     Case: 19-10535   Document: 00515486797        Page: 1   Date Filed: 07/13/2020




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

                                                                           FILED
                                    No. 19-10535                       July 13, 2020
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk


             Plaintiff - Appellee

v.

AARON SEBASTIAN REDMOND,

             Defendant - Appellant



                Appeal from the United States District Court
                     for the Northern District of Texas


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      Aaron Redmond robbed a bank by threatening a teller with his pistol,
telling another to get on her knees, and demanding money from the drawers
operated by both tellers. He then instructed two tellers to walk to an adjacent
room, close the door, and count to 100 before coming out. Redmond pleaded
guilty to bank robbery, and at sentencing, the district court imposed a four-
level enhancement to Redmond’s base offense level for an “abduction” during
the robbery. See U.S.S.G. § 2B3.1(b)(4)(A). Redmond argues that (1) the
district court erred in applying the enhancement because he did not “abduct”
the tellers when he robbed the bank because he did not “accompany” them to
the adjacent room, (2) the error was not harmless, and (3) his 180-month
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sentence is substantively unreasonable.       For the following reasons, we
AFFIRM.
                                       I.
      Aaron Redmond entered Comercia Bank on February 14, 2017, told the
teller “no alarms, no phones, no nothing,” and displayed the butt of a pistol in
the pocket of his sweatshirt. He told another teller to get on her knees and
demanded and received money from the drawers operated by both tellers. He
then told the tellers to walk to an adjacent room, close the door, and count to
100 before coming out.
      Redmond was indicted for one count of bank robbery pursuant to 18
U.S.C. § 2113(a), and he pled guilty without a plea agreement.              The
presentence report (PSR) noted that “[r]eliable FBI investigative material
revealed the defendant engaged in three additional bank robberies” that were
not grouped or considered as relevant conduct and described Redmond’s
pending charge of aggravated assault against his wife in which he beat and
stabbed her.
      Relevant to this appeal, the PSR included a four-level enhancement to
Redmond’s base offense level for an “abduction” during the robbery, under
§ 2B3.1(b)(4)(A) of the Guidelines. Redmond objected to the enhancement,
arguing that he did not abduct the tellers under the Guidelines’ definition of
“abduction” because he did not “accompany” them to the adjacent room. The
government urged a “flexible” interpretation of the Guidelines definition of
“accompany,” and argued that the close proximity of Redmond to the tellers
and the adjacent room satisfied the accompaniment requirement.
      The district court overruled Redmond’s objection and denied defense
counsel’s motion for a downward variance, explaining that it believed Redmond
should receive a sentence “significantly above the top of the advisory
[G]uideline range,” because Redmond “is a very violent person and his—the
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community would be ill-served if he was back in the community in the near
future or anytime in the next 10 to 15 years.” The district court then varied
upward from Redmond’s Guideline range of 78 to 97 months and imposed a
180-month sentence of imprisonment. The court then stated:
      I might add, as far as the length of the sentence is concerned, the
      sentence would be the same as I’ve imposed, without regard to
      what ruling I might have made or should have made on the subject
      of abduction, the increase in level for the objection. I’m basing my
      decision as to the ruling that should be made on the factors the
      Court should consider in sentencing under 18 United States Code
      Section 3553(a) without regard to what the advisory [G]uideline
      range might be in this case.
                                      II.
      Redmond argues that the district court erred in applying the abduction
enhancement because he did not “accompany” the tellers to the adjacent room.
We agree.
      The relevant Guidelines provision requires a four-level increase “if any
person was abducted to facilitate commission of the offense or to facilitate
escape.” U.S.S.G. § 2B3.1(b)(4)(A). “Abducted,” according to the Guidelines,
“means that a victim was forced to accompany 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.” Id. § 1B1.1 cmt. n.1(A).
      Black’s Law Dictionary defines “accompany” as “[t]o go along with
(another); to attend.” Accompany, BLACK’S LAW DICTIONARY (11th ed. 2019);
see also Accompany Definition, MERRIAM-WEBSTER.COM, https://www.merriam-
webster.com/dictionary/accompany (defining “accompany” as “to go with as an
associate   or    companion”);   Accompany      Definition,     OXFORD     ENGLISH
DICTIONARY,       https://www.oed.com/view/Entry/1145?rskey=fY4jQe&result=
1#eid (defining “accompany” as “[t]o go with (a person) as a companion, escort,
or attendant”).    The Supreme Court has analyzed 18 U.S.C. § 2113(e) to

