(caption unavailable)

* Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that rule, the court has determined that this
opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 94-10640
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARK ERWIN KEETON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:94-CR-0085-X)
_________________________
(May 16, 1995)
Before HIGGINBOTHAM, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
I.
Eighteen-year-old bank teller Mark Keeton decided to rob his
employer. His duties at the Heritage Bank in Red Oak, Texas,
included closing the bank and arming the security system in the
evening, and he was intimately familiar with the placement and
operation of security cameras and other safeguards. Keeton

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organized an after-hours robbery of the bank, in which he posed as
a victim. In the course of the robbery, Keeton's partner Haney
held a gun to the head of Kristi Arnold, one of Keeton's fellow
tellers. Keeton got between $45,000 and $50,000 of the money
stolen from the bank.
II.
Keeton and Haney were charged with one count of bank robbery
under 18 U.S.C. §§ 2113(a) and 2. Pursuant to an agreement in
which the U.S. Attorney promised not to prosecute him for any other
offenses, Keeton pled guilty and agreed that the facts were as
summarized in the factual resume. They are as follows:
At approximately 6:30 pm on January 7, 1994,
Heritage Bank in Red Oak, Texas, a federally insured
bank, was robbed. The robbery was planned by three
individuals, the first being the defendant, Mark Erwin
Keeton, a Heritage Bank employee, the second was the
"gunman" Kevin Troyce Haney and the third was an
individual who agreed to drive the car to and from the
robbery.
The driver borrowed an automobile and drove the
gunman Haney, armed with a pellet or BB. gun which had
the appearance of a handgun, to the Heritage Bank
premises. Haney accosted a female Bank employee with the
weapon in the parking lot and forced her back into the
Bank. With assistance from Keeton, who was appearing to
be a victim, Haney obtained approximately $98,180.25 in
a white cloth bag from the robbery. He was driven away
from Heritage Bank by the driver.
Haney carted money away from the robbery in bags.
Keeton took approximately $14,000.00 from his cash drawer
shortly before the robbery. These funds were divided
between the participants, with Keeton receiving between
$45,000.00 and $50,000.00 for his role in the offense.
In planning the robbery, a kick by Haney to Keeton's
body and the use of the BB. gun were designed to
intimidate the female Heritage Bank employee and induce
her cooperation.
The court sentenced Keeton to 97 months of confinement, three

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1 As Keeton was sentenced on June 27, 1994, the November 1993
Guidelines govern his case, absent an ex post facto problem. United States v.
Gonzales, 988 F.2d 16, 18 (5th Cir.), cert. denied, 114 S. Ct. 170 (1993).
3
years of supervised release, and restitution of $48,286.25. He
claims that the court erred by increasing his offense level under
U.S.S.G. § 3B1.31 for abuse of position of trust, under
§ 2B3.1(b)(4)(B) for the physical restraint of teller Kristi Arnold
during the robbery, and under § 3B1.1(c) for being an organizer,
leader, manager, or supervisor of the criminal activity. In
addition, he argues that the order of restitution was improper
because he was unable to pay, because the amount of restitution was
improperly entered, and because the district court's delegation of
the determination of a "rate" of repayment to the probation office
was impermissible.
III.
Keeton's sentence was enhanced under a provision of the
guidelines applicable where "the defendant abused a position of
public or private trust, or used a special skill, in a manner that
significantly facilitated the commission or concealment of the
offense." U.S.S.G. § 3B1.3. Keeton argues that the plain language
of the sentencing guidelines, and a number of our cases
interpreting that language, prohibit the district court from
applying the abuse of trust enhancement to him because of his
position as a bank teller. We conclude that the enhancement was
proper, as Keeton's duties included some security responsibilities
not inherent in the job of teller.

