IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10535

UNITED STATES OF AMERICA, 

 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 fourlevel 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 

United States Court of Appeals

Fifth Circuit

FILED

July 13, 2020

Lyle W. Cayce

Clerk

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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.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 

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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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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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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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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. ReyesContreras, 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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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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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 aboveGuidelines 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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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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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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