UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-5714

DWAYNE ALLEN EVANS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-95-74)

Submitted: April 23, 1996

Decided: May 8, 1996

Before WIDENER and WILKINS, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, C. Cooper Fulton, Assis-
tant Federal Public Defender, Charleston, West Virginia, for Appel-
lant. Deval L. Patrick, Assistant Attorney General, Dennis J. Dimsey,
Seth M. Galanter, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Dwayne Allen Evans was sentenced to imprisonment of twelve
months and one day following his guilty plea to deprivation of rights
under color of law, 18 U.S.C.A. § 242 (West Supp. 1996). He con-
tests the district court's application of a 2-level adjustment for
restraint of victim. United States Sentencing Commission, Guidelines
Manual § 3A1.3. (Nov. 1994). We affirm.

Evans was a Logan County police officer when he arrested Jona-
than Wriston for drunk driving during the night of April 24-25, 1993.
He handcuffed Wriston's hands behind his back and took him to the
Logan County Jail. There Evans became angry because he believed
that Wriston had spat in the police car. Evans punched Wriston in the
ribs four or five times. Later, while Evans was doing the paper work
for the arrest, he discovered that Wriston had given him a false identi-
fication card. He took Wriston out of his cell, again cuffed his hands
behind his back, seated him in the booking area, and kicked him in
the head. Evans decided that a second breathalyzer test should be per-
formed under Wriston's real name. He and another police officer took
Wriston upstairs in the elevator. While in the elevator, Evans asked
Wriston, "Where do you want it, in the back of the head or the kid-
neys?" Evans then punched Wriston multiple times about the body.
The beating injured Wriston, but not seriously. At no time did Wris-
ton offer any resistance to Evans.

The district court adopted the probation officer's recommendation
to apply USSG § 2H1.4(a)(2), which provides an offense level of 6
plus the offense level for any underlying offense, adding to that 6
levels from USSG § 2A2.3 (Minor Assault) and an adjustment for
restraint of victim under USSG § 3A1.3, which provides for a 2-level

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increase if "a victim was physically restrained in the course of the
offense."1

On appeal, Evans argues that the adjustment did not apply because
the handcuffing was incidental to a lawful arrest rather than an act
committed in the course of the beatings. The adjustment does not
apply where unlawful restraint of the victim is an element of the
offense or where restraint is specifically incorporated into the offense
guideline. USSG § 3A1.3, comment. (n.2). Neither of these excep-
tions applies in Evans's case.

Evans makes two related arguments: (1) that his offense occurred
after he lawfully restrained Wriston and thus the restraint was not part
of the offense, and (2) that the offense guideline incorporates the
restraint factor, thus making the adjustment inapplicable.

First, Evans contends that the guideline only applies when a victim
is restrained during an unlawful arrest. He relies on three cases. In
United States v. Newman, 982 F.2d 665 (1st Cir. 1992), cert. denied,
___ U.S. ___, 62 U.S.L.W. 3244 (U.S. Oct. 4, 1995) (No. 92-1703),
an intoxicated prisoner who was handcuffed to the bars of his cell was
beaten by a police officer. A restraint adjustment was not given and
the issue was never raised. As a result, the case provides no guidance
here.

In United States v. Epley, 52 F.3d 571, 583 (6th Cir. 1995), a
restraint adjustment was applied where police officers conspired to
make a false arrest of a victim who was handcuffed during the arrest.
The applicable guideline was USSG § 2H1.1 (Conspiracy to Interfere
with Civil Rights). While the specific right abridged was the right to
be free of seizure without probable cause, id. at 576, the appeals court
found that restraint was not an element of the offense and was not
incorporated into the guideline. The court rejected the argument that
the act of false arrest includes restraining the victim. Id. at 583. The
unlawfulness of the arrest was not the dispositive factor, as Evans rep-
resents.
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1 With a 2-level reduction for acceptance of responsibility, Evans's
offense level was 12, he was in criminal history category I, and his
guideline range was 10-16 months.

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A restraint adjustment was also given in United States v. Tholl, 895
F.2d 1178, 1184-85 (7th Cir. 1990), in which the defendants posed as
federal agents, "raided" a drug dealer's residence, pretended to arrest
him, seized cash and drugs from him, and forced him to drive around
with them to identify other drug houses. Tholl's underlying offense
was impersonation of a federal agent. The applicable guideline,
USSG § 2J1.4(b)(1), provides a 6-level increase "if the impersonation
was committed for the purpose of conducting an unlawful arrest,
detention, or search." However, the appeals court found that "an arrest
. . . does not necessarily entail the sort of forcible physical restraint
contemplated by section 1B1.1, Application Note 1(i)."2 Id. at 1185.
As in Epley, the unlawfulness of the arrest was not the deciding fac-
tor.

Restraint is not an element of an offense under 18 U.S.C.A. § 242.
See Epley, 52 F.3d at 583. The right abridged was the right to be
secure from the use of unreasonable force by one acting under color
of law. The same offense could be committed against an unrestrained
victim.

Second, Evans argues that the aggravating factor in his case was
that an assault was committed by a police officer on a person in cus-
tody, which implies restraint, and that the addition of six levels to the
offense level for minor assault accounted for that factor. However,
restraint is not specifically taken into account in either USSG § 2H1.4
or 2A2.3. Id. Consequently, the district court correctly applied the
adjustment.

The sentence imposed by the district court is therefore affirmed.
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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2 Application Note 1 to § 3A1.3 states that the term "physically
restrained" is defined in the commentary to § 1B1.1.

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