                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4098


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MELVIN LEWIS BAYLOR,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District   of  North   Carolina,  at  Charlotte.     Robert J.
Conrad, Jr., Chief District Judge. (3:05-cr-00282-RJC-CH-1)


Submitted:    September 30, 2008            Decided:   October 21, 2008


Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Randolph M. Lee, LAW OFFICES OF RANDOLPH M. LEE, Charlotte,
North Carolina, for Appellant.    Gretchen C. F. Shappert, United
States Attorney, Adam Morris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Melvin    Lewis       Baylor   pled      guilty    to    conspiracy      to

commit     robbery      affecting      interstate        commerce,          18   U.S.C.

§ 1951(a)    (2000)     (Count     One);   aiding      and    abetting      a    robbery

affecting     interstate      commerce,        18   U.S.C.    §§ 1951,       2   (2000)

(Count    Two);   and     brandishing      and      discharging      a   firearm     in

furtherance of a crime of violence, 18 U.S.C.A. § 924(c) (West

2000 & Supp. 2008) (Count Three).                   He received a sentence of

thirty-six months imprisonment for Counts One and Two, and a

consecutive ten-year sentence for the § 924(c) count.                            Baylor

appeals his sentence, contending that the district court erred

in applying a two-level enhancement for physical restraint, U.S.

Sentencing Guidelines Manual (USSG) § 2B3.1(b)(4)(B) (2006).                         We

affirm.

            Baylor,       Trisco    McFarland,        and     Nathan     Cuthbertson

together    robbed    a    shoe    store       in   Charlotte,      North    Carolina.

Cuthbertson and McFarland both carried firearms.                     McFarland went

to the back of the store and robbed two customers while Baylor

and Cuthbertson went up to the store manager, Shawn Miller, who

was at the cash register.            Miller was also armed, but concealed

his pistol under his shirt.           Cuthbertson put his gun at the back

of Miller’s head and told Miller to open the cash drawer.                            He

told Miller to hand him a paper bag that was on the shelf below



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the cash drawer, and then Cuthbertson handed the bag to Baylor,

who put money into it.

              While Cuthbertson was distracted, Miller drew his gun

and    shot        both     Cuthbertson         and     Baylor     multiple       times.

Cuthbertson        was    fatally    wounded,         but     McFarland    and    Baylor

escaped and stole a car at gunpoint from two men who had just

parked in the parking lot.

              Before sentencing, Baylor objected unsuccessfully to

the   enhancement         recommended      in     the       presentence    report      for

restraint of a victim, arguing that Miller was not restrained in

a way that would trigger the enhancement under § 2B3.1(b)(4)(B).

The   district      court    found   that       the   enhancement     was    warranted

under United States v. Wilson, 198 F.3d 467 (4th Cir. 1999)

(holding   that      victim    was   physically         restrained    when       gun   was

placed to her head).           The court granted the government’s motion

for a substantial assistance departure and imposed a sentence of

thirty-six months imprisonment for Counts One and Two, and a

mandatory consecutive sentence of ten years for the § 924(c)

count, for a total sentence of 156 months.

              Baylor      appeals    his    sentence,         contending     that      the

sentence      is     procedurally       unreasonable           because      the     court

incorrectly applied the enhancement for physical restraint.                              A

sentence is reviewed for reasonableness, applying an abuse of

discretion standard.          Gall v. United States, 128 S. Ct. 586, 597

                                            3
(2007); see also United States v. Go, 517 F.3d 216, 218 (4th

Cir. 2008).                The appellate court must determine whether the

district           court     correctly       calculated          the    advisory     guideline

range, because a failure to do so constitutes a “significant

procedural           error”      that    may     render      a    sentence       unreasonable.

Gall,        128    S.     Ct.   at   597.       The   appellate         court    (unlike    the

district court)              may then apply a presumption of reasonableness

to a sentence within the guideline range.                              Go, 517 F.3d at 218;

see also Gall, 128 S. Ct. at 597; Rita v. United States, 127 S.

Ct. 2456 (2007).

                   Application        Note   1    to   § 2B3.1         defines     “physically

restrained” by adopting the definition of the term set out in

Application Note 1(K) to USSG § 1B1.1, that is “the forcible

restraint of the victim such as by being tied, bound, or locked

up.” *       The examples given in the Note are illustrative only.                           See

United States v. Johnson, 492 F.3d 254, 257 (4th Cir. 2007)

(citing United States v. Stokley, 881 F.2d 114, 116 (4th Cir.

1989),       and     noting      with   approval       the    decision      in    Wilson    that

“holding a gun to a victim’s head to prevent her from leaving




         *
       The same definition is incorporated into USSG § 3A1.3,
which provides a two-level adjustment for restraint of a victim
where the applicable guideline does not have an enhancement for
that conduct.



                                                  4
her carjacked vehicle” was “sufficiently akin to the examples to

constitute forcible restraint”).

             Baylor contends that in his case the enhancement was

error   based    on    decisions         from   the    Ninth,      Second,    and   Fifth

Circuits holding that pointing a gun at a victim to restrict his

movement    is   not    physical         restraint.          See   United     States   v.

Parker, 241 F.3d 1114, 1118-19 (9th Cir. 2001); United States v.

Anglin,    169   F.3d       154,   164    (2d   Cir.    1999);      United    States   v.

Hickman, 151 F.3d 446, 461 (5th Cir. 1998).                        However, the First

Circuit recently held that pointing a gun at a victim, while

simultaneously placing a hand on his neck and shoulder to force

him   to    kneel     and    stating,      “I    do    not    want    to     hurt   you,”

constituted physical restraint.                  United States v. Ossai, 485

F.3d 25, 33 (1st Cir.), cert. denied, 128 S. Ct. 279 (2007).

            Regardless of how other circuits view the issue, in

this Circuit the law is clear that use of a gun to restrain a

victim may constitute physical restraint within the meaning of

§ 2B3.1.     Because our precedents are controlling, the district

court did not err in finding that the victim in this case was

physically restrained when Baylor’s co-defendant placed a gun at

his neck.

            Baylor suggests that the holding in Parker should be

applied in his case.               However, a panel of this court may not

overrule a prior panel.              United States v. Simms, 441 F.3d 313,

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318 (4th Cir.), cert. denied, 127 S. Ct. 233 (2006).                           He also

suggests that our decision in United States v. Mikalajunas, 936

F.2d 153 (4th Cir. 1991), is more applicable to his case than

Johnson, because Johnson involved an obvious example of physical

restraint.          In Mikalajunas, the defendant was convicted of being

an accessory after the fact to second degree murder of a victim

who was stabbed to death.              We held that “a brief holding as part

of   a   stabbing”        did    not    meet     the    guideline      definition     of

restraint.          Mikalajunas, 936 F.2d at 156.             In this case, we are

satisfied that the facts support the enhancement.

               We    therefore    affirm        the    sentence    imposed     by    the

district    court.        We    dispense    with       oral   argument    because    the

facts    and    legal    contentions       are    adequately      presented     in   the

materials      before     the    court    and     argument     would     not   aid   the

decisional process.

                                                                               AFFIRMED




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