UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4671
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KELVIN BERNARD BADGER, a/k/a K-Badge,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:06-cr-01254-MBS-1)
Submitted: August 30, 2011 Decided: September 9, 2011
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed and remanded by unpublished per curiam opinion.
J. Christopher Mills, J. CHRISTOPHER MILLS, LLC, Columbia, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, John David Rowell, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kelvin Bernard Badger appeals his life sentence
following his jury conviction of one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), (e) (2006) (“Count One”); and one count
of possession with intent to distribute cocaine, marijuana, and
crack cocaine, in violation of 21 U.S.C.A. § 841(a)(1),
(b)(1)(A), (C), (D) (West 1999 & Supp. 2011) (“Count Two”). On
appeal, counsel filed a brief arguing that the district court
plainly erred in admitting a firearm seized from Badger’s
vehicle on Count One and, in accordance with Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal on Count Two but questioning
whether the district court plainly erred in admitting drug
evidence and whether the district court imposed an unreasonable
sentence. Badger was advised of his right to file a pro se
brief, but has not done so. We ordered supplemental briefing to
address whether the district court erred in admitting the
firearm. Finding no reversible error, we affirm.
Badger first argues that the district court plainly
erred in admitting the firearm. As the parties acknowledge, we
review this unpreserved claim for plain error. United States v.
Wilkerson, 84 F.3d 692, 694 (4th Cir. 1996). In enforcing the
Fourth Amendment’s “guarantees of sanctity of the home and
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inviolability of the person,” the exclusionary rule operates to
require the suppression of evidence that is the fruit of
unlawful police conduct. Wong Sun v. United States, 371 U.S.
471, 484 (1963). However, evidence obtained during a search
conducted in good-faith reliance on then—binding Circuit
precedent is not subject to the exclusionary rule. United
States v. Wilks, __ F.3d __, 2011 WL 3199665, at *4 (4th Cir.
July 28, 2011) (citing United States v. Davis, 131 S. Ct. 2419,
2429 (2011)).
In New York v. Belton, 453 U.S. 454, 459-60 (1981),
the Supreme Court held that a police officer does not violate
the Fourth Amendment when he searches the passenger compartment
of an automobile subsequent to a lawful custodial arrest. In
2009, however, the Supreme Court in Arizona v. Gant, 129 S. Ct.
1710 (2009), clarified and limited Belton by holding that police
may conduct an automobile search incident to a lawful arrest
only when the arrestee is unsecured and within reaching distance
of the passenger compartment or when it is “reasonable to
believe evidence relevant to the crime of arrest might be found
in the vehicle.” 129 S. Ct. at 1719.
Here, the gun was seized pursuant to an unlawful
warrantless search of the vehicle under Gant; the search was
conducted after Badger was already detained and outside reaching
distance of the truck bed, and it was not reasonable to believe
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that evidence of Badger’s reckless driving — the offense for
which he was arrested — would be found in the truck.
Nonetheless, we hold that the district court did not err in
admitting the evidence. Police searched Badger’s vehicle on
March 29, 2006, almost three years before Gant was decided and
pursuant to our interpretation of Belton, which authorized an
automobile search incident to a recent occupant’s arrest. See
United States v. Milton, 52 F.3d 78, 80 (4th Cir. 1995). Thus,
we hold that the exclusionary rule does not apply to the
evidence seized during the arrest.
Badger also questions whether the district court erred
in admitting drug evidence because, he alleges, it was the fruit
of an unlawful seizure. Because Badger failed to move to
suppress the evidence, we review this claim as well for plain
error. See Wilkerson, 84 F.3d at 694. A person is not seized
for Fourth Amendment purposes until he is subject to physical
force or submits to the assertion of authority. California v.
Hodari D., 499 U.S. 621, 626 (1991). Badger did not submit to
the assertion of authority but fled, disposing of the drugs
along the way. Therefore, the drugs were not the fruit of a
seizure, and the district court did not err in admitting them.
See id. at 628-29; United States v. Stevenson, 396 F.3d 538, 546
(4th Cir. 2005).
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Finally, counsel questions whether Badger’s sentence
is reasonable. We review a sentence under an abuse of
discretion standard, assessing it for procedural and substantive
reasonableness. Gall v. United States, 552 U.S. 38, 51 (2008).
We have reviewed the record and conclude that the district court
did not abuse its discretion in sentencing Badger. Badger was
sentenced to the mandatory minimum terms of imprisonment under
the statutes of conviction. Accordingly, because the district
court had no discretion to impose a lower sentence, see United
States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005), Badger’s
sentence is per se reasonable. See United States v. Farrior,
535 F.3d 210, 224 (4th Cir. 2008).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Badger’s convictions and the oral
sentence imposed at the sentencing hearing. However, we remand
the case to the district court for correction of a clerical
omission in the criminal judgment. See Fed. R. Crim. P. 36.
The current judgment does not indicate that Badger is subject to
sentence pursuant to 21 U.S.C.A. § 841(b)(1)(A), as the district
court stated in open court at sentencing. Thus, we remand the
case to the district court with instructions to correct the
written judgment to reference 21 U.S.C.A. § 841(b)(1)(A).
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This court requires that counsel inform Badger, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Badger requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Badger. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED AND REMANDED
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