United States v. Adrian Lomas

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-3194
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Adrian Romal Lomas
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: April 14, 2016
Filed: June 27, 2016
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Before RILEY, Chief Judge, WOLLMAN and MURPHY, Circuit Judges.
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WOLLMAN, Circuit Judge.
A jury found Adrian Romal Lomas guilty of bank robbery, in violation of 18
U.S.C. § 2113(a), and was sentenced by the district court1 to 240 months’
imprisonment. On appeal, Lomas challenges several of the district court’s evidentiary
1
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
rulings, the court’s denial of his motion for a mistrial, and the court’s sentence. We
affirm.
On June 6, 2014, Lomas and G.Y., a fifteen-year-old juvenile, robbed a branch
of the Family Credit Union in Davenport, Iowa. Lomas, wearing sunglasses, a
Chicago Bulls baseball cap, a bandana, and gloves, approached the teller on duty,
displayed a pistol tucked into the front waistband of his pants, and demanded “all the
money” in the teller drawer. G.Y., wearing a hooded sweatshirt, a bandana, and
gloves, stood behind Lomas at the teller counter and passed Lomas a backpack into
which Lomas placed the $4,075 that the teller handed over from her drawer. Several
surveillance cameras inside the credit union recorded the robbery.
Lomas and G.Y. ran out of the credit union and down the street, where they
jumped into a light blue Ford Windstar minivan that was waiting for them with its
sliding door open. Natasha Havercamp, who happened to be driving past the area at
the time, observed Lomas and G.Y., both with bandanas still obscuring their faces,
as they ran to the minivan and leapt inside. Havercamp followed the minivan a short
distance, noted the vehicle’s license plate number, and called the Davenport police
department to report the suspicious activity. At about the same time, the Davenport
police received a call that the credit union had been robbed. Believing the two
incidents were likely related, the police ran the license plate number provided by
Havercamp and learned that the minivan was registered to Danielle Levetzow at an
address on LeClaire Street in Davenport. Officers proceeded to LeClaire Street, but
the minivan was not there. An officer watching the residence from a nearby alley was
approached by one of Levetzow’s neighbors, who agreed to notify police when the
minivan returned.
Levetzow, Lomas, and Levetzow’s two young children returned to LeClaire
Street in the minivan later that afternoon; Levetzow’s neighbor called the police; and
officers quickly arrived to secure the area and maintain surveillance of the residence
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while a search warrant was obtained. Levetzow and the children soon left the house,
and police arrested Levetzow and detained the children until Levetzow’s mother,
Cheryl Levetzow (Cheryl), arrived. Although officers continued to watch the
residence, when they eventually executed the search warrant, Lomas was not inside
the house. One of the officers had earlier seen an individual walking away from the
general area, but the officer did not recognize that individual as Lomas. Only after
execution of the search warrant revealed an empty house did officers realize that it
was Lomas who had walked away. The police seized several items from the
residence and impounded Levetzow’s minivan.
In the meantime, Levetzow was taken to the police station and charged with
robbery. At the station, Detectives Tim Murphy and Bill Thomas, as well as
Sergeant Kevin Smull, interviewed Levetzow about the robbery. Murphy and Smull
testified that Levetzow initially denied any knowledge of the robbery and claimed
that the $700 in cash she had been carrying was money for rent. After the officers
repeatedly accused her of lying, however, she admitted that she was the getaway
driver for the credit union robbery. Levetzow revealed details about the robbery,
including a description of the clothing worn by the two robbers, whom she identified
as Lomas and a man she had just met named “Emanuel.” She told the officers that the
backpack used in the robbery had been thrown into the river. After the interview,
Levetzow was bailed out of jail by Cheryl, who then drove Levetzow and her children
back to the LeClaire Street residence. Cheryl testified that she had obtained the bail
money from a grocery bag containing $2,500 in cash from the robbery that Levetzow
had stashed in a bathroom cabinet at Cheryl’s house earlier that day. When the group
arrived at the LeClaire Street residence, they found Lomas asleep on the couch.
