                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 27 2002
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                 No. 01-4055
                                               (D.C. No. 2:98-CR-586-03-C)
    PHOMA XAYASO,                                        (D. Utah)

                Defendant - Appellant.

    _______________________________

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                No. 01-4100
                                               (D.C. No. 2:98-CR-586-02-C
    MESA RITH, also known as Jago                       (D. Utah)
    Rith, also known as Mesa Jago, also
    known as Rith Mesa,

                Defendant - Appellant.


                             ORDER AND JUDGMENT         *




Before KELLY and BALDOCK , Circuit Judges, and        BRORBY , Senior Circuit
Judge.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

      Phoma Xayaso and Mesa Rith were convicted of armed bank robbery

(18 U.S.C. § 213(a) and (d)) and carrying and using a firearm during a crime of

violence (18 U.S.C. § 924(c)). In this appeal, they ask that their sentences be

vacated and their cases be remanded for resentencing. Appellants were

co-defendants and the resolution of their issues relies on identical facts and a

common record. Accordingly, we have companioned these appeals for

disposition. See Fed. R. App. P. 3(b)(2)(2). We exercise jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742 and we affirm.


                               Factual Background

      On November 24, 1998, defendant Xayaso and an individual named Sonasi

Pouha robbed the Zion’s First National Bank in Magna, Utah. Both robbers were

masked and gloved, and carried firearms. They left the bank with about $7,300.

Defendant Rith was the driver of the get-away car.

      During the robbery, Mr. Xayaso mainly stayed in the lobby area, holding a

rifle at waist level. At one point, he approached a branch manager who was


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talking on the telephone, silently pointed the rifle at her, and hung up the phone.

Mr. Pouha advanced on the tellers, pointed the revolver, and shouted at them to

give him their money. One of the tellers voluntarily fell to the floor in an effort

to activate an alarm. As soon as Mr. Pouha noticed the teller, he shouted for him

to get up.

      The charges against Mr. Xayaso and Mr. Rith proceeded to a jury trial.

Mr. Pouha entered a guilty plea and testified at trial on behalf of the government.

The co-defendants were convicted of armed bank robbery and carrying and using

a firearm during that crime.

      At sentencing, the district court found that the co-defendants had

brandished their weapons, resulting in an increase of the mandatory minimum

sentence from five years to seven years.   See 18 U.S.C. § 924(c)(1)(A)(ii).

Furthermore, the court concluded that the facts warranted a two-level sentencing

increase for the physical restraint of a person “to facilitate commission of the

offense,” USSG § 2B3.1(b)(4)(B). Mr. Xayaso was sentenced to a total prison

term of 161 months; Mr. Rith was sentenced to a total prison term of 221 months.

      On appeal, Mr. Xayaso and Mr. Rith raise substantially the same

arguments: (1) that the “brandishing” of a firearm is not a sentencing factor, but

rather is an element of the crime of carrying a firearm during a crime of violence,

which must be charged in indictment and proved beyond reasonable doubt; and


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(2) that the district court erred by adjusting their offense level upward based on

findings of physical restraint of a victim during the robbery.


                         United States v. Xayaso , No. 01-4055

       For his first issue on appeal, Mr. Xayaso states that the indictment in this

case charged him with using and carrying a firearm, in violation of 18 U.S.C.

§ 924(c), but did not include a reference to brandishing. He argues that, under the

reasoning of Apprendi v. New Jersey , 530 U.S. 466 (2000), the brandishing clause

of § 924(c)(1)(A)(ii) sets forth an element of the offense that must be specifically

charged in the indictment.    1



       Mr. Xayaso did not raise this challenge before the district court. We

therefore review the issue for plain error. Fed. R. Crim. P. 52(b). Under the

plain-error standard, appellant must demonstrate that the trial court erred, the

error was plain, and the error affected his substantial rights.   See United States v.



1
       Section 924(c)(1)(A) provides, in pertinent part:

       [A]ny person who, during and in relation to any crime of
       violence . . . uses or carries a firearm, or who, in furtherance of any
       such crime, possesses a firearm, shall, in addition to the punishment
       provided for such crime of violence . . . --

       (i) be sentenced to a term of imprisonment of not less than 5 years;

       (ii) if the firearm is brandished, be sentenced to a term of
       imprisonment of not less than 7 years. . . .

