Case: 19-40870 Document: 00515535914 Page: 1 Date Filed: 08/21/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-40870 August 21, 2020
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Kendall Ray Gray,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:19-CR-2-1
Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
Per Curiam:*
Kendall Gray appeals his conviction and sentence for being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Gray contends
that the district court erred both by denying his motion to suppress evidence
found during an inventory search and by determining that his prior state
*
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opinion should not be published and is not precedent except under the limited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.
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No. 19-40870
conviction for robbery qualified as a crime of violence. Finding both
arguments unpersuasive, we AFFIRM.
In late 2018, Texarkana police officers arrested Gray after he parked
his vehicle in a public street and attempted to flee when the officers activated
their lights in order to make a lawful stop for a traffic violation. Following
department policy regarding vehicles parked in a public street when the
driver is arrested, officers impounded Gray’s Jeep. As the officers
inventoried the contents of the vehicle, they discovered narcotics in a
driver’s-side door panel pocket and a loaded pistol under the driver’s seat.
Gray moved to suppress all evidence found during the inventory of his Jeep.
A magistrate judge denied the motion, holding that the impoundment and
inventory search of the vehicle were legal and performed in accordance with
department policy. Upon Gray’s objection, the district court conducted a de
novo review and agreed with the magistrate judge’s conclusions
Gray was convicted by a jury. When calculating his offense level, the
presentence report (“PSR”) determined that Gray had a prior felony
conviction for a crime of violence (Arkansas robbery) at the time he
committed the instant Section 922(g) offense. The district court sentenced
Gray within the guidelines range calculated by the PSR. Gray objected to the
PSR’s classification of his Arkansas robbery conviction, but the district court
held that his conviction qualified as an enumerated offense under U.S.S.G.
§ 4B1.2(a)(2) according to Eighth Circuit law and overruled Gray’s
objection. He received a within-guidelines sentence of 120 months
imprisonment, together with three years supervised release.
Gray timely appealed. Concerning the suppression motion, we accept
as true the district court’s factual findings unless clearly erroneous and
review questions of law de novo. United States v. McKinnon, 681 F.3d 203,
207 (5th Cir. 2012). We review “the district court’s interpretation and
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No. 19-40870
application of the Sentencing Guidelines de novo.” United States v. Hinkle,
832 F.3d 569, 574 (5th Cir. 2016) (quoting United States v. Cedillo-Narvaez,
761 F.3d 397, 401 (5th Cir. 2014)).
Gray argues that the Texarkana Police Department’s (“TPD”)
impoundment policy and the decision to impound his vehicle were
unreasonable. We disagree. Gray asserts, for the first time on appeal, that
the policy is per se unreasonable and, were it not for a fatal flaw in his
presentation, we would review that contention for plain error. See United
States v. Vasquez, 899 F.3d 363, 372 (5th Cir. 2018), as revised (Aug. 24,
2018), cert. denied, 139 S. Ct. 1543 (2019). However, Gray abandoned this
issue by failing to cite any legal authority to support his conclusional assertion
that the TPD’s impoundment policy is per se unreasonable and not even
citing the policy itself. 1 See United States v. Reagan, 596 F.3d 251, 255 (5th
Cir. 2010); see also FED. R. APP. P. 28(a)(8)(A) (requiring the appellant to set
out his “contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies.”). We do
not address this contention.
Gray’s further argument that the officer’s on-the-spot decision to
impound his vehicle was unreasonable is also unavailing. First, there was
nobody at the scene of the arrest to whom the officer could have released the
vehicle. None of several other exceptions to the TPD’s impoundment policy
applied in these circumstances. We have previously found that decisions to
impound a vehicle fall within officers’ community caretaking function—an
exception to the warrant requirement—and were thus reasonable, when,
“[b]y impounding the vehicle, [the officer] ensured that the vehicle was not
left on a public street where it could have become a nuisance, and where it
1
Gray erroneously stated that the impoundment policy is not in the record. It is.
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could have been stolen or damaged.” McKinnon, 681 F.3d at 203, 209; see
also United States v. Ponce, 8 F.3d 989, 996 (5th Cir. 1993) (impounding was
reasonable where the vehicle would otherwise have been left “in a public
parking lot where it could have become a nuisance, and where it could have
been damaged or stolen”); United States v. Staller, 616 F.2d 1284, 1289 (5th
Cir. 1980) (that a vehicle was locked and legally parked “does not necessarily
negate the need to take the vehicle into protective custody”). The district
court did not clearly err in determining that the decision to impound Gray’s
vehicle was reasonable under the facts of record.