Although the police had obtained a warrant to arrest Lomas for the robbery,
they were unable to locate him, and so on June 11 they obtained a warrant to track the
location of Lomas’s cellular telephone, and, after receiving data from his service
provider, they learned that Lomas’s cell phone was “pinging” near the airport in
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Moline, Illinois. Officers were also aware that Levetzow had retrieved her minivan
from the police impound lot, so they began searching for it in the area near the
airport. The police eventually discovered the minivan in a motel parking lot and
learned which room Levetzow had rented. While officers were preparing to
approach, Lomas exited the motel room and was arrested. Inside the room, officers
found Levetzow; G.Y.; and Levetzow’s three children, including her teenage
daughter, A.S. The police arrested G.Y., detained Levetzow, and obtained
Levetzow’s consent to search the motel room, where they seized cell phones
belonging to Lomas, G.Y., and A.S. Officers obtained a warrant to search Lomas’s
cell phone and learned that text messages seeking to borrow a “tool” or a “unit” had
been sent from the phone to several telephone numbers in the days prior to the
robbery.
Two days after Lomas and G.Y. were arrested at the motel, Detective Scott
Lansing and another officer interviewed Levetzow again, at which time she admitted
that the backpack from the robbery had been hidden and not thrown into the river.
She then led the two officers to an alley and pointed to a large bush, from which
Lansing recovered and then opened the backpack, which contained the robbers’
clothing, along with an imitation firearm—a BB gun that had been altered to appear
real.
G.Y., who had already pleaded guilty to the credit union robbery and was
incarcerated at the Iowa State Reformatory, testified that he and Lomas committed the
robbery and that Levetzow drove the getaway vehicle. He further stated that he had
obtained the BB gun that Lomas had carried in the front waistband of his pants and
displayed to the teller during the robbery. He also identified the backpack and its
contents as items he and Lomas had used in the robbery.
Levetzow’s daughter A.S. testified that she overheard Lomas and Levetzow
discussing a plan to rob a bank. She also overheard Lomas describe the plan to G.Y.
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and request G.Y.’s help locating a firearm, which Lomas referred to as a “tool.” A.S.
also testified that Lomas, Levetzow, and G.Y. had discussed the robbery in her
presence in the motel room, including a discussion of “where the money was.”
The district court rejected Lomas’s pretrial objection to the government’s
introduction of evidence that on April 30, 2014, some five weeks before the credit
union robbery, Lomas had discarded a firearm behind the wheel of a parked vehicle
and that police had recovered the firearm after they arrested Lomas. The court agreed
with the government that this evidence was “relevant and probative” to “explain[]
why [Lomas] was looking for a gun in the days . . . leading up to the robbery.” Sally
Cerra, whose kitchen window faced the alley, testified that she had seen two men
running in an alley behind her residence on April 30 and that one of the men, later
identified as Lomas, had removed a firearm from the front waistband of his pants and
had placed it on the ground behind the wheel of a parked vehicle. Sergeant Smull
testified that he was responding to a call of “shots fired” near a high school on April
30 when he noticed Lomas and another man standing in an alley and detained them
both. Smull stated that Cerra informed him about what she had seen and that he then
found a .45-caliber firearm beneath the vehicle. Smull also testified that he had
observed Levetzow driving the light blue minivan in the area while these events
unfolded. Lomas moved for a mistrial, which the district court denied.
Following the entry of the verdict, a Presentence Investigation Report (PSR)
was prepared. It recommended a base offense level of 20 for the robbery, U.S.
Sentencing Guidelines Manual (U.S.S.G. or Guidelines) § 2B3.1; a 2-level
enhancement for taking property from a financial institution, § 2B3.1(b)(1); a 3-level
enhancement for brandishing a dangerous weapon, § 2B3.1(b)(2)(E); a 2-level
enhancement for acting as an organizer or leader, § 3B1.1(c); and a 2-level
enhancement for using a minor in the offense, § 3B1.4, resulting in an adjusted
offense level of 29. Because of Lomas’s two prior felony convictions—a 1996 Iowa
conviction for first-degree robbery and a 2010 Nebraska conviction for burglary—the
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PSR recommended that the § 4B1.1 career-offender provision be applied, leading to
a total offense level of 32, which, when coupled with a criminal history category of
VI, resulted in an advisory Guidelines sentencing range of 210 to 240 months in
prison.
