United States v. 2009-07-06 | 08-30317 | USA VJOHNNY OLD CHIEF | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 08-30317
v.  D.C. No.
4:08-cr-00027-SEH JOHNNY LYNN OLD CHIEF,
Defendant-Appellant. 
 UNITED STATES OF AMERICA, No. 08-30318
Plaintiff-Appellee, D.C. No.
v.  4:08-cr-00027-SEH
MAYNARD MICHAEL OLD CHIEF, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
June 5, 2009—Portland, Oregon
Filed July 6, 2009
Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Goodwin
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COUNSEL
J. Mayo Ashley, Helena, Montana, for defendant-appellant
Johnny Lynn Old Chief, Evangelo Arvanetes, Assistant Fed-
eral Public Defender, Great Falls, Montana, for defendant-
appellant Maynard Michael Old Chief.
Carl E. Rostad, Assistant United States Attorney, Great Falls,
Montana, for the plaintiff-appellee.
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OPINION
GOODWIN, Circuit Judge:
Johnny Lynn Old Chief (“Johnny Lynn”) appeals his 120-
month sentence imposed following a jury conviction for aid-
ing and abetting an assault with a dangerous weapon, in viola-
tion of 18 U.S.C. §§ 1153(a), 113(a)(3). Maynard Old Chief
(“Maynard”) also appeals his 120-month sentence from a jury
conviction for assault with a dangerous weapon, in violation
of 18 U.S.C. §§ 1153(a), 113(a)(3). We have jurisdiction pur-
suant to 28 U.S.C. § 1291, and we affirm.
FACTUAL BACKGROUND
On December 29, 2007, Johnny Lynn (a.k.a. Johnny Rot-
ten) was holding a party at his residence in the Low Rent
neighborhood of the Blackfeet Indian Reservation in Brow-
ning, Montana. The party had begun a few days before then
and involved numerous individuals, including Johnny Lynn
and Maynard, Lundy Red Head (“Red Head”), and Jay Old
Chief, and an abundance of alcohol. As witnesses described
the events, on the night in question, fights between and among
party guests began to break out. Red Head, who described
himself as “pretty drunk” at the time, eventually left Johnny
Lynn’s residence. An argument began in front of Carl La
Plant’s home, a few houses down from Johnny Lynn’s house.
Red Head then saw La Plant, accompanied by another indi-
vidual named Little Garrett Renville, come out of La Plant’s
home with “two-by-fours,” bricks, and rocks. A fight involv-
ing Red Head, Jay Old Chief, La Plant and Renville broke
out. Johnny Lynn and Maynard both approached the scene at
this time. Maynard was carrying a knife, and Jay Old Chief
picked up a metal fence post and told Red Head to stay behind
him because of Red Head’s intoxication. As Maynard contin-
ued to advance toward them with the knife in his hand, Jay
Old Chief hit Maynard in the head. Red Head described May-
nard as falling to the ground momentarily, but getting back to
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his feet shortly thereafter. Jay Old Chief ran into Red Head’s
home, and Red Head attempted to follow. To avoid being
caught by Maynard and Johnny Lynn, Red Head ducked
behind the house at 636 Low Rent. Red Head momentarily
believed he was safe, but Johnny Lynn and Maynard had in
fact caught up to him. Red Head described Johnny Lynn put-
ting Red Head’s hands behind his back while Red Head strug-
gled, and when Red Head raised his arm to protect himself,
Maynard stabbed him on his right bicep with his knife. Red
Head broke loose from Johnny Lynn’s grasp and swung at
Maynard with his right arm while Johnny Lynn still had a
hold of his left hand. Red Head jerked his body back, and then
was stabbed again by Maynard, this time on his left arm and
shoulder. Red Head fell to his knees and began screaming for
help, and was then stabbed by Maynard for the third time, this
time in the neck.
Shortly after the above described events, Officer Edwin
Salois answered a call about a disturbance in the neighbor-
hood and arrived at the scene. The armed officer eventually
persuaded Maynard to drop the knife, Meanwhile, Johnny
Lynn was on top of Red Head, holding him. After Maynard
released Red Head, Officer Salois told Maynard to stay on the
ground. Several other officers arrived and took Johnny Lynn
and Maynard into custody.
