                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 15-4134


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

JAMES MCGOWAN,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Timothy M. Cain, District Judge.
(6:13-cr-00905-TMC-1)


Submitted:   October 29, 2015              Decided:   November 17, 2015


Before DUNCAN, AGEE, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Christopher R. Antley, DEVLIN & PARKINSON, P.A., Greenville,
South Carolina, for Appellant. Carrie Fisher Sherard, Assistant
United   States  Attorney,  Greenville,  South   Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     James McGowan appeals from his convictions and 192-month

sentence following a jury trial.             The jury found him guilty of

armed bank robbery, conspiracy to use a firearm in furtherance

of a crime of violence, and brandishing a firearm during a crime

of violence.      On appeal, McGowan’s counsel has filed a brief

pursuant   to     Anders     v.     California,      386   U.S.    738   (1967),

concluding that there are no meritorious issues for appeal but

questioning whether the district court should have dismissed the

superseding     indictment    and    whether   the    leadership    enhancement

was erroneous.      The Government has declined to file a brief.

McGowan has filed a pro se supplemental brief, raising several

additional issues.         After careful consideration of the entire

record, we affirm.

                                        I.

     McGowan first contends that that both of his indictments

were improper because the Government misrepresented facts to the

grand jury.     However, by failing to challenge the indictment in

the district court in a timely manner under Fed. R. Crim. P.

12(b)(3), McGowan has waived his right to raise these issues on

appeal.    See United States v. Vernon, 723 F.3d 1234, 1261 (11th

Cir. 2013) (holding that, absent good cause, untimely challenge

to indictment is waived).



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                                          II.

     McGowan next contends that the district court plainly erred

in   admitting       a     firearm      expert’s         testimony     regarding       his

determination that the item one of the robbers is holding in the

bank video pictures was possibly a firearm.                           However, McGowan

failed to object to the testimony below, and thus, as counsel

concedes, this claim is reviewed for plain error.                            We conclude

that the testimony of other witnesses that one or both of the

robbers carried a firearm rendered any error in the expert’s

identification harmless.

                                         III.

     McGowan        next    avers      that       his    sentence      was    improperly

enhanced       under           U.S.      Sentencing            Guidelines         Manual

§ 2B3.1(b)(4)(B) (2013).              Section 2B1.3(b)(4)(B) provides for a

two-offense-level          increase     when       any    person      “was    physically

restrained     to    facilitate        commission         of   the     offense    or    to

facilitate     escape.”          The    term       “physically        restrained,”       is

defined in Application Note 1(K) to § 1B1.1 as “the forcible

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

up,” whereas the background commentary to § 2B3.1 states more

definitely   that        the   enhancement         applies     when    a     victim    “was

physically   restrained         by     being      tied,    bound,     or     locked    up.”

However, the § 1B1.1 definition is not limited to the examples

given.     See United States v. Stokley, 881 F.2d 114, 116 (4th

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Cir. 1989).        In fact, we view the enhancement “broadly, applying

it when the defendant points the gun at the victim, thereby

restricting     the    victim’s         movements     and   ensuring     the    victim’s

compliance with the desires of the defendant.”                     United States v.

Dimache, 665 F.3d 603, 606-07 (4th Cir. 2011).

      Here, the robbers pushed a bank teller down towards the

floor and grabbed a customer and told her to “get down” in front

of the counter.           In addition, the robbers brandished at least

one     gun   and     threatened        to     shoot,      essentially     restraining

everyone in the bank from leaving or preventing them from taking

other    action.          Accordingly,         this     enhancement      was    properly

applied.

                                              IV.

      McGowan challenges the district court’s two-offense-level

enhancement under USSG § 3C1.1 for being an “organizer” of the

criminal      activity.           Our     review      of    the   district       court’s

assessment of a leadership role enhancement is for clear error.

See United States v. Thorson, 633 F.3d 312, 317 (4th Cir. 2011).

The   Guidelines      provide      for    a    two-level     adjustment        where    the

defendant     is    found    to    be    an    organizer,     leader,     manager,       or

supervisor     in     a     conspiracy        that     involves   less     than        five

participants.         USSG    §   3B1.1(c).           In   determining    whether       the

defendant exercised control over at least one other participant,



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see United States v. Rashwan, 328 F.3d 160, 166 (4th Cir. 2003),

the court should consider:

     the exercise of decision making authority, the nature
     of participation in the commission of the offense, the
     recruitment of accomplices, the claimed right to a
     larger share of the fruits of the crime, the degree of
     participation in planning or organizing the offense,
     the nature and scope of the illegal activity, and the
     degree of control and authority exercised over others.

USSG § 3B1.1(c) cmt. n.4.

     The district court found an accomplice’s testimony to be

credible, and that witness stated at trial that, at several key

points during the crime, he followed McGowan’s directions and

decisions.       Moreover, McGowan was the point of contact for the

two others involved in the crime and the glue holding the three

together.    On the basis of this evidence, we conclude that the

district    court    did   not    commit        clear    error   in   imposing     the

leadership enhancement.

                                           V.

     Finally, McGowan claims that the Government improperly had

various investigators do separate analyses on the cell phones

involved.     McGowan also asserts that one witness testified to

preparing a map that he did not prepare.                    However, McGowan has

provided    no    specifics      as   to   how     the   analyses     or   maps    are

different    or    how   the   multiple         investigators    prejudiced       him.

Moreover, the reports and maps were not objected to at trial.



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Accordingly, we conclude that McGowan suffered no prejudice from

any error.

                                       VI.

     In   accordance      with     Anders,   we    have       reviewed    the   entire

record in this case for meritorious issues and have found none.

Accordingly, we affirm McGowan’s convictions and sentence.                       This

court requires that counsel inform his client, in writing, of

his right to petition the Supreme Court of the United States for

further   review.      If    the    client   requests         that   a   petition   be

filed,    but   counsel     believes    that      such    a    petition    would    be

frivolous, then counsel may move in this court for leave to

withdraw from representation.           Counsel’s motion must state that

a copy thereof was served on the client.

                                                                            AFFIRMED




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