On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-09-cr-00618-002) District Judge: The Honorable Mitchell S. Goldberg
The opinion of the court was delivered by: Nygaard, Circuit Judge
BEFORE: RENDELL, AMBRO, and NYGAARD, Circuit Judges
This appeal asks us to determine whether the District Court erred by enhancing the Appellant's offense level with a 4-level increase for an abduction. Although the issue is simply stated, the question of what constitutes an abduction within the meaning of U.S.S.G. § 2B3.1(b)(4)(A) has not been addressed by this Court until today.
It was nearly midnight on April 18, 2009, when Appellant Quintrell Reynos and another individual robbed Ed's Pizza House in Philadelphia. Reynos was charged with Hobbs Act robbery and conspiracy to commit Hobbs Act robbery, violations of 18 U.S.C. § 1951(a) and 2 (Counts One and Two) and with using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. §§ 924(c) and 2 (Count Three).*fn1 Reynos pleaded guilty to all three counts. At the plea hearing, the Government set forth the following factual background:
Three witnesses were working at the pizza shop at the time of the robbery: Juan Gutierrez, Jose Canabill, and Julian Costeo. Gutierrez*fn2 was moving from the cash register to the pizza oven shortly before midnight when he observed the other employees backing-up in the direction of the back door. Believing a robbery was about to take place, Gutierrez and his fellow employees went to the back of the shop and locked themselves into the bathroom. One of the workers called the police from a cell phone.
Thereafter, the black males [sic] started to kick in the bathroom door, gained entry and said he needed one of them to open up the cash register or I'll start shooting. [Employee] Gutierrez saw the male who he later identified as a person who frequented the store regularly and he was later identified as Quintrell Reynos and it was Reynos who brandished what Gutierrez has described as a large, black automatic pistol.
At Reynos' demand, Gutierrez opened the cash register. Reynos took the money in the cash register and then stated "do you have any more money? Reynos started to search Gutierrez. Reynos then said, "Jose, where's the money?" It was at this point that Gutierrez recognized Reynos from seeing him in the store many times before and serving him food. Reynos asked for keys to the back door. Gutierrez explained that the key was in the back. Reynos then moved toward the back of the shop and at that point, all of the employees ran out the front door of the shop.
Reynos did not challenge these facts.
A presentence report was prepared. Pursuant to the Sentencing Guidelines, Reynos' base offense level was set at 20. The PSR recommended a 4-point upward adjustment in the offense level for abducting the pizza shop employees, pursuant to U.S.S.G. § 2B3.1(b)(4)(A). The PSR also recommended a 3-point reduction in the offense level, resulting in a total base offense level of 21. Reynos' criminal history category was originally put at a Category III, but was later reduced to a Category I.
Thus, the advisory sentencing range was identified as between 37 and 46 months incarceration. A mandatory consecutive sentence of 120 months was also called for as a result of Reynos' violation of 18 U.S.C. § 924(c).
The District Court, over Reynos' objection, agreed with the PSR and enhanced his offense level by 4 points, finding his actions to have constituted an abduction under the Guidelines. After considering all of the appropriate sentencing factors, the District Court imposed a sentence of 157-months imprisonment. Reynos now appeals, arguing that the District Court procedurally erred by enhancing his offense level for abducting the pizza shop employees.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have appellate jurisdiction under 28 U.S.C. § 1291. "When reviewing the sentencing decisions of the district courts, we exercise plenary review over legal questions about the meaning of the [S]entencing [G]uidelines, but apply the deferential clearly erroneous standard to factual determinations underlying their application." United States v. Collado, 975 F.2d 985, 990 (3d Cir.1992). We assess whether a district court committed a "significant procedural error" and whether the ultimate sentence was substantially reasonable. United States v. Larkin, 629 F.3d 177, 181 (3d Cir. 2010).
Here, Reynos challenges only the procedural reasonableness of his sentence. Because he does not challenge any other part of the District Court's sentencing calculation, or take issue with the substantive reasonableness of the District Court's decision, Reynos has waived any challenge on those grounds. See United States v. Negroni, 638 F.3d 434, 440 n.4 (3d Cir. 2011). Reynos alleges two procedural errors: 1) that the District Court improperly applied the abduction enhancement to his sentence, and 2) that the District Court engaged in "double counting" by enhancing Reynos' sentencing for abduction where the use of the handgun actually served as the basis of his conviction under 18 U.S.C. § 924(c).
We begin with the abduction enhancement. The pre- sentence report recommended an upward adjustment for abduction based on Reynos' "kick[ing] open the bathroom door where the restaurant employees sought refuge, abduct[ing] them at gunpoint, and forc[ing] them to the cash register area." Section 2B3.1(b)(4)(A) provides for a four- level increase in the base offense level for robbery "if any person was abducted to facilitate commission of the offense or to facilitate escape." "Abducted" 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 could constitute an abduction." § 1B1.1, comment. (n.1(a)).
From this Guideline, we distill three predicates that must be met before the abduction enhancement can be applied. First, the robbery victims must be forced to move from their original position; such force being sufficient to permit a reasonable person an inference that he or she is not at liberty to refuse. Second, the victims must accompany the offender to that new location. Third, the relocation of the robbery victims must have been to further either the commission of the crime or the offender's escape.*fn3 Whether or not the Government has established these predicates would, of course, be reviewed for plain error, with the degree of distance or definition of location, entrusted as it must be, to the sound discretion of the District Court.
Reynos attacks the addition of this enhancement to his sentence. He argues three distinct points: first, that the record is devoid of evidence proving he used "force" against the pizza shop employees; second, that the record is silent on whether the employees accompanied him from the bathroom to the cash register; and ...