UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4267

KENNETH O'NEIL ROUSE, a/k/a Neal,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CR-95-196)

Submitted: December 26, 1996

Decided: February 26, 1997

Before WILKINS and LUTTIG, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Kenneth C. Krawcheck, Charleston, South Carolina, for Appellant.
J. Rene Josey, United States Attorney, Ben A. Hagood, Jr., Assistant
United States Attorney, Charleston, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

A jury convicted Kenneth O'Neil Rouse of attempted bank robbery
in violation of 18 U.S.C. § 2113(a) & (d) (1994) and carrying a fire-
arm during a crime of violence in violation of 18 U.S.C. § 924(c)
(1994). Rouse appeals only the district court's application of a two-
level physical restraint enhancement in calculation of his sentence.
The district court applied the enhancement pursuant to USSG
§ 2B3.1(b)(4)(B) (Nov. 1994). Finding no error, we affirm.

Rouse does not contest the factual findings made by the district
court. We review purely legal issues, such as the interpretation of the
guidelines, on a near de novo basis. United States v. Daughtrey, 874
F.2d 213, 217 (4th Cir. 1989). The robbery guideline provides for a
two-level enhancement "if any person was physically restrained to
facilitate commission of the offense or to facilitate escape." USSG
§ 2B3.1(b)(4)(B).

The commentary to § 2B3.1 contains two statements regarding
physical restraint. Application Note 1 states that the term "physically
restrained" is defined in commentary to § 1B1.1, which is the general
definitions section of the Guidelines. In that section, physically
restrained "means the forcible restraint of the victim such as by being
tied, bound, or locked up." USSG § 1B1.1, comment. (n.1(i)) (empha-
sis added). The background commentary to USSG § 2B3.1 also dis-
cusses physical restraint. It states that "[t]he guideline provides an
enhancement for robberies where a victim was forced to accompany
the defendant to another location, or was physically restrained by
being tied, bound, or locked up." USSG § 2B3.1, comment. (backg'd)
(emphasis added). The definitions are somewhat different because the
definition in the definition section uses "such as" and the commentary
states "restrained by being tied, bound, or locked up."

Rouse argues that the language in the background to§ 2B3.1
should be used because it is more restrictive. Using that definition,
Rouse argues that the enhancement should not be applied because he
did not tie up, bind, or lock up the victim. This court has examined
whether the definition of physical restraint in§ 1B1.1 is limited to the

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examples of being tied, bound, or locked up. In United States v.
Stokley, 881 F.2d 114 (4th Cir. 1989), this court held that the defini-
tion is not all inclusive and that the enhancement may be applied
when other forms of restraint are used. Stokley , 881 F.2d at 116.
Because § 2B3.1 specifically refers to § 1B1.1 for the definition of
physically restrained, we find that analysis under that section is
proper. See USSG § 2B3.1, comment. (n.1).

Rouse does not contest the facts found by the district court regard-
ing the force used against the victim. The district court found that the
victim was thrown down, had Rouse lying on top of him, a gun
pointed at him, and that he was physically held. This course of con-
duct was enough to qualify for application of the physical restraint
enhancement.

Rouse's second argument against application of the enhancement
is that the force used against the victim does not meet the definition
of physical restraint because it was a momentary or brief holding.
Rouse relies upon United States v. Mikalajunas , 936 F.2d 153 (4th
Cir. 1991), to support his position. In Mikalajunas, the defendant
chased, caught, and stabbed to death his victim. The court held that
the victim had not been physically restrained because the brief hold-
ing during the stabbing was already encompassed in the murder
guideline. Mikalajunas, 936 F.2d at 156. We noted, however, that the
duration of restraint is a critical factor in applying the enhancement.
Id.

The evidence at trial included a videotape showing much of the
robbery. The district court found that several minutes elapsed while
the victim was under the control of Rouse and his co-defendant. The
force Rouse used to restrain the victim was neither brief nor momen-
tary. It was not significantly similar to the situation in Mikalajunas.
We therefore find that this argument is without merit.

Finally, Rouse argues that it was improper to apply the enhance-
ment because the restraint was also an element of the crime. Rouse
was charged with and convicted of attempting to rob the bank by
force, violence, and intimidation, and assaulting and putting in jeop-
ardy the life of another by the use of a firearm. While the language
of the bank robbery statute and Rouse's indictment uses the terms

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force and violence, those terms do not have the same meaning as
physical restraint and therefore physical restraint is not a contem-
plated element of the offense.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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