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determine whether an enhanced penalty “for anyone who ‘forces any person to
accompany him’ in the course of committing or fleeing from a bank robbery”
applied where a bank robber forced someone to move only a few feet within a
home. Whitfield v. United States, 574 U.S. 265, 266 (2015). Though the Court
was focused on the distance required for the statute to apply, it shed light on
the meaning of “accompany” for our purposes, stating: “In 1934, just as today,
to ‘accompany’ someone meant to ‘go with’ him.” Id. at 267 (citing Oxford
English Dictionary). The Court ultimately held “that a bank robber ‘forces [a]
person to accompany him,’ for purposes of § 2113(e), when he forces that person
to go somewhere with him, even if the movement occurs entirely within a single
building or over a short distance.” Id. at 269-70 (emphasis added); see also id.
at 269 (“Even if . . . bank robbers always ‘exert some control’ over others, it
does not follow that they always force others to accompany them somewhere—
that is, to go somewhere with them.” (emphasis in original)).
       Considering       the    term’s     plain    meaning       and    Supreme       Court’s
interpretation in Whitfield, then, it is clear that to have “accompanied” the
tellers, at the very least, Redmond must have been “with” them when they
moved to the adjacent room. Though the Government emphasizes the short
distance between Redmond and the tellers and the adjacent room, Redmond
did not move “with” the tellers to the adjacent room, and he therefore did not
“accompany” them there. 1


       1 The Government focuses on our statement in United States v. Smith that “the forced
movement of a bank employee from one room of a bank to another—so long as it is in aid of
commission of the offense or to facilitate escape—is sufficient to support the [§ 2B3.1(b)(4)(A)]
enhancement given the flexible approach we have adopted in this circuit.” 822 F.3d 755, 764
(5th Cir. 2016) (alteration omitted). But in that case, along with the other cases relied on by
the Government, the defendant indeed moved with the victim but argued that the “different
location” requirement was not satisfied. See id. at 763-64 (defendant argued that the
enhancement was inapplicable because he forcibly moved employees within the bank and not
to “another location”); United States v. Buck, 847 F.3d 267, 276-77 (5th Cir. 2017) (defendant
argued that moving victim employees from the front to the back of the T-Mobile stores during
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                                       No. 19-10535
       Based on the foregoing, we conclude that the district court erred in
applying the abduction enhancement because a victim was not forced to
accompany Redmond to a different location. See U.S.S.G. §§ 1B1.1 cmt. n.1(A),
2B3.1(b)(4)(A).
                                             III.
       While we agree with Redmond that the district court erred in applying
the enhancement, no remand is required if the error was harmless. See United
States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009). A procedural
error is harmless if the error did not affect the district court’s choice of
sentence.     United States v. Halverson, 897 F.3d 645, 652 (5th Cir. 2018).
Where, as here, the district court did not consider the correct Guidelines range,
the Government must “convincingly demonstrate[] both (1) that the district
court would have imposed the same sentence had it not made the error, and
(2) that it would have done so for the same reasons it gave at the prior
sentencing” to establish harmlessness. United States v. Ibarra-Luna, 628 F.3d
712, 714 (5th Cir. 2010); see also United States v. Hernandez-Montes, 831 F.3d
284, 296 (5th Cir. 2016) (“The government must point to evidence in the record
that convincingly demonstrates the district court would impose the same
sentence for the same reasons.”).            We consider whether a district court’s
sentence was influenced by its Guidelines calculations or based on independent
factors. See Ibarra-Luna, 628 F.3d at 719. “This is a heavy burden, and one
that requires the proponent to point to evidence in the record that will convince



