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United States v. Bobby Lance ( 2018 )


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  •      Case: 17-40708      Document: 00514730846         Page: 1    Date Filed: 11/20/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-40708                       United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
November 20, 2018
UNITED STATES OF AMERICA,                                                Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
BOBBY WAYNE LANCE,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:15-CR-26-1
Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
Bobby Wayne Lance appeals his convictions and sentences for bank
robbery, carjacking, two counts of Hobbs Act robbery, and four counts of using,
carrying, and possessing a firearm and ammunition during, and in furtherance
of, a crime of violence. Lance primarily argues that the district court erred by
denying his motions to suppress eyewitness identifications and evidence
relating to the bank robbery.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40708    Document: 00514730846     Page: 2   Date Filed: 11/20/2018
No. 17-40708
“When reviewing a denial of a motion to suppress evidence, this Court
reviews factual findings for clear error and the ultimate constitutionality of
law enforcement action de novo.” United States v. Robinson,
    741 F.3d 588
    , 594
(5th Cir. 2014). We must view the evidence in the light most favorable to the
prevailing party, which in this case is the Government. See United States
v. Pack,
    612 F.3d 341
    , 347 (5th Cir. 2010).
When the evidence is viewed in the light most favorable to the
Government, see
    id., Lance fails 
    to show that the reliability of the
identifications made by Government witnesses Misti Nicholson and Brady
Pierce was outweighed by the corrupting effect of any improper suggestions
made by law enforcement. See Perry v. New Hampshire,
    565 U.S. 228
    , 239
(2012). Contrary to his assertions, Lance did not move in the district court to
suppress the identifications made by Government witnesses Adrianna Kellogg
and Regina Wise, and he has, therefore, waived his challenges to those
identifications. See United States v. Scroggins,
    599 F.3d 433
    , 448 (5th Cir.
2010). Even if we review for plain error, Lance’s arguments regarding Kellogg
and Wise fail as he cites no evidence that law enforcement officers made any
suggestions to either Kellogg or Wise that could be deemed improper.
See
    Scroggins, 599 F.3d at 448-49
    . Lance also contends that the district court
erred by denying his motion to suppress evidence uncovered in a search of his
home on the basis that the incriminating nature of large amounts of cash found
in his clothes dryer was not immediately apparent, but his assertion is
unconvincing given that at the time of the discovery, he was suspected by law
enforcement of having robbed a bank. See United States v. Waldrop,
    404 F.3d 365
    , 369 (5th Cir. 2005).
Assuming without deciding that Lance’s challenge to his 18 U.S.C.
§ 924(c) convictions based upon Sessions v. Dimaya,
    138 S. Ct. 1204 
    (2018), is
2
Case: 17-40708   Document: 00514730846    Page: 3   Date Filed: 11/20/2018
No. 17-40708
adequately preserved, we review de novo. See United States v. Jennings,
    195 F.3d 795
    , 797 (5th Cir. 1999). Lance’s argument fails since his convictions for
bank robbery, carjacking, and Hobbs Act robbery remain crimes of violence
under § 924(c)(3)(A). See United States v. Johnson,
    880 F.3d 226
    , 235-36 (5th
Cir.), cert. denied,
    2018 WL 1993667 
    (Oct. 1, 2018) (No. 17-8632); United States
v. Jones,
    854 F.3d 737
    , 739-41 (5th Cir.), cert. denied,
    138 S. Ct. 242 
    (2017);
United States v. Brewer,
    848 F.3d 711
    , 715-16 (5th Cir. 2017); United States v.
Buck,
    847 F.3d 267
    , 274-75 (5th Cir.), cert. denied,
    138 S. Ct. 149 
    (2017).
While he asserts that the written judgment contains a typographical
error in that it fails to reflect the district court’s oral recommendation at
sentencing that he receive drug treatment, Lance’s claim has been mooted by
a correction made in the amended written judgment. As Lance concedes, we
review for plain error his unpreserved challenge to the $886.70 in restitution
imposed by the district court in relation to the robbery of the Carter’s Store
and RV Park convenience store. See Puckett v. United States,
    556 U.S. 129
    ,
135 (2009).    Lance does not attempt to show how any error affects his
substantial rights or seriously affects the fairness, integrity, or public
reputation of judicial proceedings, however, and his claim therefore fails. See
    id. AFFIRMED. 3