In a sentencing memorandum, the government initially took the position that
Lomas’s 2010 Nebraska burglary conviction was not a crime of violence under the
Guidelines career-offender provision because Lomas had burglarized a business, not
a dwelling. See U.S.S.G. § 4B1.2(a)(2) (defining “crime of violence” to mean
“burglary of a dwelling”). Without the application of the career-offender provision,
Lomas’s total offense level would have been 29 and his sentencing range 151 to 188
months. But because of Lomas’s extensive and violent criminal history, the
government moved for an upward variance from this range to a sentence of 240
months. Prior to the sentencing hearing, however, the government changed its
position and argued in a supplemental sentencing memorandum that Lomas was
properly characterized as a career offender.
Lomas filed objections to the PSR, challenging the facts on which the
aggravating-role, brandishing, and using-a-minor enhancements were based. He also
argued that his 2010 burglary conviction under Nebraska Revised Statutes § 28-
507(1) did not qualify as a predicate crime of violence for purposes of the career-
offender provision. To establish that the conviction qualified as a predicate crime of
violence, the government introduced the Nebraska judgment and charging document,
which set forth the statutory language, as well as a “Google Maps photo” of the
building located at the address set forth in the charging document. Lomas objected
to the introduction of this evidence, arguing that because the Nebraska burglary
statute was “broader than generic burglary” and was “indivisible,” the court
documents underlying the Nebraska conviction were not admissible and the Nebraska
burglary conviction was categorically not a crime of violence under Descamps v.
United States, 133 S. Ct. 2276 (2013). The district court rejected Lomas’s argument,
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concluding that the Nebraska burglary conviction qualified as a crime of violence and
that the career-offender provision applied.
Lomas thereafter requested a sentence of 151 months, arguing that “[t]he
Guidelines, without the career offender designation, would be 151 to 188” months
and that a 151-month sentence would “more than adequately address” the sentencing
factors raised by the government “in [its] first Sentencing Memo.” The district court
disagreed, concluding instead that a 240-month sentence was appropriate, regardless
of whether the career offender provision applied. Specifically, the court stated:
I would reach the same sentence either under the Career Offender
Guideline, which places the 240 months at the top of the Guideline
range, or as a result of an upward variance even if we were considering
the range of 151 to 188. . . . As indicated, the Court does reach this
sentence either on the basis of the career offender status or on the basis
of dangerousness and likelihood of crimes in the future.
Lomas first argues that the district court erred in admitting the “irrelevant and
highly prejudicial” testimony of Cerra and Smull that he had discarded a firearm
several weeks before the credit union robbery. We review a district court’s decision
to admit evidence of a prior bad act for abuse of discretion, reversing “only when
such evidence clearly had no bearing on the case and was introduced solely to prove
the defendant’s propensity to commit criminal acts.” United States v. Yielding, 657
F.3d 688, 701 (8th Cir. 2011) (internal quotation marks and citation omitted). While
evidence of a prior bad act is not admissible to show propensity, it is admissible to
show “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Fed. R. Evid. 404(b). Such evidence is admissible if
(1) it is relevant to a material issue, (2) it is similar in kind and not overly remote in
time to the charged offense, (3) it is supported by sufficient evidence, and (4) its
potential prejudice does not substantially outweigh its probative value. See Yielding,
657 F.3d at 701.
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We conclude that the challenged testimony was relevant to the crime charged.
It demonstrated that Lomas had knowledge of firearms, that he had carried a similar-
looking firearm within weeks of the robbery, and that he had carried the firearm in
a fashion similar to that employed by the bank robber—in the front waistband of his
pants. In addition, this testimony showed that shortly before the bank robbery, Lomas
was associated with Levetzow, an accomplice in the robbery, and her minivan, the
getaway vehicle used in the bank robbery. Moreover, Lomas’s abandonment of the
firearm in April 2014 and its subsequent seizure by the police was relevant to show
why Lomas was searching for a firearm in the days preceding the June 2014 bank
robbery. Thus, it cannot be said that this testimony “clearly had no bearing on the
case and was introduced solely to prove [Lomas’s] propensity to commit criminal
acts.” See Yielding, 657 F.3d at 701; see also Fed. R. Evid. 401 (noting that evidence
is relevant if it has “any tendency” to make a fact that is of consequence in
determining the action more or less probable than it would be without the evidence).
