United States v. Trent Davis ( 2018 )

Case: 17-20436 Document: 00514509347 Page: 1 Date Filed: 06/12/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-20436
Fifth Circuit
Summary Calendar
FILED
June 12, 2018
Lyle W. Cayce
Consolidated with 17-20523 Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TRENT LASHAWN DAVIS,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CR-362-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
A federal grand jury charged Trent Lashawn Davis with aiding and
abetting aggravated bank robbery, in violation of 18 U.S.C. § 2113(a), (d), and
18 U.S.C. § 2 (count one), and using and brandishing a firearm in relation to a
crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count two). A jury
found Davis guilty on both counts, and the district court sentenced him to 324
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-20436 Document: 00514509347 Page: 2 Date Filed: 06/12/2018
No. 17-20436
c/w No. 17-20523
months of imprisonment. 1 For the first time on appeal, Davis argues that the
district court constructively amended the indictment, in violation of the Fifth
Amendment, by instructing the jury on “using and carrying,” rather than
“using and brandishing,” a firearm during and in relation to a crime of violence.
The Government invokes the doctrine of invited error, which applies to
errors a party induced the court to commit, United States v. Lopez-Escobar,
920 F.2d 1241, 1246 (5th Cir. 1991), and is reviewed only for “manifest
injustice,” United States v. Rodriguez, 602 F.3d 346, 350-51 (5th Cir. 2010)
(internal quotation marks and citation omitted). We conclude that the doctrine
of invited error applies, and Davis has failed to show “manifest injustice.”
Davis himself affirmatively requested the very charge he now claims was
error. This is not a situation of mere acquiescence in another’s mistake. Cf.
United States v. Lerma, 877 F.3d 628, 632-33 (5th Cir. 2017) (involving mere
acquiescence in another’s mistake), cert. denied, 2018 WL 1912585 (U.S. May
29, 2018) (No. 17-8588). Davis argues that the Government also requested the
allegedly erroneous charge, thus, his request was of no moment. But that is
patently untrue: had Davis requested the correct charge, the district judge
would have been put on notice of a difference between the two and been able
to resolve any disagreement then and there. Instead, now Davis seeks yet a
third trial of this case on an error he not only failed to preserve but
affirmatively invited.
Davis makes no attempt to argue manifest injustice, and we find none
here. There was plenty of evidence that Davis brandished a firearm during
the robbery.
Accordingly, the judgment of the district court is AFFIRMED.
1 The district court also revoked Davis’s supervised release in a separate case. Davis
filed a notice of appeal in the revocation case, and the appeals were consolidated on Davis’s
motion, but Davis has not briefed any issues arising from the revocation.
2