# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 20615 Summary Calendar

**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, c arrying, 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

. H e was

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that thi s opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 23, 2021 Lyle W. Cayce Clerk Case: 20-20615 Document: 00516105102 Page: 1 Date Filed: 11/23/2021No. 20

- 20615

2 s e nt e n ce d to, int e r alia , 121 months’ imprisonme n t. 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 exis ts, 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
p reserved 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 § 1 B1.3(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) (robb e ry) . 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

. Case: 20-20615 Document: 00516105102 Page: 2 Date Filed: 11/23/2021No. 20

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3 T he movement of one person to another location within a building , if it facilitates robbery or escape from robbery, is sufficient to su pport an abduction enhancement

. S ee 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 an d 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**

**.** Case: 20-20615 Document: 00516105102 Page: 3 Date Filed: 11/23/2021