We also conclude that the potentially prejudicial effect of the challenged
testimony did not substantially outweigh its probative value. Only “evidence that is
unfairly prejudicial, that is, [evidence that] tends to suggest decision on an improper
basis” will be excluded as substantially more prejudicial than probative. United
States v. Myers, 503 F.3d 676, 682 (8th Cir. 2007). “[E]vidence that is merely
prejudicial in the sense of being detrimental to a [defendant’s] case,” on the other
hand, is admissible. Id. (citation omitted). There is little question that the testimony
at issue here was prejudicial, but it was not unfairly so. Neither Smull nor Cerra
testified that Lomas fired, brandished, or used the firearm in any manner that was
illegal. Although Lomas’s efforts to conceal the firearm under the parked vehicle
might have suggested some wrongdoing on his part, the district court admonished the
jury that the testimony should not be considered as evidence that Lomas’s possession
of the firearm was illegal or that he was connected in any way to the “shots fired”
investigation mentioned by Smull. This limiting instruction substantially diminished
any danger that the jury would decide the case on an improper basis. See United
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States v. Kent, 531 F.3d 642, 651 (8th Cir. 2008) (noting that “this Court has been
reluctant to find that the evidence was unfairly prejudicial when the district court
gave an appropriate limiting instruction”) (citation omitted); United States v. Paul,
217 F.3d 989, 997 (8th Cir. 2000) (noting that “a jury is presumed to follow all
instructions”). Accordingly, we conclude that the district court did not abuse its
discretion by admitting the testimony that Lomas discarded a firearm in April 2014.
Lomas also contends that the district court abused its discretion by denying his
motion for a mistrial after Smull testified that he had been in the area where Lomas
discarded the firearm in response to a call of “shots fired” at a nearby high school.
See United States v. Nelson, 984 F.2d 894, 897 (8th Cir. 1993) (standard of review).
Lomas argues that the “shots fired” testimony improperly suggested to the jury that
he was the shooter involved in the incident, which created a risk of undue prejudice
that warranted a mistrial. We disagree. After hearing argument from counsel outside
the presence of the jury, the district court denied Lomas’s motion for a mistrial and
suggested submitting a limiting instruction to the jury. Defense counsel questioned
the adequacy of any limiting instruction, but eventually consented to the court’s
proposed instruction in light of the court’s denial of a mistrial. The court then
directed the jury “to completely disregard any reference to shots fired at a school in
your consideration of this case and your deliberations.” The court also cautioned the
jury that Lomas was “not here charged with possession of a firearm” and that Smull’s
testimony was not evidence that Lomas “was unable to be in possession of a firearm.”
The “admission of allegedly prejudicial testimony is ordinarily cured by an
instruction to the jury to disregard the testimony,” Nelson, 984 F.2d at 897, because
the jury is presumed to follow such an instruction, see Paul, 217 F.3d at 997. The
district court properly instructed the jury to disregard Smull’s “shots fired” testimony
and to consider the remainder of his testimony only for the limited purpose of
determining whether Lomas possessed a firearm in April 2014. Accordingly, we
conclude that the court did not abuse its discretion in denying Lomas’s motion for a
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mistrial. See Kent, 531 F.3d at 651 (noting our reluctance to find such testimony
“unfairly prejudicial when the district court gave an appropriate limiting instruction”).
Lomas next argues that the district court erred in admitting the alleged hearsay
testimony of several witnesses describing statements made by Levetzow, who did not
testify at trial. We review a district court’s evidentiary rulings for abuse of discretion.
United States v. Burch, 809 F.3d 1041, 1045 (8th Cir. 2016). A district court’s error
in admitting hearsay evidence is harmless if the “error did not influence or had only
a very slight influence on the verdict.” Id. (quoting United States v. Eagle, 498 F.3d
885, 888 (8th Cir. 2007)).
Lomas first challenges the testimony of Detective Kevin Murphy, who stated
during redirect examination that when he interviewed Levetzow on the day of the
robbery, she admitted that “she knew it was a robbery” and that Lomas “was the
robber.” This testimony came in response to defense counsel’s first broaching during
cross examination the subject of Murphy’s interview with Levetzow on the day of the
robbery. Defense counsel elicited Murphy’s testimony that Levetzow initially denied
knowing why she was being interviewed by the police that day, that the officers
conducting the interview several times accused Levetzow of lying, that she told the
officers that the backpack used in the robbery had been thrown into the river, and that
she wanted Lomas “buried.”
