UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 97-4660
TOBARIS ANIBAL PAUL, a/k/a Shot,
a/k/a Big Shot,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Rebecca B. Smith, District Judge.
(CR-97-9)

Submitted: September 15, 1998

Decided: October 1, 1998

Before NIEMEYER and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Beth M. Farber, Acting Federal Public Defender, Baltimore, Mary-
land, for Appellant. Helen F. Fahey, United States Attorney, Janet S.
Reincke, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Tobaris Anibal Paul of bank robbery in violation
of 18 U.S.C. § 2113(a) & (d) (1994), and carrying a firearm during
a crime of violence in violation of 18 U.S.C. § 924(c) (1994). Paul
appeals only the district court's application of a two-level physical
restraint enhancement in calculation of his sentence. The district court
applied the enhancement pursuant to the United States Sentencing
Guidelines Manual § 2B3.1(b)(4)(B) (Nov. 1995). Finding no error,
we affirm.

Paul does not contest the factual findings made by the district
court. We review purely legal issues, such as the interpretation of the
guidelines, on a near de novo basis. United States v. Daughtrey, 874
F.2d 213, 217 (4th Cir. 1989). The robbery guideline provides for a
two-level enhancement "if any person was physically restrained to
facilitate commission of the offense or to facilitate escape." USSG
§ 2B3.1(b)(4)(B).

The commentary to § 2B3.1 contains two statements regarding
physical restraint. Application Note 1 states that the term "physically
restrained" is defined in commentary to § 1B1.1, which is the general
definitions section of the Guidelines. In that section, physically
restrained "means the forcible restraint of the victim such as by being
tied, bound, or locked up." USSG § 1B1.1, comment. (n.1(I)) (empha-
sis added). The background commentary to USSG § 2B3.1 also dis-
cusses physical restraint. It states that "[t]he guideline provides an
enhancement for robberies where a victim was forced to accompany
the defendant to another location, or was physically restrained by
being tied, bound, or locked up." USSG § 2B3.1, comment. (backg'd)
(emphasis added). The definitions are somewhat different because the
definition in the definition section uses "such as" and the commentary
states "restrained by being tied, bound, or locked up."

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Paul argues that the language in the background to§ 2B3.1 should
be used without reference to § 1B1.1. Using that definition, Paul
argues that the enhancement should not be applied because he did not
tie up, bind, or lock up the victim. This court has examined whether
the definition of physical restraint in § 1B1.1 is limited to the exam-
ples of being tied, bound, or locked up. In United States v. Stokley,
881 F.2d 114 (4th Cir. 1989), this court held that the definition is not
inclusive and that the enhancement may be applied when other forms
of restraint are used. See Stokley, 881 F.2d at 116. Because § 2B3.1
specifically refers to § 1B1.1 for the definition of physically
restrained, we find that analysis under that section is proper. See
USSG § 2B3.1, comment. (n.1). Moreover, in Stokley, we rejected the
narrow reading of the terms of the Guideline that Paul proposes and
relied on a more straightforward interpretation of the language of
§ 1B1.1. See id. Paul does not contest the facts found by the district
court regarding the force used against the victim. The district court
found that during the course of the robbery, Paul grabbed a teller,
placed a gun to her head, made physical threats, and forced her to lead
Paul into the vault. This course of conduct was enough to qualify for
application of the physical restraint enhancement.

Finding no error to the district court's application of the two-level
enhancement, we affirm the sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the Court and argument would not aid the deci-
sional process.

AFFIRMED

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