the robberies did not constitute abduction because they were not moved from one location to
another); United States v. Hawkins, 87 F.3d 722, 726-28 (5th Cir. 1996) (defendant argued
that victims were not abducted because they were not forced from one location to another,
court disagreed and concluded that forcing victims to move 40 to 50 feet to a different area of
the parking lot at gunpoint was sufficient); United States v. Washington, 500 F. App’x 279,
285 (5th Cir. 2012) (defendants argued that enhancement did not apply because victims were
not removed from the building). In those cases, then, we had no occasion to consider the issue
before us today—whether the defendant accompanied the victim.
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                                  No. 19-10535
the appellate court that the district court had a particular sentence in mind
and would have imposed it, notwithstanding the error.”          United States v.
Richardson, 676 F.3d 491, 511 (5th Cir. 2012) (cleaned up). We conclude that
the Government has made the required showing.
      At the start of the sentencing hearing, the district court stated that it
“tentatively concluded that the defendant should receive a sentence
significantly above the top of the advisory guideline range” considering the
§ 3553(a) factors. Importantly, the court made this statement before hearing
argument or reaching any conclusions regarding the appropriate Guidelines
calculation.   After hearing arguments from counsel on whether the
enhancement applied and a statement from Redmond, the court calculated the
Guideline range it thought was applicable and stated it was “still of the belief
and of the opinion that there should be a sentence significantly above the top
of the advisory guideline range.” These statements, taken together, indicate
“that the district court had a particular sentence in mind and would have
imposed it, notwithstanding the [Guidelines calculation] error.” Richardson,
676 F.3d at 511 (quoting Ibarra-Luna, 628 F.3d at 718).
      Moreover, the district court explicitly stated that “the sentence would be
the same as I’ve imposed, without regard to what ruling I might have made or
should have made on the subject of [the] abduction [enhancement]” and that it
was selecting the sentence “without regard to what the advisory [G]uideline
range might be in this case.” While “it is not enough for the district court to
say the same sentence would have been imposed but for the error,” United
States v. Tanksley, 848 F.3d 347, 353 (5th Cir. 2017), here, the evidence
supports the district court’s assertion, as it is clear that the court’s 180-month
sentence was uninfluenced the improperly calculated range of 78 to 97 months.
Cf. Ibarra-Luna, 628 F.3d at 719 (holding that Guidelines calculation error was
not harmless where “compared to the 12-to-18-month range the court did
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                                 No. 19-10535
consider, the 36-month sentence it imposed is exactly double the Guidelines
maximum and exactly triple the Guidelines minimum.”).
      Unlike in the cases cited by Redmond, it is clear from the sentencing
transcript that the court’s sentence was based on “independent factors,”
Ibarra-Luna, 628 F.3d at 719, particularly Redmond’s previous conviction and
his pending Texas charge of aggravated assault of a family member with a
weapon, where he “stabbed [his wife] in the neck and punched her repeatedly
in the arms and legs.” After recounting the stabbing incident in detail, the
court explained that “[t]he defendant is a danger to the community and will
continue to be a danger to the community.” The court concluded: “When I
consider all of the factors the Court should consider under 18 [U.S.C. §] 3553(a)
in sentencing, the Court’s concluded that a sentence—the defendant should
receive a sentence of 180 months imprisonment. That’s probably not enough,
but that’s what I’ve concluded is appropriate.” Based on the transcript, it is
clear that the district court would have imposed the same above-Guidelines,
180-month sentence even absent the Guidelines calculation error and would
have done so for the same reasons.
      In asserting that the district court’s error is not harmless, Redmond cites
to several cases where this court has remanded for resentencing based on a
Guidelines error, and, though the district court stated at the original
sentencing that the sentence would be the same regardless of any error, the
district court imposed a different sentence on remand. For example, in United
States v. Martinez-Romero, 817 F.3d 917, 925 (5th Cir. 2016), “[t]he court
stated three times that even if the 16-level enhancement for the attempted
kidnapping was incorrect, it would nonetheless impose the same 46-month
sentence.” But the court sentenced the defendant to 46 months, at the lowest
end of the improperly calculated Guideline range of 46-57 months, “indicat[ing]
that the improper [G]uideline calculation influenced the sentence.” Id. at 925-
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26. On remand, the court imposed a 26-month sentence. Amended Judgment,
United States v. Martinez-Romero, No. 5:14-CR-563-001 (S.D. Tex. July 14,
2016).
      In Martinez-Romero and all the cases cited by Redmond, this court
vacated and remanded based on a Guidelines error because it was clear that
the improperly calculated Guidelines range influenced the court’s sentence.
See United States v. Rico-Mejia, 859 F.3d 318, 320 (5th Cir. 2017) (court
sentenced defendant to 41 months, at low end of improperly calculated
Guidelines range of 41 to 51 months), overruled by United States v. Reyes-
Contreras, 910 F.3d 169 (5th Cir. 2018); Tanksley, 848 F.3d at 353 (court
sentenced defendant at the bottom of the erroneously calculated Guideline
range); United States v. Bazemore, 608 F. App’x 207, 213 (5th Cir. 2015) (court
sentenced defendant to 292 months, at low end of improperly calculated
Guidelines range of 292 to 365 months); United States v. Cardenas, 598 F.
App’x 264, 266 (5th Cir. 2015) (court sentenced defendant to 108 months, at
low end of improperly calculated Guidelines range of 108 to 135 months);
United States v. Leal-Rax, 594 F. App’x 844, 851 (5th Cir. 2014) (court
sentenced defendant to 37 months, at low end of improperly calculated
Guidelines range of 37 to 46 months); United States v. Vasquez-Tovar, 420 F.
App’x 383, 383-84 (5th Cir. 2011) (court sentenced defendant to 70 months, at
low end of improperly calculated Guidelines range of 70 to 87 months).
      Therefore, while these cases demonstrate that district courts often
impose lighter sentences when confronted with a sentencing error no matter
how emphatically they indicate otherwise, they do not help Redmond rebut the
Government’s “evidence in the record that convincingly demonstrates the
district court would [have] impose[d] the same sentence for the same reasons”
absent the Guidelines error. Hernandez-Montes, 831 F.3d at 296 (emphasis