“It is fundamental that where the defendant ‘opened the door’ and ‘invited
error’ there can be no reversible error.” United States v. Beason, 220 F.3d 964, 968
(8th Cir. 2000) (quoting United States v. Steele, 610 F.2d 504, 505 (8th Cir. 1979)).
Murphy’s redirect testimony was admissible to clarify or rebut the issues first raised
by defense counsel on cross-examination, see id., and thus we conclude that the
district court did not abuse its discretion by admitting it, see United States v. Noe,
411 F.3d 878, 886 (8th Cir. 2005) (concluding that district court did not abuse its
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discretion by allowing government to clarify on redirect false impression created by
defendant on cross-examination).
Lomas next challenges the testimony of Levetzow’s teenage daughter, A.S.,
who stated that she was present while Levetzow and Lomas discussed robbing a bank
and that she was present in the motel room after the robbery while Levetzow, Lomas,
and G.Y. discussed “where the money was and stuff.” The statements made by
Lomas himself and overheard by A.S. are nonhearsay statements or admissions “made
by the party” and were properly admitted. See Fed. R. Evid. 801(d)(2)(A); see also
United States v. Cline, 570 F.2d 731, 736 (8th Cir. 1978) (citing Rule 801(d)(2)(A)
and concluding that “[t]he testimony was not hearsay because it was appellant’s own
statement which was being offered against him”); United States v. Faulkner, 636 F.3d
1009, 1019 (8th Cir. 2011) (same). A.S.’s testimony was also admissible as evidence
of Lomas’s nonhearsay adoptive admissions. See Fed. R. Evid. 801(d)(2)(B) (noting
that a statement is not hearsay if it “is offered against an opposing party and . . . is one
the party manifested that it adopted or believed to be true”) “For an out-of-court
statement to constitute an adoptive admission, the defendant must have been present
when the statement was made, have understood it, and have had an opportunity to
deny it.” United States v. Kehoe, 310 F.3d 579, 591 (8th Cir. 2002). These
requirements are satisfied: Lomas was present and engaged in conversation with
Levetzow (or with Levetzow and G.Y.) when the statements were made and
overheard by A.S., and Lomas does not argue that he failed to understand the content
or import of the statements or that he did not have an opportunity to deny the truth of
the statements. The district court thus did not abuse its discretion by admitting the
challenged testimony. See id. (concluding that a bystander’s statement was the
defendant’s own, because he did not contradict or deny it).
Lomas makes two additional hearsay arguments. He challenges the testimony
of Detective Scott Lansing, who stated that he spoke with Levetzow on June 13,
sometime after Lomas had been arrested at the motel, and that Levetzow had
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remarked that “she knew where the backpack was that contained the outfits which
[Lomas and G.Y.] were wearing that day for the robbery.” Lomas also challenges the
introduction of screenshots of Facebook private messages exchanged between A.S.,
G.Y., and another individual shortly after the robbery, in which A.S. states, among
other incriminating remarks, “[l]ook up the davenport bank robbery it was [G.Y.] and
[Lomas] and my mom drove them.” We need not determine whether the challenged
evidence constituted inadmissible hearsay, because any error in admitting it was
harmless.
“An erroneous evidentiary ruling is harmless if it does not have a substantial
influence on the outcome” of the trial. Yielding, 657 F.3d at 700. The government
presented overwhelming evidence that Lomas committed the bank robbery, including
the testimony of G.Y., who committed the robbery with Lomas; the testimony of the
teller Lomas confronted during the robbery; the recordings from the credit union
security cameras; the testimony of A.S., who overheard Lomas planning the robbery
and discussing the proceeds therefrom; and the text messages from Lomas’s cell
phone in which he was searching for a “tool” or a “unit” shortly before committing
the robbery. In light of this evidence, we conclude that the district court’s admission
of Lansing’s testimony and A.S.’s Facebook conversations “did not have a substantial
influence on the verdict and was harmless beyond a reasonable doubt.” Id. at 701;
see also United States v. Londondio, 420 F.3d 777, 789 (8th Cir. 2005) (noting that
admission of hearsay evidence that is cumulative of properly admitted evidence “is
not likely to influence the jury and is therefore harmless error”).2
2
Lomas also challenges the testimony of Levetzow’s mother, Cheryl, arguing
that the district court improperly admitted “Levetzow’s statement to her mother that
Lomas ‘called her and told her to come get her clothes’” after officers had arrived at
the LeClaire Street residence on the date of the robbery. Lomas misstates the record.