On May 6, 2008, Maynard and Johnny Lynn’s consolidated
jury trial began before Judge Haddon in Great Falls, Montana.
After deliberations of less than a day, the jury returned a ver-
dict of guilty to the single count presented. Sentences were
imposed on August 25, 2008, and this timely appeal followed.
I. The District Court Did Not Err in Applying the
Physical Restraint Enhancement
Johnny Lynn’s first argument, in which he is joined by
Maynard Old Chief, contends that the restraint necessary to
accomplish an assault merges with the assault itself, and the
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two-level sentencing enhancement they received pursuant to
United States Sentencing Guidelines (“U.S.S.G.”) § 3A1.3 is
therefore invalid.
[1] The relevant portion of the Guidelines reads as follows:
“If a victim was physically restrained in the course of the
offense, increase by 2 levels.” U.S.S.G. § 3A1.3. In the Com-
mentary following that section, however, the Commission
notes that the adjustment is not to be applied where “the
offense guideline specifically incorporates this factor, or
where the unlawful restraint of a victim is an element of the
offense itself (e.g., this adjustment does not apply to offenses
covered by § 2A4.1 (Kidnapping, Abduction, Unlawful
Restraint)).” App. n.2, U.S.S.G. § 3A1.3. Appellants argue
that the act of stabbing victim Red Head necessarily involved
restraint and is therefore excepted from the two-level
enhancement as described in Application Note 2.
Appellants rely exclusively on a Fourth Circuit case from
1991, in which a divided panel held that because “[e]very
murder involves the ultimate restraint,” and “[s]uch terminal
restraint is simply an element of the crime of homicide,” the
district court incorrectly added a two-level enhancement to
defendant’s total offense level. United States v. Mikalajunas,
936 F.2d 153, 156 (4th Cir. 1991).
Appellants’ reliance on Mikalajunas is misplaced.1 The
Mikalajunas case involved murder, not an assault, and the
1The Fourth Circuit’s reasoning in Mikalajunas has been criticized, see
United States v. Checora, 175 F.3d 782, 791-92 (10th Cir. 1999), but the
question of whether the restraint enhancement can be applied to a homi-
cide conviction is not before us. Here, “[t]he physical restraint that
occurred in this case is not a necessary element of the crime[s] of [convic-
tion]. The same offense[s] could be committed against an unrestrained vic-
tim. Indeed, [assault] may be committed in many different ways and it
need not involve the sort of [restraint] that occurred in this case. The
restraint of [Red Head] to prevent his escape added to the offense, it facili-
tated its commission.” Checora, 175 F.3d at 792.
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language presented in the majority opinion in Mikalajunas
suggests that the circumstances surrounding a murder are
unique for purposes of applying the two-level restraint
enhancement. The majority acknowledged that “[a]n upward
adjustment for restraint is to be made in the context of an act
which adds to the basic crime.” Id.
[2] Here, Johnny Lynn’s restraint of the victim was an act
that added to the basic crime. Even if a stabbing necessarily
involves some minimal level of restraint, see United States v.
Parker, 241 F.3d 1114, 1118-19 (9th Cir. 2001) (declining to
apply restraint enhancement where bank robber pointed gun
at bank employee and told her get down, because it was
“likely that Congress meant for something more than briefly
pointing a gun at a victim and commanding her once to get
down to constitute physical restraint, given that nearly all
armed bank robberies will presumably involve such acts”).
[3] We have no difficulty concluding the degree of restraint
here is not inherent in every stabbing. Johnny Lynn chased
down Red Head to prevent him from evading Maynard Old
Chief and then held Red Head’s arms as Maynard stabbed
him three times. Although Red Head briefly broke free from
Johnny Lynn’s grasp, Johnny Lynn’s restraint of Red Head
prevented Red Head from protecting himself from at least two
of Maynard’s thrusts and prolonged the assault by preventing
Red Head from fleeing. Johnny Lynn’s restraint could not be
described as brief; it was ongoing during the course of the
offense.
