United States of America v.  Rodney K. Johnson, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4576 
RODNEY K. JOHNSON, JR.,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(2:05-cr-00151-RGD)
Argued: March 15, 2007
Decided: June 27, 2007
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Michael wrote the opinion,
which Judge Williams and Judge Shedd joined.
COUNSEL
ARGUED: Frances Hemsley Pratt, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Joseph L.
Kosky, Special Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff, Acting Federal Public
Defender, Walter B. Dalton, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,

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Virginia, for Appellant. Chuck Rosenberg, United States Attorney,
Alexandria, Virginia, for Appellee.
OPINION
MICHAEL, Circuit Judge:
Rodney K. Johnson, Jr. pled guilty to two counts of aggravated
sexual abuse after he raped and assisted another man, Michael S.
Hodge, in raping a woman on a United States naval base. See 18
U.S.C. § 2241(a)(1) and § 2. Johnson appeals his sentence, arguing
that he should not have received a two-level enhancement for physical
restraint of the victim under United States Sentencing Commission,
Guidelines Manual (U.S.S.G.), § 3A1.3 (2003). He claims that the
physical restraint factor was taken into account through his offense
guideline, § 2A3.1, which required a four-level enhancement for the
conduct described (forcible rape) in his statute of conviction. U.S.S.G.
§ 2A3.1(b)(1). We disagree because physical restraint is not a neces-
sary element of his offense under § 2241(a)(1). Force is an element
of the offense, but forcible rape may be committed without resort to
physical restraint, as defined in the guidelines. We therefore affirm
Johnson’s sentence.
I.
On the night of July 29, 2004, a 22-year-old woman went to a
nightclub in Norfolk, Virginia, with friends. After several hours of
dancing and drinking, the woman walked outside to the club’s park-
ing lot. There, she ran across Johnson and Hodge. The three, who
were not previously acquainted, struck up a conversation. The two
men soon offered the woman a ride home, and she accepted. Hodge,
a member of the U.S. Navy, was the driver. Instead of proceeding to
the woman’s residence, Hodge drove the threesome to the Naval
Amphibious Base Little Creek in Norfolk. Hodge proceeded to a park
inside the base, where the party got out of the car, sat down at a picnic
table, and began to talk. After a few minutes Hodge knocked the
woman to the ground with a punch to the head. He pulled off her
pants, held her hands, and covered her mouth to prevent her from
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screaming. While Hodge restrained the victim, Johnson raped her.
The men then traded places, and Hodge raped the victim while John-
son held her down by gripping her arms. During the rape Hodge
punched the victim repeatedly in the face, body, and head with his
fists. When they were through, Johnson and Hodge left the then-
unconscious victim in the park and drove away.
Johnson pled guilty to two counts of aggravated sexual abuse for
raping the victim and for aiding and abetting Hodge’s rape of her. See
18 U.S.C. § 2241(a)(1) and § 2. The presentence report (PSR) recom-
mended a base offense level of 27 because the offense involved crimi-
nal sexual abuse. See U.S.S.G. § 2A3.1(a) (2003). The PSR also
recommended a four-level enhancement because the offense involved
conduct (forcible rape) described in 18 U.S.C. § 2241(a), see id.
§ 2A3.1(b)(1); a two-level enhancement because the victim was phys-
ically restrained, see id. § 3A1.3; and a three-level downward adjust-
ment because Johnson accepted responsibility for his offense, see id.
§ 3E1.1(a). The district court adopted these recommendations and
overruled Johnson’s objection to the enhancement for physical
restraint. Johnson’s final offense level of 30, when combined with his
criminal history category of V, yielded an advisory guideline range
of 151 to 188 months of imprisonment. The court sentenced Johnson
to 188 months in prison.
Johnson appeals his sentence, arguing that the district court erred
in applying the guideline § 3A1.3 enhancement for physical restraint
of the victim. His argument raises questions of law that we review de
novo. United States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006).
II.
A defendant receives a two-level sentence enhancement if the "vic-
tim was physically restrained in the course of the offense." U.S.S.G.
§ 3A1.3. Johnson argues that § 3A1.3 is inapplicable because his act
of holding down the victim while Hodge raped her does not fit within
the guidelines’ definition of physical restraint. See id. § 1B1.1 cmt.
n.1(K) (defining physical restraint as forcible restraint and giving
examples). Johnson argues in the alternative that he is exempt from
§ 3A1.3’s enhancement because the physical restraint factor was
accounted for in his offense guideline, § 2A3.1, which imposes a
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four-level enhancement for his offense of using force to cause the vic-
tim to engage in a sexual act. Id. § 2A3.1(b)(1). We reject these argu-
ments.
A.