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We review the determination that the defendant abused a
position of trust for clear error. United States v. Fisher, 7 F.3d
69, 70 (5th Cir. 1993). The commentary to the 1993 Sentencing
Guidelines states:
"Public or private trust" refers to a position of public
or private trust characterized by professional or
managerial discretion (i.e., substantial discretionary
judgment that is ordinarily given considerable
deference). Persons holding such positions ordinarily
are subject to significantly less supervision than
employees whose responsibilities are primarily non-
discretionary in nature. For this enhancement to apply,
the position of trust must have contributed in some
significant way to facilitating the commission or
concealment of the offense (e.g., by making the detection
of the offense or the defendant's responsibility for the
offense more difficult) . . . . This adjustment would
not apply in the case of an embezzlement or theft by an
ordinary bank teller or hotel clerk because such
positions are not characterized by the above-described
features.
U.S.S.G. § 3B1.3, application note 1 (emphasis added).
Another circuit has ignored this language and finds ordinary
paying and receiving tellers to be in positions of private trust
under § 3B1.3. See, e.g., United States v. Lamb, 6 F.3d 415, 420
(7th Cir. 1993). This court has not gone so far. In Fisher, we
found a head teller to be in a position of private trust for
purposes of the § 3B1.3 enhancement. We carefully distinguished
her situation from that of an ordinary teller, however, pointing
out that a head teller has substantial supervisory responsibilities
and a much greater sphere of authority than does her subordinates:
. . . Fisher's duties and responsibilities as head
cashier went significantly beyond the duties of an
ordinary bank teller. Her job was classified as a
"position of trust;" she supervised one cashier; she had
the authority to get money out of the vault, requisition
money, and check money; and she was subject only to

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monthly spot-checks.
Fisher, 7 F.3d at 71. In United States v. Campbell, No. 93-5270
(5th Cir. March 23, 1994) (unpublished), we made a similar
distinction, taking a defendant out of § 3B1.3's teller exception
and holding that "Campbell's duties and responsibilities as cashier
of the Imprest Fund went significantly beyond the duties of an
ordinary bank teller."
In United States v. Brown, 941 F.2d 1300, 1304 (5th Cir.),
cert. denied, 502 U.S. 1008 (1991), we explained that two findings
are necessary for enhancement under § 3B1.3: (1) that the
defendant occupied a position of trust and (2) that he abused his
position in a manner that significantly facilitated the commission
or concealment of the offense. Although Brown involved heroin
smuggling by a prison official, we discussed the teller exception
in the context of the § 3B1.3 enhancement. The Ninth Circuit's
cases, we explained, stand for the proposition that a bank teller
cannot abuse a position of trust because she, in contrast to
higher-ranking bank officials, does not occupy one. Brown, 941
F.2d at 1305. We acknowledged that several courts have attempted
to explain the bank teller exception by suggesting that a teller's
position of trust may already be included in the offense of
embezzlement and therefore is inappropriate as a basis for an
enhancement. Id. at 1305 n.6 (citing United States v. Drabeck,
905 F.2d 1304, 1306-07 (9th Cir. 1990)). Finally, we examined the
second prong of § 3B1.3, holding that the defendant's opportunity
to commit the crime or conceal it is to be measured against that of

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the general public rather than against that of other persons
occupying the same position. Id.
In an unrelated case coincidentally involving another Parchman
prison employee named Brown, United States v. Brown, 7 F.3d 1155
(5th Cir. 1993), we again addressed the application of § 3B1.3. In
distinguishing Brown's position as a prison food service manager
from that of a bank teller, we wrote:
Unlike teller embezzlement, a position of trust is
not already implicit in charges of mail fraud and money
order alteration against a prison worker . . . .
Moreover, Brown's position is in other respects not
wholly analogous to an embezzling bank teller . . . . It
has been stated that the rationale underlying the 'bank
teller exception' is that although the teller's position
provides an opportunity to embezzle money, reasonably
diligent supervisors could easily detect the wrongdoing
after it has occurred . . . . Where the wrongdoing is
smuggling money into a prison, however, there is no
analogous supervision capable of detecting the completed
crime.
Id. at 1161 (citations and footnote omitted). We noted that we had
observed in some decisions a reluctance to analogize broadly from
the bank teller exception and a tendency, instead, either to limit
its scope or to suggest that the teller's position of trust is
already implicit in the charge of embezzlement. Id. at 1161 n.4.
We find the distinction between Keeton's security
responsibilities at the bank (arming the alarm, closing, etc.) and
his teller responsibilities to be dispositive in this case, so we
affirm the § 3B1.3 enhancement on the basis of the security
responsibilities. This approach is consistent with applications of
§ 3B1.3 to security guards. See United States v. Parker, 903 F.2d
91, 104 (2nd Cir.), cert. denied, 498 U.S. 872 (1990).