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                                  No. 19-10535
omitted). In sum, there is simply no evidence that the district court was
influenced by the improperly calculated Guidelines range.
      Because the government has “convincingly demonstrate[d] both (1) that
the district court would have imposed the same sentence had it not made the
error, and (2) that it would have done so for the same reasons it gave at the
prior sentencing,” Ibarra-Luna, 628 F.3d at 714, we conclude that the district
court’s Guidelines calculation error was harmless.
                                        IV.
      Finally, Redmond challenges the substantive reasonableness of his 180-
month sentence. Because Redmond moved for a downward variance, and the
court ultimately imposed an above-Guidelines sentence, Redmond “advocate[d]
for a sentence shorter than the one ultimately imposed,” and therefore
preserved his challenge to the substantive reasonableness of the sentence. See
Holguin-Hernandez v. United States, 140 S. Ct. 762, 766-67 (2020).
Accordingly, we review for abuse of discretion. See United States v. Johnson,
619 F.3d 469, 471-72 (5th Cir. 2010).
      When     reviewing     a   non-Guidelines      sentence    for   substantive
reasonableness, we consider “the totality of the circumstances, including the
extent of any variance from the Guidelines range to determine whether, as a
matter of substance, the sentencing factors in section 3553(a) support the
sentence.” United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012)
(citations and internal quotation marks omitted). We “must give due deference
to the district court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the variance.” Gall v. United States, 552 U.S. 38, 51 (2007). The
relevant statutory sentencing factors include:
      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant, (2) the need for the sentence to
      reflect the seriousness of the offense and provide just punishment,
      protect the public from further crimes of the defendant, and
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                                  No. 19-10535
        provide the defendant with needed correctional treatment, (3) the
        kinds of sentences available, (4) the Sentencing Guidelines and
        any relevant policy statements, and (5) the need to avoid
        unwarranted sentence disparities among defendants with similar
        records who have been found guilty of similar conduct.
United States v. Diehl, 775 F.3d 714, 723 (5th Cir. 2015) (citing 18 U.S.C. §
3553(a)). “A non-Guideline sentence unreasonably fails to reflect the statutory
sentencing factors where it . . . does not account for a factor that should have
received significant weight.” United States v. Smith, 440 F.3d 704, 708 (5th
Cir. 2006).
        Redmond argues that while the district court claimed to consider the
§ 3553(a) factors, it failed to consider a factor that should have received
significant weight—the advisory sentencing Guideline range—as evidenced by
the district court stating that it was “basing [its] decision as to the ruling that
should be made on the factors the Court should consider in sentencing under
18 [U.S.C. §] 3553(a) without regard to what the advisory guideline range
might be in this case.” We disagree.
        First, the sentencing transcript reveals that the district court did not
simply state that it was considering the § 3553(a) factors, but indeed analyzed
them.     The court discussed at length its reasons for imposing an above-
Guidelines sentence, including the other bank robberies Redmond committed,
his conviction for interference with a telephone call where he attempted to
prevent his ex-wife from calling 911, and “[p]erhaps the most serious thing,”
his pending charge for aggravated assault of a family member where he
stabbed and beat his wife. After describing these offenses, the court stated
that “[t]he defendant is a danger to the community and will continue to be a
danger to the community,” and, “consider[ing] all of the factors the Court
should consider under 18 [U.S.C. §] 3553(a) in sentencing, the Court’s



