United States v. Redmond

• Decision Date: 13 July 2020
• Docket Number: No. 19-10535,19-10535
• Citation: 965 F.3d 416
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Aaron Sebastian REDMOND, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

965 F.3d 416

UNITED STATES of America, Plaintiff - Appellee

v.Aaron Sebastian REDMOND, Defendant - Appellant

No. 19-10535

United States Court of Appeals, Fifth Circuit.

FILED July 13, 2020

Amber Michelle Grand, Attorney, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.

Brandon Elliott Beck, Federal Public Defender's Office, Northern District of Texas, Lubbock, TX, Taylor Wills Edwards Brown, Federal Public Defender's Office, Northern District of Texas, Fort Worth, TX, for Defendant-Appellant.

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 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 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.merriamwebster.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 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, 135 S.Ct. 785, 190 L.Ed.2d 656 (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, 135 S.Ct. 785 (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, 135 S.Ct. 785 (emphasis added); see also id. at 269, 135 S.Ct. 785 ("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

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 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...