     Case: 19-10944      Document: 00515468948         Page: 1    Date Filed: 06/26/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals

                                    No. 19-10944
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                        June 26, 2020
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                 Plaintiff-Appellee

v.

MARCELLO SHOFNER,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:19-CR-39-2


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Marcello Shofner pleaded guilty to one count of bank robbery in violation
of 18 U.S.C. § 2113(a) and 18 U.S.C. § 2, and the district court sentenced him
to 180 months of imprisonment and imposed a three-year term of supervised
release. Shofner challenges the application of the U.S.S.G. § 2B3.1(b)(4)(A)
offense level enhancement for abduction and the U.S.S.G. § 3C1.2 offense level
enhancement for reckless endangerment during flight.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 19-10944

       Because Shofner did not raise his arguments before the district court,
they are reviewed for plain error on appeal. See United States v. Benitez, 809
F.3d 243, 249 (5th Cir. 2015). To show plain error, Shofner must show a
forfeited error that is clear or obvious and that affects his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a
showing, this court has the discretion to correct the error but only if it
“seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks, brackets, and citation omitted).
An error is generally not clear or obvious if it is subject to reasonable dispute.
Id.
       Shofner argues that the district court erred in applying the
§ 2B3.1(b)(4)(A) abduction enhancement because his codefendant, Cedric
Burns, not Shofner, moved the credit union employees around the building to
obtain money. He asserts that the presentence report contained no indication
that it was reasonably foreseeable that Burns would abduct anyone during the
robbery.
       For   robbery   offenses,   the   Guidelines   provide   for   a   four-level
enhancement “[i]f any person was abducted to facilitate commission of the
offense or to facilitate escape.” § 2B3.1(b)(4)(A). Although Shofner did not
escort the employees around the back to obtain the money, it is unavailing for
Shofner to argue that this movement of employees to a different location to
facilitate commission of the robbery would not have been reasonably
foreseeable to him. See U.S.S.G. § 1B1.3(a)(1)(B). The district court did not
plainly err in applying the § 2B3.1(b)(4)(A) enhancement. See Puckett, 556
U.S. at 135; United States v. Smith, 822 F.3d 755, 764 (5th Cir. 2016).
       Shofner also argues that the district court erred in applying the § 3C1.2
reckless endangerment enhancement because the PSR failed to show how a



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                                 No. 19-10944

bank robbery constitutes aiding or abetting the subsequent high-speed police
pursuit of the vehicle driven by Antranette Canady. He urges that there are
no facts establishing his willful participation in or endorsement of the vehicle
pursuit.
      Pursuant to § 3C1.2, a two-level enhancement should be applied “[i]f the
defendant recklessly created a substantial risk of death or serious bodily injury
to another person in the course of fleeing from a law enforcement officer.”
§ 3C1.2. Pursuant to § 3C1.2, “the defendant is accountable for the defendant's
own conduct and for conduct that the defendant aided or abetted, counseled,
commanded, induced, procured, or willfully caused.” § 3C1.2, comment (n.5);
see also United States v. Iracheta-Garces, No. 01-40198, 2001 WL 1485742, at
*2 (5th Cir. Nov. 7, 2001) (unpublished).
      Here, the presentence report indicates that Shofner and Burns had
planned for Canady to drive them away from the credit union immediately
after the robbery and then switch to the vehicle driven by Precious Alexander.
A plan arranging for a getaway driver from a bank robbery involves procuring
or willfully causing dangerous conduct in the subsequent high-speed police
pursuit.   See § 3C1.2, comment. (n.5).       Therefore, because this factual
determination of whether Shofner aided or abetted in the flight from law
enforcement officials is at least subject to reasonable dispute, it cannot
constitute clear or obvious error. See Puckett, 556 U.S. at 135.
      AFFIRMED.




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