CR-148-K)


Submitted on the briefs:

Michael G. Katz, Federal Public Defender, and Susan L. Foreman, Assistant
Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

Stephen C. Lewis, United States Attorney, and T. Scott Woodward, First Assistant
United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.


SEYMOUR, Chief Judge.
      Ray Beshera Fisher, who was indicted along with four others, pled guilty to

one count of conspiracy to commit armed bank robbery in violation of 18 U.S.C. §

371 and one count of armed bank robbery in violation of 18 U.S.C. § 2113(a) and

(d). The district court sentenced him to 136 months imprisonment followed by

five years of supervised release pursuant to U.S.S.G. § 2B3.1. In doing so, the

court added the following enhancements to the base offense level: two levels for

causing a victim bodily harm and two levels for physical restraint of a victim. 1

In addition, the court ordered Mr. Fisher and other co-defendants to each pay

restitution in the amount of $10,282.71. Mr. Fisher asserts on appeal that the

district court improperly increased his sentence for physical restraint of a victim

and improperly ordered him to pay restitution for the entire amount of loss,

including losses for which he was not responsible. We affirm. 2



                                          I.

       The relevant facts are as follows. Coconspirators asked Mr. Fisher to

drive them to a bank in a Jeep Cherokee. En route, Mr. Fisher learned that the


      1
       The district court added other enhancements, none of which is at issue in
this appeal.
      2
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.

                                         -2-
Jeep had been stolen and that the purpose of the trip was to rob the bank.

Coconspirators entered the bank, leaving Mr. Fisher outside with a child’s walkie-

talkie to warn them if anything went wrong. Inside the bank, one coconspirator

hit a security guard on the head with a stolen firearm and then held the gun to the

guard’s head as the other coconspirators jumped the teller counter and took

$9,657.00. Mr. Fisher later received approximately $700.00 as his share of the

robbery proceeds. He did not participate in the original theft of the Jeep or the

firearm.

      Under the guidelines for robbery, U.S.S.G. § 2B3.1, the district court set

Mr. Fisher’s base offense level at 20. The court then added the following

fourteen levels for specific offense characteristics under U.S.S.G. § 2B3.1(b)(1)

to (5): two for the taking of financial institution property; seven because a

firearm was discharged; two because the security guard sustained bodily injury;

two because the guard was physically restrained; and one because a firearm was

taken from the guard during the robbery. Mr. Fisher contends on appeal that the

district court improperly determined the security guard had been “physically

restrained” within the meaning of the sentencing guidelines, and that the court

erred in setting the amount of restitution. We address each argument in turn.




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                                          II.

      The facts underlying the conviction are undisputed. We therefore review

de novo the district court’s application of the sentencing guidelines. See United

States v. Roberts, 898 F.2d 1465, 1469 (10th Cir. 1990).

      The guideline governing robbery sets forth a variety of offense

characteristics allowing enhancement of the base sentence. A sentence may be

increased two levels for conduct resulting in bodily injury to a victim, U.S.S.G. §

2B3.1(b)(3), or for conduct resulting in physical restraint of a victim to facilitate

the crime, U.S.S.G. § 2B3.1(b)(4). Mr. Fisher argues that the conduct underlying

the striking of the security guard with the firearm was improperly double-counted

because the act of hitting someone with a gun necessarily requires that the gun

will be “held to” that person at some point. We disagree.

      The application instructions accompanying the sentencing guidelines

contemplate cumulative application of the enhancements for specific offense

characteristics:

      The offense level adjustments from more than one specific offense
      characteristic within an offense guideline are cumulative (added
      together) unless the guideline specifies that only the greater (or
      greatest) is to be used. Within each specific offense characteristic
      subsection, however, the offense level adjustments are alternative;
      only the one that best describes the conduct is to be used.




                                          -4-
U.S.S.G. § 1B1.1, comment. (n.4). 3 Impermissible double counting or cumulative

sentencing

      “occurs when the same conduct on the part of the defendant is used
      to support separate increases under separate enhancement provisions
      which necessarily overlap, are indistinct, and serve identical
      purposes.”

United States v. Blake, 59 F.3d 138, 140 (10th Cir. 1995) (quoting United States

v. Flinn, 18 F.3d 826, 829 (10th Cir. 1994)).

      The same or similar conduct may justify the application of more than one

enhancement where more than one discrete effect emanates from the conduct.

“[N]o double counting occurs where, although the conduct underlying the two

enhancements is the same, a single guideline provision requires the district court

to increase the defendant’s sentence based on different aspects of the defendant’s

conduct.” United States v. Perkins, 89 F.3d 303, 310 (6th Cir. 1996). Here, Mr.