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IV.
Next, Keeton challenges the enhancement of his sentence under
U.S.S.G. § 2B3.1(b)(4)(B) for the physical restraint of teller
Kristi Arnold by Haney during the robbery. The factual resume
signed by Keeton in connection with his guilty plea specifies that
Haney accosted Arnold "with the weapon in the parking lot and
forced her back into the Bank." The weapon was "a pellet or BB.
gun which had the appearance of a handgun." The Sentencing
Guidelines define physical restraint as "the forcible restraint of
the victim such as by being tied, bound, or locked up."
U.S.S.G. § 1B1.1, application note 1(i). Courts interpreting this
definition have held that the use of the modifier "such as"
indicates that "being tied, bound, or locked up" is listed by way
of example rather than limitation. See, e.g., United States v.
Stokely, 881 F.2d 114, 116 (4th Cir. 1989). Keeton argues that the
definition excludes restraint accomplished by grabbing someone and
threatening him with a gun.
Several other circuits have upheld application of the physical
restraint enhancement in situations like the one at bar. One
circuit has upheld the application of the physical restraint
enhancement where a bank robber ordered tellers into an unlocked
bathroom and threatened to shoot them if they emerged, United
States v. Doubet, 969 F.2d 341, 346 (7th Cir. 1992), and where the
bank robber fired mace at the victims, United States v. Robinson,
20 F.3d 270, 279 (7th Cir. 1994) ("Because a person experiencing
burning in her eyes and throat may have difficulty chasing after a

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bank robber and will be restricted in movement for some period of
time, 'physical restraint' is satisfied here since defendant
created a 'chemical wall' . . . ."). Another court, in a case
factually similar to the one at bar, held that "a victim who is
held around the neck at knifepoint is denied freedom of movement so
as to be physically restrained." United States v. Roberts,
898 F.2d 1465, 1470 (10th Cir. 1990).
Still another court went even further; in United States v.
Elkins, 16 F.3d 952, 953 (8th Cir. 1994), the defendant argued that
the two point enhancement for physical restraint should apply,
rather than the four point enhancement for abduction, where he held
a bank patron at knife point and forced him out of the bank and
into the parking lot, releasing him only after he had provided the
robber with the keys to his vehicle. The court held that the
abduction enhancement applied (and that the physical restraint
provision, as a lesser included enhancement, therefore did not).
Although the Elkins court did not apply the physical restraint
enhancement, the logic of the opinion supports upholding it where,
as here, there is no abduction enhancement issue. But see United
States v. Johnson, 1995 WL 32001, *3 (7th Cir. 1995) ("To be
eligible for the additional two-level enhancement for physical
restraint the court had to find that Johnson (or his 'assistants')
did something beyond pointing a gun and inflicting injury . . . .
[such as] surround[ing] Cunningham in such a way as to form a human
wall.") (emphasis added). We hold that the application of the
physical restraint enhancement to Keeton was proper.

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V.
We review a trial court's finding that defendant was "an
organizer, leader, manager, or supervisor" of the criminal activity
for clear error. United States v. Barreto, 871 F.2d 511, 512 (5th
Cir. 1989). Here, the enhancement was amply supported by the
evidence. Keeton referred to himself as a leader and took in half
or almost half of the proceeds of the robbery (leaving the other
half to be divided among the two other perpetrators). In addition,
Keeton planned the robbery using his special knowledge of bank
security systems and practices.
VI.
We review an order of restitution for abuse of discretion.
United States v. Paden, 908 F.2d 1229, 1237 (5th Cir. 1990), cert.
denied, 498 U.S. 1039 (1991). The burden of demonstrating that he
lacks the resources to comply with a restitution order is on the
defendant. 18 U.S.C. § 3664(d). Current indigency is not a per se
bar to restitution. United States v. Matovsky, 935 F.2d 719, 723
(5th Cir. 1991).
Keeton has failed to meet his burden, making no showing that
he will be unemployable after his prison term. He has no
dependents, and is supported by his parents. We find no abuse of
discretion.
In the alternative, Keeton argues that the restitution as
computed by the district court exceeds the actual loss to the bank
and therefore must be reduced by $185. This argument is meritless.

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In making it, Keeton relies upon a portion of the record listing
the bank losses as $98,100. Keeton pled guilty, however, to
robbing the bank of approximately $98,180.25.
VII.
Finally, Keeton argues that the restitution order
impermissibly delegates a judicial function to the probation office
by ordering it to determine the "rate" of repayment. We agree. In
United States v. Albro, 32 F.3d 173, 174 (5th Cir. 1994), we held
that it was plain error for the district court to delegate the
establishment of a restitution payment schedule to the federal
probation office rather than itself designating the timing and
amount of payments. Albro requires us to vacate that part of the
district court's restitution order delegating the establishment of
a rate of payment to the probation office and remand for
resentencing.
For the foregoing reasons, the judgment of sentence is
AFFIRMED in part and VACATED and REMANDED in part.

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