United States v. Love ( 2021 )

Case: 20-20615 Document: 00516105102 Page: 1 Date Filed: 11/23/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 23, 2021
No. 20-20615
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Davion Love,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-299-1
Before Barksdale, Willett, and Duncan, Circuit Judges.
Per Curiam:*
Davion Love pleaded guilty to: aiding and abetting interference with
commerce by robbery, in violation of 18 U.S.C. §§ 1951(a), 2; and aiding and
abetting using, carrying, and brandishing a firearm during, and in relation to,
a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2. He was
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-20615 Document: 00516105102 Page: 2 Date Filed: 11/23/2021
No. 20-20615
sentenced to, inter alia, 121 months’ imprisonment. Love contends: the
district court erred by imposing an abduction enhancement, pursuant to
Sentencing Guideline § 2B3.1(b)(4)(A), based on his codefendant’s conduct;
and our court should align its flexible approach to the abduction
enhancement with other circuits’ interpretations.
Although post-Booker, the Sentencing Guidelines are advisory only,
the district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 46, 51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, as in this instance, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Defendants are sentenced based on, inter alia, “relevant conduct”,
including “all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant”.
Guideline § 1B1.3(a)(1)(A) (outlining relevant-conduct factors determining
Guidelines range). For “jointly undertaken criminal activity”, relevant
conduct includes “all acts and omissions of others”: “within the scope” of
the joint activity; “in furtherance” of it; and “reasonably foreseeable” to
defendant. Guideline § 1B1.3(a)(1)(B).
For robbery offenses, the Guidelines provide a four-level
enhancement “[i]f any person was abducted to facilitate commission of the
offense or to facilitate escape”. Guideline § 2B3.1(b)(4)(A) (robbery). A
person is abducted if “forced to accompany an offender to a different
location”. Guideline § 1B1.1, cmt. n.1(A); see § 2B3.1, cmt. n.1.
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No. 20-20615
The movement of one person to another location within a building, if
it facilitates robbery or escape from robbery, is sufficient to support an
abduction enhancement. See United States v. Johnson, 619 F.3d 469, 471, 474
(5th Cir. 2010) (holding application of abduction enhancement proper). To
facilitate commission of the robbery, Love’s codefendant moved the store
cashier by her hair and jacket to the back of the market. The codefendant’s
movement of the cashier was reasonably foreseeable to Love. See Guideline
§ 1B1.3(a)(1)(B); Johnson, 619 F.3d at 474. Accordingly, the court did not
clearly err by applying the abduction enhancement to him. See United
States v. Bazemore, 839 F.3d 379, 387 (5th Cir. 2016) (noting finding not
clearly erroneous if “plausible in [the] light of the record as a whole”
(citation omitted)).
Love’s alternative contention, requesting our court “harmonize” our
flexible interpretation of the abduction enhancement and remand, is
foreclosed. Under our court’s rule of orderliness, one panel of our court may
not overturn an earlier panel’s decision “absent an intervening change in the
law, such as by a statutory amendment” or a decision of the Supreme Court
or our court en banc. E.g., Jacobs v. Nat’l Drug Intel. Ctr., 548 F.3d 375, 378
(5th Cir. 2008).
AFFIRMED.
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