United States Court of Appeals

for 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, 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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

November 23, 2021

Lyle W. Cayce

Clerk

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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. DelgadoMartinez, 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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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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