                                              -4-
Cernobyl , 255 F.3d 1215, 1218 (10th Cir. 2001) (citing          United States v. Olano ,

507 U.S. 725, 732 (1993)). This court has discretion to remedy plain error if the

error seriously affects the fairness, integrity or public reputation of the judicial

proceedings. Id. (quoting Olano , 507 U.S. at 732).

       The Supreme Court has recently made it plain that a district court does not

err in basing a two-year increase in the minimum sentence on a judicial finding of

brandishment. The Court directly held that brandishing is a “sentencing factor[]

to be found by the judge, not an offense element to be found by the jury.”           Harris

v. United States , 122 S. Ct. 2406, 2414 (2002).      2
                                                          Contrary to Mr. Xayaso’s

contentions, this factor “need not be alleged in the indictment, submitted to the

jury, or proved beyond a reasonable doubt.”          Id . at 2420.   3
                                                                         We uphold the

imposition of the increased mandatory minimum sentence under

§ 924(c)(1)(A)(ii).

       Mr. Xayaso also asserts that the district court erred in applying the physical

restraint guideline to his offense. “We review the district court’s interpretation

and application of the Sentencing Guidelines de novo and its factual findings for

clear error.”   United States v. Turner , 285 F.3d 909, 915 (10th Cir. 2002)


2
       Harris achieved a majority of the Court’s vote only as to Parts I, II, and IV
of the opinion. The statement on which we rely here is contained in Part II, and is
therefore the holding of the Court
3
       This language is from Part IV of the         Harris opinion.

                                              -5-
(quotation omitted), petition for cert . filed , (U.S. July 1, 2002) (No. 02-5120).

We give “due deference” to the district court’s application of the sentencing

guidelines to the facts. 18 U.S.C. § 3742(e).

      The sentencing guidelines authorize a two-level upward adjustment from

the base offense level for a robbery “if any person was physically restrained to

facilitate commission of the offense or to facilitate escape.” USSG

§ 2B3.1(b)(4)(B). Mr. Xayaso argues that his and Mr. Pouha’s conduct toward

bank employees did not amount to physical restraint.

      In United States v. Fisher , 132 F.3d 1327 (10th Cir. 1997), we held that

“[p]hysical restraint is not limited to physical touching of the victim. Rather,

physical restraint occurs whenever a victim is specifically prevented at gunpoint

from moving, thereby facilitating the crime.     Id. at 1329-30 (citation omitted).

see also United States v. Pearson , 211 F.3d 524, 525-26 (10th Cir.) (citing    Fisher

approvingly and noting that “we have determined an enhancement for physical

restraint is applicable when the defendant uses force, including force by gun

point, to impede others from interfering with commission of the offense”),      cert.

denied , 531 U.S. 899 (2000).

      Under the well-established Tenth Circuit interpretation of USSG

§ 2B3.1(b)(4)(B), the district court properly applied the guideline to Mr. Xayaso’s

case. Using his rifle at close range, Mr. Xayaso restrained the bank manager from


                                           -6-
remaining on the telephone and reporting the robbery to the person on the other

end of the line. Additionally, Mr. Pouha pointed his pistol at a teller attempting

to activate an alarm and ordered him to stand. Both of these actions amounted to

the use of force in an attempt to facilitate the bank robbery. The two-level

adjustment for restraint of a victim was proper.


                        United States v. Rith , No. 01-4100

      Mr. Rith admits that, as the getaway car driver, he was an aider and abetter

in the bank robbery and thus liable for the acts committed by Mr. Xayaso and

Mr. Pouha. For the same reasons we have rejected identical arguments made by

Mr. Xayaso, we determine that Mr. Rith’s arguments fail. The increased

mandatory minimum sentence for brandishing a firearm, under § 924(c)(1)(A)(ii),

and the two-level adjustment for the physical restraint of a victim, USSG

§ 2B3.1(b)(4)(B), were appropriate. We grant the government’s motion for leave

to incorporate and use the record on appeal as designated in Mr. Xayaso’s case,

No. 01-4055.




                                         -7-
                                   Conclusion

      In United States v. Xayaso , No. 01-4055, the judgment of the district court

is AFFIRMED. In United States v. Rith , No. 01-4100, the judgment of the district

court is AFFIRMED.


                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




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