Cheryl testified that it was A.S., not Levetzow, who had received the call from Lomas
to retrieve clothing from the house. In her own unobjected-to testimony on this point,
A.S. confirmed that this conversation with Lomas had occurred. Thus, any error in
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Lomas next argues that the district court abused its discretion by permitting
A.S. and Special Agent Jeffrey Huber to testify as lay witnesses that Lomas was
referring to a firearm when he used the terms “tool” and “unit” in conversations and
text messages. See United States v. Peoples, 250 F.3d 630, 639 (8th Cir. 2001)
(standard of review).
As for the testimony of A.S., a lay witness is permitted to express an opinion
that is “rationally based on his . . . perception, and helpful to . . . determining a fact
in issue.” United States v. Lemons, 792 F.3d 941, 948 (8th Cir. 2015) (citing Fed. R.
Evid. 701). “Personal knowledge or perceptions based on experience is sufficient
foundation for lay opinion testimony.” United States v. Smith, 591 F.3d 974, 982
(8th Cir. 2010) (citation omitted). A.S. lived with Levetzow and Lomas in the
LeClaire Street residence, and she based her testimony regarding Lomas’s use of the
word “tool” as a synonym for “gun” on her direct observations and perceptions of
Lomas. Her testimony was helpful to determining a fact in issue, namely, whether
Lomas used the word “tool” as a synonym for “firearm.” A.S.’s testimony was thus
relevant and admissible as lay opinion testimony. See United States v. Fregoso, 60
F.3d 1314, 1326 (8th Cir. 1995) (noting that a witness may testify about her
understanding of words used in a conversation she has witnessed).
Lomas argues that Agent Huber’s testimony about the meaning of “tool” and
“unit” in Lomas’s text messages was improper because Huber did not observe the text
messages as they were occurring and did not testify regarding his personal
perceptions, both of which are required for lay opinion testimony to be admissible.
The government counters that Huber’s statements were admissible as expert
admitting Cheryl’s testimony was harmless. See United States v. Johnson, 535 F.3d
892, 898 (8th Cir. 2008) (concluding that the admission of inadmissible hearsay was
harmless when the declarant testified and was available for cross-examination).
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testimony of a witness whose “knowledge, skill, experience, training, or education”
assisted the jury in understanding the evidence. Fed. R. Evid. 702.
Although Agent Huber likely would have qualified as an expert on criminal
behavior and terminology in light of his credentials, he was not offered as such by the
government. Thus, we are doubtful that Huber testified as an expert with respect to
the challenged testimony. See Fed. R. Crim. P. 16(a)(1)(G). When “a law
enforcement officer is not qualified as an expert . . . [his] testimony is admissible as
lay opinion only when [he] is a participant in the conversation, has personal
knowledge of the facts being related in the conversation, or observed the
conversations as they occurred.” Peoples, 250 F.3d at 641. In Peoples, an FBI agent,
testifying as a lay witness, gave extensive opinion testimony, “based on her
investigation after the fact,” regarding the meaning of common words and phrases
and “offer[ed] a narrative gloss that consisted almost entirely of her personal opinions
of what the [recorded] conversations meant” and “what defendants were thinking.”
Id. at 640-41. We concluded that the testimony went far beyond admissible lay
opinion testimony and was instead expert testimony improperly admitted “under the
guise of lay opinion[]” testimony. Id. Here, by contrast, Huber’s challenged
testimony was relatively brief and was limited to interpreting Lomas’s “coded”
terminology to refer to a firearm, and thus there is not a significant possibility that it
had a substantial impact on the jury’s verdict. Cf. id. at 642. See United States v.
Manning, 738 F.3d 937, 942 (8th Cir. 2014) (noting that we reverse an erroneous
evidentiary ruling “only if [the] error affects the substantial rights of the defendant
or has more than a slight influence on the [jury’s] verdict”); see also United States v.
Turner, 781 F.3d 374, 388-89 (concluding that improperly admitted expert testimony
of coconspirator witness, who interpreted code words used by others in recorded
conversations played for the jury, did not affect the verdict where other witnesses
interpreted similar words). A.S. had already testified to Lomas’s use of the word
“tool” to refer to a firearm, so Huber’s testimony was at the most partially cumulative.
