           Case: 14-12069    Date Filed: 12/18/2014   Page: 1 of 6


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12069
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:13-cr-00252-WS-N-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

CHRISTOPHER BRYANT GIBSON,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                            (December 18, 2014)

Before MARCUS, JULIE CARNES and FAY, Circuit Judges.

PER CURIAM:
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      Christopher Bryant Gibson appeals his 96-month sentence, imposed after

pleading guilty to one count of violating 18 U.S.C. § 2113(a) by committing bank

robbery. At sentencing, the district court applied a six-level enhancement under

U.S.S.G. § 3A1.2(c)(1) for assaulting a law enforcement officer during the course

of the offense or the immediate flight therefrom. On appeal, Gibson argues that:

(1) the district court erred in applying the six-level increase because his altercation

with the police officer occurred the day after the robbery; and (2) this error was not

harmless because it resulted in a substantively unreasonable sentence.           After

thorough review, we affirm.

      We review the district court’s interpretation of the Sentencing Guidelines de

novo. United States v. Wright, 607 F.3d 708, 711 (11th Cir. 2010). We will affirm

a sentence based on harmless error if we know that the district court would have

imposed the same sentence regardless of its ruling on a guidelines issue, and the

sentence is reasonable even if that issue was decided in the defendant’s favor.

United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006). The defendant has

the burden of establishing the unreasonableness of the sentence had the district

court decided the guidelines issue in the defendant’s favor. See id. at 1350. When

reviewing a sentence for reasonableness, we ask “whether the trial court abused its

discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting

Rita v. United States, 551 U.S. 338, 351 (2007)).


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       The Sentencing Guidelines provide that a defendant is subject to a six-level

increase if he assaulted a law enforcement officer “during the course of the offense

or immediate flight therefrom” in a way that created a substantial risk of serious

bodily injury. U.S.S.G. § 3A1.2(c)(1). In Dougherty v. United States, we held that

a district court erred in applying a § 3A1.2(c)(1) enhancement to a law

enforcement assault committed eight days after the defendants’ bank robbery, but

while the defendants were still fleeing from police and trying to evade capture. 754

F.3d 1353, 1359 (11th Cir. 2014). We held that applying the enhancement to an

assault occurring eight days after and thousands of miles away from the offense

was inconsistent with the “during immediate flight” requirement as the ordinary

meaning of “immediate” includes definitions such as “occurring without delay,”

“instant,” and “accomplished without loss of time.” Id.

       We consider the “‘substantive reasonableness of the sentence imposed under

an abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’”

Pugh, 515 F.3d at 1190 (quoting Gall, 552 U .S. at 51). In imposing a sentence, a

district court considers the factors listed in 18 U.S.C. § 3553(a). 1 “A district court


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        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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abuses its discretion and imposes a substantively unreasonable sentence when it

fails to afford consideration to relevant [§ 3353(a)] factors that were due

significant weight, gives significant weight to an improper or irrelevant factor, or

commits a clear error of judgment in considering the proper factors.” United

States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation omitted).

But “we will not second guess the weight (or lack thereof) that the [court] accorded

to a given [§ 3553(a)] factor ... as long as the sentence ultimately imposed is

reasonable in light of all the circumstances presented.” United States v. Snipes,

611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and emphasis omitted).

Juvenile convictions not similar to the conviction and too remote to use in

calculating the defendant’s criminal history category can be properly considered by

the district court in its consideration of the 3553(a) factors. United States v. Jones,

289 F.3d 1260, 1267 (11th Cir. 2002).

      Here, the district court erred in applying the six-level enhancement under

U.S.S.G. § 3A1.2(c)(1) because the assault on the police officer did not occur

during “immediate flight.” Gibson’s altercation with the police officer did not

occur instantly, “without delay,” or “without loss of time.” See Dougherty, 754

F.3d at 1359. As the record reveals, Gibson was arrested at a hotel the day after

the robbery, interviewed at a FBI office, and then transported to a local police

station, at which point he faked an illness and, after being taken to the hospital,


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attacked the officer guarding him. He tried to wrestle away the officer’s gun while

yelling death threats and breaking the officer’s thumb in the process.         Thus,

Gibson’s assault was not “immediate,” as enough time had passed that Gibson was

able to spend the night at a hotel, be interviewed by the FBI, and be transferred to

the local police department.

      Had the district court ruled in Gibson’s favor on the guidelines issue, the

presentence investigation report would have yielded an advisory guideline range of

46 to 57 months’ imprisonment. See U.S.S.G. Ch. 5, pt. A. Nonetheless, its error

in ruling against Gibson on the guidelines issue was harmless because the district

court indicated that it would have imposed the same sentence without the six-level

increase.   Furthermore, even without the increase, the ultimate sentence was

substantively reasonable. As the record shows, the 39-month upward variance,

though substantial, accomplished the needs for the sentence to reflect the

seriousness of the offense, reflect the nature and circumstances of the offense, take

into account the defendant’s history and characteristics, and protect the public.

Moreover, the district court properly considered Gibson’s dangerous conduct and

consistent criminal history even though these facts were not reflected in the

guidelines range. Indeed, Gibson not only robbed a bank during which he made a

death threat but engaged in an altercation with a police officer following his arrest

that placed himself, the officer, and others in danger. He actively attempted to get


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the officer’s gun and threatened to kill him during the assault.         In addition,

Gibson’s criminal history category of I did not adequately reflect the 17

convictions he received as a juvenile and an adult. His criminal history and

escalation to the instant crime of violence invoke the need to consider the public

safety aspect of his sentence.

      In short, because Gibson’s resulting 96-month sentence was “within the

range of reasonable sentences dictated by the facts of the case,” the district court

committed harmless error when it applied a six-level enhancement under U.S.S.G.

§ 3A1.2(c)(1).    Accordingly, the court did not clearly abuse its discretion in

sentencing Gibson by an upward variance of 39 months from the top end of the

appropriate guidelines range.

      AFFIRMED.




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