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 opinion should not be published and is not precedent except under the limited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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                                   No. 19-40870


 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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                                  No. 19-40870


 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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                                         No. 19-40870


 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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