The officer who first arrived at the scene testified that
Johnny Lynn was still on top of Red Head, even after the
near-fatal knife attack was complete, and while Red Head was
trying to “crawl forward.” The circumstances presented in this
case bear greater resemblance to cases decided in sister cir-
cuits, where the courts have upheld the use of sentencing
enhancements for physical restraint of victims. See, e.g., Che-
cora, 175 F.3d at 792 (noting that Mikalajunas “did not pur-
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port to address whether the acts of chasing down and catching
the victim could constitute restraint” and affirming the appli-
cation of the restraint-of-the-victim enhancement); see also
United States v. Ossai, 485 F.3d 25, 33 (1st Cir. 2007) (hold-
ing that the act of pointing a gun at a victim while placing a
hand on his body to force him to kneel constituted physical
restraint as envisioned by the Guidelines); United States v.
Plenty, 335 F.3d 732, 736 (8th Cir. 2003) (holding that
because defendant was “exercising control over [the victim]
that prevented her freedom of movement, prevented her
escape, and facilitated the assault by allowing him to continue
to kick and strike her,” the use of the physical restraint
enhancement was proper.).
[4] Furthermore, as we noted in United States v. Parker,
“[t]he application note to § 2B3.1(b)(4)(B) defines ‘physically
restrained’ as the ‘forcible restraint of the victim such as by
being tied, bound, or locked up.’ These examples are illustra-
tive and not exclusive.” Parker, 241 F.3d at 1118 (citations
omitted); see also United States v. Foppe, 992 F.2d 1444,
1448 (9th Cir. 1993) (holding that grabbing a victim is suffi-
ciently similar to the examples in the Guidelines note to qual-
ify as a type of restraint). We AFFIRM the physical restraint
sentencing enhancement as to both Johnny Lynn and Maynard
Old Chief.
II. The District Court Properly Applied the Use of a
Dangerous Weapon Sentencing Enhancement to
Johnny Lynn
Johnny Lynn also objects to the three-point enhancement
recommended in the PSR and imposed by the district court for
use of a weapon during the course of the offense. He claims
that since he never held the knife used to assault the victim,
he should not be penalized by the sentencing enhancement.
[5] Section 2A2.2 of the Guidelines provides that “[i]f . . .
a dangerous weapon (including a firearm) was otherwise
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used, increase by 4 levels.” U.S.S.G. § 2A2.2(b)(2)(B). In
sentencing for crimes involving the concerted actions of sev-
eral parties, the Guidelines provide that a defendant’s base
offense level shall be determined in part by “all reasonably
foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity . . . .” U.S.S.G.
§ 1B1.3(a)(1)(B).
[6] The testimony presented at trial fully supported a ver-
dict that it was “reasonably foreseeable” that Maynard would
use a knife in furtherance of the joint criminal enterprise of
the assault against Red Head. Red Head testified that May-
nard Old Chief “flashed his knife” in front of Johnny Lynn
and Red Head, at Johnny Lynn’s home, after slicing Glenna
Rae Mittens in the neck. Also, the entire time that Maynard
and Johnny Lynn were pursuing Red Head, Maynard had the
knife in his hand. Nothing in this record suggests that Johnny
Lynn was not aware of the knife, or that it was not reasonably
foreseeable to him that the knife would be used in the attack
on Red Head.
[7] Ninth Circuit case law forecloses Johnny Lynn’s argu-
ment. We have affirmed sentencing enhancements in cases
where a co-defendant’s knowledge of a weapon has been far
less clear than here. See, e.g., United States v. Wills, 899 F.2d
873 (9th Cir. 1990) (affirming a wife’s sentencing enhance-
ment when her husband maintained possession of the gun,
because there was “evidence indicating that the husband’s gun
was visible, and thus it was reasonable to infer that the wife
had actual knowledge of its possession” and that “where the
co-conspirators are few in number and know each other well,
the court may infer that each participant knew the others’
methods of operation”) (internal quotations and citations
omitted); see also United States v. Delgado, 981 F.2d 1260,
1260 (9th Cir. 1992) (holding that it was “irrelevant that Del-
gado had no actual knowledge of the gun” because it was
“reasonably foreseeable that his co-defendant would possess
a gun during the execution of a bank robbery”).
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[8] The district court did not err in its application of the
weapons enhancement.
AFFIRMED.
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