Fisher’s sentence was increased because the guard was physically restrained with

the gun and because, either separately or in the process, he suffered bodily injury.


      3
       Mr. Fisher argues that since he received a seven-level enhancement for
discharge of a firearm under § 2B3.1(b)(2)(A), the two-level increase for
“otherwise” using the firearm to physically restrain a victim is barred by the rule
requiring that only the category that best describes the conduct be applied. Mr.
Fisher’s argument is misplaced. The district court increased Mr. Fisher’s
sentence by two levels for using the firearm to effect a physical restraint of the
security guard pursuant to § 2B3.1(b)(4)(B), a separate subcategory of offense
characteristics, not for “otherwise using” the firearm pursuant to §
2B3.1(b)(2)(B). In this regard, use of the firearm was incidental to its result --
that being physical restraint -- as we discuss infra.

                                         -5-
Moreover, in this case, the conduct warranting the physical restraint enhancement

was actually distinct from the conduct supporting the bodily injury enhancement

in that the coconspirator struck the security guard with the gun and then

restrained him by holding the gun to his head for a period longer than it took to

strike him. See id.

      Mr. Fisher next argues that the enhancement for physical restraint

constituted double-counting because the effort to dissuade the guard from moving

and interfering with the robbery by holding a gun to his head added nothing to the

basic crime of robbery and thus had already been counted in the base offense

level. On this theory, the coconspirator’s conduct in holding the gun to the

guard’s head is subsumed in the crime of robbery because all robbery involves a

taking by force. Once again, we disagree.

      It is well established that “physical restraint is not an element of the

offense of robbery.” United States v. Rosario, 7 F.3d 319, 321 (2d Cir. 1993).

“Robbery need not involve a physical holding, and one can envision various types

of robberies involving no restraint at all.” United States v. Mikalajunas, 936 F.2d

153, 156 (4th Cir. 1991). The enhancement for physical restraint is applicable

when the defendant uses force to impede others from interfering with commission

of the offense. See Rosario, 7 F.3d at 321 (“Rosario facilitated the commission of

the offense in that the victim ‘could do nothing about [his] situation because of


                                          -6-
the physical restraint.’ Facilitation of the offense is the ‘added something’ which

justifies the imposition of the physical restraint enhancement.”) (citations

omitted).

      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). Keeping someone from doing something is inherent within

the concept of restraint, and in this case one coconspirator deliberately kept the

security guard at bay by pointing a gun directly at his head while two others

looted the teller counter. See, e.g., United States v. Foppe, 993 F.2d 1444, 1452

(9th Cir. 1993) (“The dictionary defines ‘restraint’ as (1) the act of holding back

from some activity or (2) by means of force, an act that checks free activity or

otherwise controls.”) (citation omitted); United States v. Robinson, 20 F.3d 270,

279 (7th Cir. 1994) (spraying of mace effected physical restraint because it

prevented the victim from chasing after robber and impeded victim’s movement




                                          -7-
for some time). The district court properly applied the two-level increase for

physical restraint.



                                         III.

      Mr. Fisher also appeals the district court’s order of restitution contending

the court erred by ordering restitution in an amount that exceeded the total loss

and by holding Mr. Fisher accountable for the theft of the Jeep for which he was

not responsible. Because Mr. Fisher did not object to the order of restitution at

sentencing, we review it for plain error. See Fed. R. Crim. P. 52(b); United States

v. Lampley, No. 96-7074, 1997 WL 644459, at *2 (10th Cir. Oct. 20, 1997).

      It is true that the sentencing court may not order restitution in an amount

greater than the total loss caused. See United States v. Arutunoff, 1 F.3d 1112,

1121 (10th Cir. 1993). Here, although coconspirators were also ordered to repay

the full amount of the loss, the Judgment and Sentence specifies that payment

shall not exceed the compensable injury. There was thus no error.

      With respect to the Jeep, we find nothing in the record to indicate that the

district court committed error that was “particularly egregious,” “obvious,” or

“substantial,” the plain error standard, in determining the amount to be paid for

the damage to the Jeep. See United States v. Gilkey, 118 F.3d 702, 704 (10th Cir.

1997). Moreover, a disputed question of fact is deemed waived if not raised


                                         -8-
below. See id.; United States v. Ciapponi, 77 F.3d 1247, 1252 (10th Cir.), cert.

denied, 116 S. Ct. 1839 (1996). Inasmuch as the amount assessed for the theft of

the Jeep, as opposed to the damage subsequently done to it, is a disputed fact

question we decline to address it.

      We AFFIRM Mr. Fisher’s sentence and the order of restitution.




                                        -9-