According to the guidelines’ definition, "‘[p]hysically restrained’
means the forcible restraint of the victim such as by being tied, bound,
or locked up." Id. § 1B1.1 cmt. n.1(K). The definition’s "use of the
words ‘such as’ [make it] apparent that ‘being tied, bound, or locked
up’ are listed by way of example rather than limitation." United States
v. Stokley, 881 F.2d 114, 116 (4th Cir. 1989). Thus, courts have deter-
mined that the following acts of restraint are sufficiently akin to the
examples to constitute forcible restraint: shoving a victim back into,
and preventing her from leaving, a bomb-rigged room, id.; holding a
gun to a victim’s head to prevent her from leaving her carjacked vehi-
cle, United States v. Wilson, 198 F.3d 467, 472 (4th Cir. 1999); and
repeatedly pushing and grabbing two rape victims to prevent them
from leaving a bedroom, Arcoren v. United States, 929 F.2d 1235,
1246 (8th Cir. 1991). We likewise hold here that Johnson’s act of
gripping the victim’s arms and holding her down while Hodge raped
her is sufficiently akin to the definition’s examples (being tied, bound,
or locked up) to constitute forcible restraint. His act therefore quali-
fies as physical restraint under the guidelines’ definition.
B.
We now consider Johnson’s argument that he is exempt from
guideline § 3A1.3’s two-level enhancement. The enhancement does
not apply (1) when "the offense guideline specifically incorporates
[the physical restraint] factor" or (2) when "the unlawful restraint of
a victim is an element of the offense itself," as in kidnapping and
abduction offenses, for example. U.S.S.G. § 3A1.3 cmt. n.2. The
offense guideline applied to Johnson requires a four-level enhance-
ment "[i]f the offense involved conduct described in 18 U.S.C.
§ 2241(a) or (b)." Id. § 2A3.1(b)(1). Because the offense guideline is
triggered by the conduct described in § 2241(a), the answer to the
question of whether unlawful restraint is an element of the § 2241(a)
offense effectively answers the question of whether the offense guide-
line specifically incorporates victim restraint.
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Johnson was convicted of violating 18 U.S.C. § 2241(a)(1), which
describes the offense as "knowingly caus[ing] another person to
engage in a sexual act . . . by using force against that other person."
Unlike the kidnapping and abduction offenses that are specifically
exempted from guideline § 3A1.3, see U.S.S.G. § 3A1.3 cmt. n.2,
conviction under § 2241(a)(1) does not hinge on whether the victim
was restrained or confined. Instead, conviction under § 2241(a)(1)
depends on whether the victim was compelled by force to submit to
a sexual act. Compare United States v. Hughes, 716 F.2d 234, 238
(4th Cir. 1983) ("the offense of kidnapping is complete by the unwill-
ing confinement, by any of the enumerated means, of an individual
who is held for ransom, reward, or otherwise") with Arcoren, 929
F.2d at 1248 (§ 2241(a)(1) offense "does not necessarily include the
physical restraint that [guideline] section 3A1.3 covers").
Johnson argues that the force element in the context of forcible
rape is essentially equivalent to restraint. Section 2241(a)(1) does not
define force, but we agree with other courts that the statute requires
force "sufficient to overcome, restrain, or injure a person; or the use
of a threat of harm sufficient to coerce or compel submission by the
victim." United States v. Weekley, 130 F.3d 747, 754 (6th Cir. 1997);
United States v. Lauck, 905 F.2d 15, 17 (2d Cir. 1990); see also H.R.
Rep. 99-594, at 14 n.54 (1986), as reprinted in 1986 U.S.C.C.A.N.
6186, 6194 n.54a (providing essentially the same definition of "force"
for § 2241(a)(1) purposes).
Under this definition the force element in § 2241(a)(1) may be sat-
isfied without evidence of physical restraint similar to the examples
(being tied, bound, or locked up) in the guidelines’ definition of phys-
ical restraint. In other words, the "use of force does not necessarily
entail physical restraint." Arcoren, 929 F.2d at 1248. For example, a
rapist could inflict blows upon his victim until she submits to a sexual
act without restraining her in the manner contemplated by the physi-
cal restraint guideline, § 3A1.3. See United States v. Myers, 733
F.Supp. 1307, 1309 (D. Minn. 1990). Similarly, an application of
force to open the victim’s legs for intercourse has been deemed suffi-
cient to satisfy § 2241(a)(1)’s force element, see United States v. Wil-
liams, 89 F.3d 165, 166, 168 (4th Cir. 1996), but this force would not
constrain the victim’s movement in the manner contemplated by the
physical restraint guideline. Finally, § 2241(a)(1)’s force element may
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be satisfied by inference when the offender has disproportionately
greater strength than, or coercive power over, the victim. See United
States v. Willie, 253 F.3d 1215, 1220 (10th Cir. 2001); United States
v. Lucas, 157 F.3d 998, 1002 (5th Cir. 1998); United States v. La-
Roche, 83 F.3d 958, 959 (8th Cir. 1996). An offender’s ability to
commit forcible rape without resort to physical restraint leads us to
conclude that unlawful restraint is not an element of the § 2241(a)(1)
offense or specifically incorporated in the offense guideline. Accord-
ingly, Johnson is not exempt from the two-level enhancement under
guideline § 3A1.3 for his physical restraint of the victim.
* * *
Rodney K. Johnson, Jr.’s sentence is
AFFIRMED.
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