Gray next argues that TPD’s inventory policy is unreasonably broad.
“[A]n inventory search of a seized vehicle is reasonable . . . if it is conducted
pursuant to standardized regulations and procedures that are consistent
with” the purposes of taking an inventory. McKinnon, 681 F.3d at 209-10
(internal quotation marks and citation omitted); see also Colorado v. Bertine,
479 U.S. 367, 374 (1987) (“[R]easonable police regulations relating to
inventory procedures administered in good faith satisfy the Fourth
Amendment.”). Yet “an inventory search must not be a ruse for a general
rummaging in order to discover incriminating evidence.” Florida v. Wells,
495 U.S. 1, 4 (1990).
Once again, Gray mistakenly asserts that the inventory policy is not in
the record. And as was the case with the impoundment policy, TPD’s
inventory policy is not as broad as Gray suggests. The policy imposes several
limitations on an officer’s examination of a vehicle, such as prohibiting
inventory when the officer cannot enter the vehicle without damaging it, and
prohibiting search of the contents of locked briefcases, boxes, or other
containers. As we explained in McKinnon, even a “slight constraint” on the
officer’s discretion is enough to deprive him of the unfettered discretion that
the Court in Wells found to be “constitutionally deficient.” 681 F.3d at 210.
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For all these reasons, the district court did not err by denying Gray’s motion
to suppress.
Turning to Gray’s sentencing argument, he contends that the
Arkansas robbery statute underlying his prior conviction was not a crime of
violence (“COV”) for sentencing purposes. The PSR applied
Section 2K2.1(a)(4)(A), which authorizes a base offense level of 20 if “the
defendant committed any part of the instant offense subsequent to sustaining
one felony conviction of,” as pertinent here, a COV. U.S.S.G.
§ 2K2.1(a)(4)(A). “Crime of violence” has the meaning given that term in
U.S.S.G. § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.”
§ 2K2.1, comment (n.1). Among the enumerated COV offenses listed in
§ 4B1.2(a) is “robbery.”
Typically, to determine whether a prior conviction qualifies as a
§ 4B1.2 COV, this court compares the elements of the statute of conviction
to the relevant federal definition, and we must look to the generic,
contemporary meaning of an enumerated crime. See United States v. Fierro-
Reyna, 466 F.3d 324, 327 (5th Cir. 2006). “[T]he generic form of robbery
may be thought of as aggravated larceny, containing at least the elements of
misappropriation of property under circumstances involving [immediate]
danger to the person.” United States v. Santiesteban-Hernandez, 469 F.3d
376, 380 (5th Cir. 2006) (internal quotation marks and citation omitted),
abrogated on other grounds by United States v. Rodriguez, 711 F.3d 541 (5th Cir.
2013). If the statute of conviction defines an offense more broadly than does
the generic definition, “that offense cannot serve as a predicate for the
adjustment.” United States v. Morales-Mota, 704 F.3d 410, 412 (5th Cir.
2013).
Gray pled guilty to robbery under Arkansas Code Annotated § 5-12-
102. The statute of conviction states that “[a] person commits robbery if,
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with the purpose of committing a felony or misdemeanor theft or resisting
apprehension immediately after committing a felony or misdemeanor theft,
the person employs or threatens to immediately employ physical force upon
another person.” ARK. CODE ANN. § 5-12-102(a). Applying the same
definition of robbery as this circuit, the Eighth Circuit has concluded that,
based on the statute’s plain language, “Arkansas robbery has the same
elements as the generic definition of robbery.” 2 United States v. Stovall,
921 F.3d 758, 760 (8th Cir. 2019). Stovall also cited Arkansas case law
reinforcing its conclusion. Id. Finding the reasoning of Stovall, as well as an
unpublished decision from this circuit, to be persuasive, we reaffirm that the
generic definition of robbery and Arkansas robbery have the same elements.
See United States v. Farris, 312 F. App’x 598, 599 (5th Cir. 2009). The
district court applied the appropriate guidelines range for Gray’s sentence.
AFFIRMED.
2
Arkansas is located in the Eighth Circuit.
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