           Case: 19-12422   Date Filed: 07/24/2020   Page: 1 of 6



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12422
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:18-cr-00091-JDW-AAS-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                              versus

ANTHONY PHILLIPS, III,
a.k.a. Twin,

                                                        Defendant-Appellant.

                      ________________________

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

                             (July 24, 2020)

Before JORDAN, NEWSOM, and ED CARNES, Circuit Judges.

PER CURIAM:
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      Anthony Phillips, III, appeals his 240-month total sentence after pleading

guilty to two counts of carjacking and two counts of brandishing a firearm in

furtherance of a carjacking.

                                           I.

      Phillips and his father committed two carjackings together in January 2018.

The first one was on January 1 in Tampa, Florida. The victim, W.C., was walking

to his car in an apartment complex parking lot when Phillips and his father, both of

whom were armed, approached him. Phillips’ father threatened W.C. at gunpoint

and hit him with the butt of his rifle. Then Phillips and his father stole W.C.’s car.

It was later found disassembled at a chop shop.

      The second carjacking was two days later, on January 3. Phillips, his father,

and two unindicted co-conspirators drove to the parking lot of a pediatrician’s

office in St. Petersburg, Florida. They pulled up behind a car that was occupied by

S.L. and M.P. and their one-year-old daughter. Phillips and the two

co-conspirators exited their car and started shouting at S.L. and M.P. Phillips

pressed a gun against M.P.’s chest and ordered her to give him the keys to her car.

She did. One of Phillips’ co-conspirators also held a gun to S.L.’s chest. The

carjackers let S.L. and M.P. pull their daughter out of the car, and then they stole

the car and fled the scene. Phillips’ father fled in the car that the four carjackers

had arrived in.


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      The police later found Phillips and his father inside S.L. and M.P.’s car at a

gas station in St. Petersburg. They arrested both men.

      A grand jury indicted Phillips for two counts of carjacking, in violation of

18 U.S.C. § 2119(1), and two counts of brandishing a firearm during a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Phillips pleaded guilty to all

four charges without a plea agreement.

      The Presentence Investigation Report recommended, in relevant part, that

the court impose a two-level enhancement under U.S.S.G. § 2B3.1(b)(4)(B)

because Phillips physically restrained M.P. by pressing a gun against her chest.

Phillips objected to that enhancement, arguing that he did not restrain anyone

because he did not use any “forcible physical restraint.” At sentencing the district

court overruled that objection and imposed a total sentence of 240 months in

prison. This is Phillips’ appeal.

                                           II.

      Phillips’ lone contention on appeal is that the district court erred by applying

a two-level enhancement under § 2B3.1(b)(4)(B) for restraining a victim. We

review a sentencing court’s findings of fact for clear error and its application of the

guidelines de novo. United States v. Victor, 719 F.3d 1288, 1290 (11th Cir. 2013).

      Section 2B3.1(b)(4)(B) states: “[I]f any person was physically restrained to

facilitate commission of the offense or to facilitate escape, increase by 2 levels.”


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The guidelines define “physically restrained” as “the forcible restraint of the victim

such as by being tied, bound, or locked up.” Id. cmt. n.1; id. § 1B1.1 cmt. n.1(L).

We have explained that the “use of the modifier ‘such as’ in the definition

indicates that the illustrations of physical restraint are listed by way of example

rather than limitation.” United States v. Jones, 32 F.3d 1512, 1518 (11th Cir.

1994) (quotation marks omitted). As a result, any conduct that “ensured the

victims’ compliance and effectively prevented them from leaving” qualifies as a

physical restraint under the guidelines. Id. at 1519.

      The parties cite two published decisions in which we held that threatening a

victim with a gun can count as physical restraint. First, in Jones the defendant and

his accomplices robbed a bank and brandished guns during the robbery. 32 F.3d at

1514–15. They ordered the employees and customers into the bank’s safe room,

told them to lie down on the floor, and closed (but did not lock) the safe room door

as they fled. Id. at 1515. We held that the victims had been “physically

restrained” under the guidelines even though they were not locked in the safe room

and physically could have left. Id. at 1519. We said that “the obvious presence of

handguns” was enough to restrain the victims because it “ensured the victims’

compliance and effectively prevented them from leaving the room for a brief

period while the robbers fled the scene.” Id.




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      Second, in Victor the defendant pointed a pretend gun at a bank employee

and ordered her to bring him to the teller line. 719 F.3d at 1289. (In reality, the

“gun” was an assault rifle magazine that the defendant was holding in his jacket

pocket.) Id. We held 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 within the guidelines’ meaning.” Id. at 1290.

      Under the logic of Jones and Victor, Phillips physically restrained M.P.

within the meaning of § 2B3.1(b)(4)(B) by pressing a gun against her chest and

ordering her to hand over her car keys. In that moment M.P. was restrained just as

surely as if her hands had been tied — she could not leave for fear of being shot in

the chest by Phillips. By threatening her with a gun, Phillips “ensured [M.P.’s]

compliance and effectively prevented [her] from leaving.” Jones, 32 F.3d at 1519.

      Phillips argues that Jones and Victor are distinguishable because they

involved “forcible physical restraint” while his crime did not. But there is no

meaningful difference between his conduct and the conduct in those two cases.

Phillips’ own brief shows why this case is like Jones and Victor: he says that those

cases “illustrate physical restraint such that the victim has no alternative but

compliance,” and he admits that M.P. “likely felt as though she had no alternative

but to comply” with his commands. We agree with that.




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      Finally, Phillips argues that “[i]f [his conduct] rose to the level of physical

restraint, every threat of violence with the apparent ability to carry it out would

qualify for this enhancement.” Not necessarily so. The question is whether the

threat of violence “ensured the victims’ compliance and effectively prevented them

from leaving.” Jones, 32 F.3d at 1519. Here, Phillips’ threat to shoot M.P. in the

chest had that effect.

      AFFIRMED.




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