UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4796


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PARISH KEJUAN MCNEIL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:11-cr-00161-BO-4)


Submitted:   July 31, 2013                 Decided:   September 9, 2013


Before KING, AGEE, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dennis   H.  Sullivan,  Jr.,  SULLIVAN  &  WAGONER  LAW  FIRM,
Wilmington, North Carolina, for Appellant.   Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Joshua L.
Rogers, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Parish    Kejuan    McNeil      appeals   the     eighty-seven   month

sentence he received after he pled guilty to interference with

commerce by robbery, and aiding and abetting, 18 U.S.C. §§ 1951,

2 (2006).         McNeil contends that the district court erred in

applying    enhancements       for   a   firearm      being    “otherwise    used”

during     the    robbery,   see     U.S.    Sentencing       Guidelines     Manual

§ 2B3.1(b)(2)(B) (2011), and physical restraint of the victims,

USSG § 2B3.1(b)(4)(B).         We affirm.

            McNeil and three co-defendants robbed a mini-mart in

Leland, North Carolina.            Co-defendant Michael Hasty carried a

handgun.     He ordered two customers who were at the counter to

move away from the counter and no further.                  He then pointed the

gun at the two clerks, one at the register and one on a stool at

the end of the counter.         McNeil or another defendant grabbed the

clerk on the stool by the arm and forced her to move to the

register.        At gun point, Hasty ordered the clerks to hand over

all the money or be killed.          The robbers then fled.

            At his sentencing, McNeil objected to an enhancement

recommended in the presentence report for a firearm having been

“otherwise used” during the offense.                  The enhancement applies

when the firearm is not discharged, but the conduct in question

is more than brandishing, displaying, or possessing the firearm.

See USSG § 2B3.1 cmt. n.1, § 1B1.1 cmt. n.1(I).                    “Brandished,”

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as defined in Application Note 1(C) to § 1B1.1, means that “all

or part of the weapon was displayed, or the presence of the

weapon was otherwise made known to another person, in order to

intimidate that person.”        McNeil also objected to an enhancement

for restraint of a victim.                In this circuit, the enhancement

applies where a victim’s movements are restricted at gunpoint.

See   United    States   v.   Wilson,       

    (4th   Cir.    1999);

United States v. Stokley, 

 (4th Cir. 1989).                           The

district court overruled both objections.                       On appeal, McNeil

challenges the increases for a firearm “otherwise used” and for

physical restraint of the victims.

           A      firearm      is         “otherwise       used”        under    USSG

§ 2B3.1(b)(2)(B) when use of the gun goes beyond brandishing and

becomes actually menacing.           See United States v. LaFortune, 

, 161-62 (1st Cir. 1999).                   McNeil cites LaFortune to

explain   the    distinction,       but    relies    on   a     contrary   decision,

United States v. Moerman, 

 (6th Cir. 2000), in which

the Sixth Circuit held that pointing a firearm in a threatening

manner did not amount to more than brandishing.                         However, the

Sixth Circuit has since held that, following Amendment 601 to

the definition of brandished in USSG § 1B1.1, “[p]ointing a gun

while telling someone what to do obviously goes beyond what now

constitutes brandishing[.]”           United States v. Bolden, 

, 463 (6th Cir. 2007); see also United States v. Zenone, 1998

                                           

 at *8 (4th Cir. Aug. 10, 1998) (Nos. 97-4190, 97-4179)

(adopting     similar       reasoning       in       decisions      from     the    Ninth,

Seventh, and Third Circuits).                    McNeil provides no persuasive

contrary authority.           Therefore, we conclude that the district

court did not err in finding that the enhancement applied in

McNeil’s case.

            Next,    McNeil     points      out       that    the   term     “physically

restrained,”        see     USSG      § 2B3.1(b)(4)(B),             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.”                     He acknowledges that the

§ 1B1.1 definition is not limited to the examples given.                                  See

United States v. Stokley, 

, 116 (4th Cir. 1989).                               In

fact,    while    “[s]ome     circuits      view       § 2B3.1(b)(4)(B)           narrowly,

applying the enhancement only when the defendant uses the gun to

restrain    the    victim     through    bodily        contact      or     some    type    of

confinement,”       other    courts,     including           this   court,        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, 

, 607 (4th

Cir.    2011),    cert.     denied,   132       S.    Ct.    1815   (2012);       see    also

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Wilson,    198   F.3d   at   472   (holding   that   victim   was    physically

restrained when she was prevented at gunpoint from leaving her

car until defendants took her money and took control of her

car).     In Dimache, two bank tellers who were “ordered to the

floor at gunpoint were prevented from both leaving the bank and

thwarting    the    bank     robbery[,]”      and    thus    were    physically

restrained within the meaning of § 2B3.1(b)(4)(B).                  665 F.3d at

608.

            Relying on United States v. Mikalajunas, 

(4th Cir. 1991), McNeil contends that the enhancement does not

apply in his case because the victims were restrained briefly,

just long enough for the robbery to be completed.                   We conclude

that Dimache and Wilson control, that Mikalajunas is inapposite,

and that the district court correctly applied the enhancement

for physical restraint.

            We therefore affirm the district court’s judgment.               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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