Dеfendant-appellant Paul R. Whooten pled guilty to two counts of unarmed bank robbery and three counts of interference with commerce by bank robbery. He was sentencеd to 140 months’ imprisonment, based on an offense level that the district court adjusted upward after finding that an abduction had occurred during the commission of the crime. Defendant aрpeals his sentence, claiming that it violates
Apprendi v. New Jersey,
I.
On August 1, 1999, Paul Whooten and James Travis robbed a Bread & Circus store in Wayland, Massachusetts. After forcing the store clerks to turn over more than $10,000 in cash, Whooten placed the money into a paper bag. Then, putting a hand on the gun located in his waistband, 1 he said to one of the store clerks, Marie Mee, ‘We’re gonna go outside now and you’re coming with me.” Whooten threatened to kill her if she did not cooperate.
Whooten and Travis exited the store, with Whooten walking behind Mee. Whoo-ten directed Travis to run and start the car. Meanwhile, Whooten continued to walk behind Mee until they were approximately 65 feet east of the store entrance. He then instructed Mee to turn around and walk back to the store. Whooten ran to the car, which was parked about 153 feet east of the store entrance, and drove off with Travis.
On August 2, 2000, apрellant pled guilty to a five-count information, charging two counts of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a), and three counts of interference with commerce by robbery, in violаtion of 18 U.S.C. § 1951(a). 2 Under the rules for sentencing on multiple counts, as set forth in U.S.S.G. § 3D1.4, the district court calculated the total offense level by determining the count carrying the highest adjusted offense level, then adding points for the other counts.
In this case, the Presentence Report (“PSR”) determined that Count Three, which charged “interference with commerce by robbery” at the Wayland Bread & Circus store, had the highest adjusted offense level of 28. The robbery carried a base offense level of 20, which was increased by three levels for the display of a dangerous weapon during the commission of the crime and by one level because Whooten stole between $10,000 and $50,000. See U.S.S.G. §§ 2B3.1(b)(2)(E), 2B3.1(b)(7). In addition, the PSR increased the offense level by four steps, pursuant to § 2B3.1 (b)(4)(A), because Whooten abducted an individual to “facilitate commission of the offense or to facilitate escape.” To this adjusted offense level of 28, the PSR added four levels for the other counts, pursuant to § 3D1.4, and then subtracted three levels for early acceptance of responsibility, resulting in a *60 total offense level of 29. With Whooten’s criminal history category of V, this offense level produced a sentence range of 140 to 175 months’ imprisonment.
Defendant objected to the four-level abduction enhancement, claiming that it violated Apprendi v. New Jersey and that it was not supported by the facts. The district court overruled Whooten’s objections and sentenced him to 140 months’ imprisonment. On appeal, defendant renews the objections that he raised below.
II.
Whooten claims that Apprendi v. New Jersey bars the four-level abduction enhancement because the facts supporting thе enhancement were neither alleged in the information nor proved beyond a reasonable doubt. Apprendi, however, is inapplicable to this case.
In
Apprendi,
the Supreme Court held that “[o]ther than the fact of a prior cоnviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
In this case, the statutory maximum for each count to which defendant pled guilty was twenty years’ imprisonment. See 18 U.S.C. §§ 1951(a) (authorizing a term of nоt more than twenty years), 2113(a) (same). Therefore, defendant’s sentence of 140 months does not exceed the statutory maximum, and Apprendi is inapplicable. The district court acted within its disсretion in determining that an abduction occurred for purposes of enhancing defendant’s sentence.
III.
Defendant argues that even if the abduction enhancement is pеrmissible under
Apprendi,
the facts found by the district court in this ease are insufficient to trigger application of the sentencing guidelines’ abduction enhancement. Although we review the district court’s factual findings for clear error, we review de novo a district court’s interpretation of a sentencing guideline.
See United States v. La-Fortune,
The sentencing guidelines provide for a four-level increаse in the offense level “[i]f any person was abducted to facilitate commission of the offense or to facilitate escape.” U.S.S.G. § 2B3.1(b)(4)(A). The background note to § 2B3.1 indicаtes that “[t]he guideline provides an enhancement for robberies where a victim was forced to accompany the defendant to another location....” U.S.S.G. § 2B3.1, comment, (backg’d.). Section 2B3.1 also references definitions of general application in § 1B1.1. See U.S.S.G. § 2B3.1, comment, (n.l). Section 1B1.1 states: “‘Abducted’ means that a victim was forced to accоmpany an offender to a different location. For example, a bank robber’s forcing a bank teller from the bank into a getaway car would constitute an abduction.” U.S.S.G. § 1B1.1, сomment, (n.l(a)).
Defendant argues that, as a matter of law, forcing Mee to walk 65 feet from the store’s entrance does not amount to forcing the victim “to a different locаtion,” and is dissimilar from the commentary’s example of forcing a bank teller into a getaway car. Because Whooten released Mee when he was still 90 feet from the *61 getaway car, he claims that her presence did not facilitate the commission of the offense or the defendant’s escape. As a result, Whooten contends that his acts do not qualify as an abduction under the guidelines. We disagree.
The facts, which defendant does not dispute, indicate that Whooten forced Mee, at gunpoint and while threаtening to kill her, outside of the store and 65 feet into the parking lot. We have no difficulty finding that this was a forced movement “to a different location.”
See United States v. Hickman,
Moreover, such abduction, even if terminated before defendant reached the gеtaway car, nonetheless facilitated his escape within the meaning of § 2B3.1(b)(4)(A). By forcing Mee to walk in front of him as he exited the store, Whooten shielded himself from detection, аs well as provided himself with a potential hostage until Travis had sufficient time to start the car.
See Nale,
This Court has observed that the abduction enhancement is intended, at least in part, to protect victims against additional harm that may result from the victim’s isolation, and thus applies whether the abduction is carried out by threat or by physical force.
See United States v. Cunningham,
IV.
Because we find that the facts support application of the abduction enhancement and that defendant’s sentence does not violate Apprendi, we affirm.