See id. In light of the already-noted overwhelming evidence that Lomas committed
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the robbery while displaying an imitation firearm, any error in admitting Huber’s
challenged testimony was unlikely to have affected the jury’s verdict, and thus it was
harmless. See id.; cf. Londondio, 420 F.3d at 789 (holding that admission of hearsay
testimony that is cumulative of properly admitted evidence “is not likely to influence
the jury and is therefore harmless error”).
Finally, Lomas argues that the district court erred in applying the Guidelines
career-offender provision to calculate his sentence. He contends that because his
2010 Nebraska burglary conviction was not a predicate crime of violence under
§ 4B1.2(a), he did not have the two prior felony convictions necessary for career-
offender purposes. We need not rule on this contention, however, for any error in the
district court’s finding that Lomas was a career offender would be harmless given the
district court’s alternative ruling. See United States v. Sayles, 674 F.3d 1069, 1072
(8th Cir. 2012) (noting that a procedural sentencing error does not require reversal if
the district court “specifically identifies the contested issue and potentially erroneous
ruling, sets forth an alternative holding supported by the law and the record in the
case, and adequately explains its alternative holding”).
At sentencing, the government inquired whether the district court would have
imposed the same sentence had the court not found that Lomas was a career offender.
The district court responded affirmatively, specifically noting that, after considering
the § 3553(a) factors, it was granting the government’s motion for an upward
variance to a 240-month sentence “even if we were considering the [non-career-
offender Guidelines] range of 151 to 188 months.” The district court emphasized the
seriousness of Lomas’s offense, including the fact that Lomas “terrif[ied] the bank
teller” and “involve[d] a kid” in the offense. The court also acknowledged its
obligation to protect the public from further crimes by Lomas, specifically noting that
Lomas’s extensive criminal history suggested “almost an absolute certainty” that he
would recidivate. The court recognized its duty to adequately deter criminal conduct
of other persons and its obligation to avoid unwarranted sentence disparities,
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observing that Lomas’s conduct was “dissimilar from many cases of this kind.” In
light of the district court’s unequivocal statement that it would impose a 240-month
sentence notwithstanding its application of the career-offender provision, any error
in applying that provision is harmless.
Lomas contends that the district court’s alternative sentence is invalid because
the court did not resolve his outstanding objections to the brandishing, leader-or-
organizer, and use-of-a-minor enhancements that contributed to the 151- to 188-
month Guidelines sentencing range. As set forth above, the factual basis for
imposing these enhancements was established by the evidence presented at trial.
Lomas was identified as the individual who displayed the imitation firearm used
during the robbery; the surveillance recordings, as well as the testimony of the teller
and G.Y., established that Lomas was the leader or organizer of the offense; and G.Y.
testified that he was a minor when the offense was committed.3 The district court
noted the objections but “relie[d] upon the record made in the case,” including the
PSR, the “memoranda of counsel, [and] the supplemental materials,” to impose the
challenged enhancements. See United States v. Esqueda, 599 F. App’x 608, 609 (8th
Cir. 2015) (per curiam) (rejecting defendant’s argument that district court failed to
make adequate findings to support application of enhancement where record
supported enhancement and the court stated “that it was making its decision based on
its review of the record”); United States v. Civey, 364 F. App’x 284, 286 (8th Cir.
2010) (per curiam) (“The evidence adduced at trial . . . provided a basis for the
enhancement.”). Moreover, Lomas invited the court to consider the advisory
Guidelines range he now challenges as erroneous. At the sentencing hearing, defense
counsel stated that the Guidelines range “without the career offender designation,
would be 151 to 188. That would even include . . . the[] enhancements” at issue here.
3
Contrary to Lomas’s argument on appeal, the district court did find that Lomas
used a minor in the offense, stating that Lomas “did indeed involve a kid in the
process of this crime.”
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Defense counsel asked the court to impose a sentence at the “low end of the noncareer
offender Guidelines,” specifically stating that “based on all the factors . . . we are
asking for a sentence of 151 months.” In view of those requests, Lomas will not now
be heard to argue that the district court clearly erred in determining that the facts were
sufficient to support the challenged enhancements.
The judgment is affirmed.
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