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                                 No. 19-10535
concluded that . . . the defendant should receive a sentence of 180 months
imprisonment.”
      Moreover, “the district court implicitly considered the [G]uidelines range
that would have applied had it erred in calculating” Redmond’s Guidelines
range, see United States v. Torres-Ibarra, 536 F. App’x 461, 462 (5th Cir. 2013),
by stating that “the sentence would be the same as I’ve imposed, without
regard to what ruling I . . . should have made on the subject of abduction.”
Contrary to Redmond’s argument, then, the district court did not fail to
consider the Guidelines range—it considered both the miscalculated Guideline
range and what range would have applied had the court sustained Redmond’s
objection on the abduction enhancement; it simply dispensed with those
recommendations as insufficient to satisfy the § 3553(a) factors.
      As for the extent of the variance—a 286% increase from the top of the
properly calculated Guidelines range—the Government notes that this court
has upheld similar variances. See, e.g., United States v. Smith, 417 F.3d 483,
490-93 (5th Cir. 2005) (finding no abuse of discretion in 293% increase from
the top of the advisory range); Diehl, 775 F.3d at 719, 726 (upholding 229%
increase from the top of the Guidelines range). We conclude that “as a matter
of substance, the sentencing factors in section 3553(a) support the sentence.”
Gerezano-Rosales, 692 F.3d at 400 (quoting United States v. Smith, 440 F.3d
704, 707 (5th Cir. 2006)).
                                      ***
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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                                 No. 19-10535
HAYNES, Circuit Judge, concurring:

      I concur in the judgment and in Sections I, III, and IV of the opinion.
Because the determination of whether this was an “abduction” is a complex
legal question and not determinative of the outcome, I would not reach the
issue and therefore do not join in Section II.




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