United States v. Smith , 18 F. App'x 201 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4534
JAMES PRESTON SMITH,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, Chief District Judge.
(CR-99-161)
Submitted: June 26, 2001
Decided: September 17, 2001
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William D. Turner, III, CRANDALL, PYLES, HAVILAND & TUR-
NER, L.L.P., Lewisburg, West Virginia, for Appellant. Rebecca A.
Betts, United States Attorney, John H. Tinney, Jr., Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. SMITH
OPINION
PER CURIAM:
Following his guilty plea to possession of a firearm by a felon, in
violation of 18 U.S.C.A. § 922(g)(1) (West 2000), James Preston
Smith was sentenced to 207 months in prison. Smith appeals, claim-
ing that the district court should have granted his motion to suppress
evidence seized from his person during a pat-down search, that the
statute under which he was convicted was unconstitutional, and that
his sentence should not have been enhanced under the Armed Career
Criminal Act based upon his prior burglary convictions. We find no
merit to his claims; consequently, we affirm.
State police officers arrested Smith at his cabin and then allowed
him to follow them to the police station in a separate vehicle. At the
police station, officers conducted a pat-down search and discovered
ammunition on Smith’s person. Smith contends on appeal that the dis-
trict court erred when it denied Smith’s motion to suppress the ammu-
nition on the ground that the search was incident to a lawful arrest.*
When a suspect is arrested, police officers may search him to
remove weapons that he could use to resist arrest or escape. Chimel
v. California, 395 U.S. 752, 762-63 (1969). In light of the fact that
Smith was outside the control of the officers between the time of his
initial arrest and his arrival at the police office where he was patted
down, during which time it is conceivable he could have obtained
weapons with which to resist arrest or escape, we find that the search
in this case was incident to the lawful arrest, despite the delay
between the initial arrest and the search. Cf. United States v. Johnson,
114 F.3d 435, 440-41 (4th Cir. 1997) (holding that warrantless search
*Smith also contends that the search of his cabin was not based upon
probable cause because the probable cause determination was premised
upon the ammunition found on his person pursuant to the search incident
to arrest. Thus, he claims that the search of his cabin was the "fruit" of
the illegal search of his person. Because we conclude that the district
court did not err by concluding that the search incident to arrest was law-
ful, we likewise conclude that the subsequent search of the cabin was not
the "fruit" of a prior unlawful search.
UNITED STATES v. SMITH 3
of suspect’s car at scene of arrest was justified as incident to lawful
arrest where search was conducted after the arrest while the suspect
was being transported to the police station).
Next, Smith argues that the federal felon in possession of a firearm
statute, 18 U.S.C.A. § 922(g)(1), violates his Second Amendment
right to bear arms. We previously have held that the Second Amend-
ment does not render § 922(g) unconstitutional because the Second
Amendment "only confers a collective right of keeping and bearing
arms which must bear a ‘reasonable relationship to the preservation
or efficiency of a well-regulated militia.’" United States v. Johnson,
497 F.2d 548, 550 (4th Cir. 1974) (per curiam) (quoting United States
v. Miller, 307 U.S. 174, 177-78 (1939)); see Love v. Pepersack, 47
F.3d 120, 124 (4th Cir. 1995); see also Lewis v. United States, 445
U.S. 55, 65 n.8 (1980) (approvingly citing case holding that § 922(g)
does not violate Second Amendment and noting that these legislative
restrictions do not "trench upon any constitutionally protected liber-
ties"); United States v. Napier, 233 F.3d 394, 402-04 (6th Cir. 2000)
(concluding that § 922(g) does not violate the Second Amendment,
which is a collective right); United States v. Chavez, 204 F.3d 1305,
1313 n.5 (11th Cir. 2000) (same). Smith has not demonstrated how
his conviction under § 922(g) interferes with the maintenance of a
well-regulated militia. Love, 47 F.3d at 124. Accordingly, we con-
clude that Smith’s conviction does not offend the Second Amend-
ment.
Smith also argues that Congress exceeded its authority under the
Commerce Clause in enacting § 922(g), relying upon United States v.
Lopez, 514 U.S. 549, 567-68 (1995) (invalidating 18 U.S.C.A.
§ 922(q)(1)(A) (West 2000)), and United States v. Morrison, 529 U.S.
598 (2000) (invalidating the Violence Against Women Act, 42
U.S.C.A. § 13981 ( West 1995)), in suggesting that § 924(g) is merely
a criminal statute that has nothing to do with interstate commerce.
However, unlike the statutes at issue in Lopez and Morrison, § 922(g)
contains a specific jurisdictional requirement that the possession be in
or affecting interstate commerce. 18 U.S.C.A. § 922(g). These juris-
dictional requirements led this Court to find that § 922(g) is constitu-
tionally sound. United States v. Nathan, 202 F.3d 230, 234 (4th Cir.),
cert. denied, 529 U.S. 1123 (2000); United States v. Bostic, 168 F.3d
718, 722-24 (4th Cir.), cert. denied, 527 U.S. 1029 (1999); United
4 UNITED STATES v. SMITH
States v. Wells, 98 F.3d 808, 810-11 (4th Cir. 1996). Moreover, this
Court recently held that Morrison does not affect its decisions regard-
ing the constitutionality of § 922(g). United States v. Gallimore, 247
F.3d 134, 138 (4th Cir. 2001). Given this Court’s position that neither
Lopez nor Morrison affects the constitutionality of § 922(g), we find
that Smith’s argument is without merit.
Finally, Smith asserts that, because five of his six prior burglary
convictions do not involve burglary of residential dwellings, he does
not qualify for an enhanced penalty under the Armed Career Criminal
Act, 18 U.S.C.A. § 924(e)(2)(B) (West 2000). In Tayor v. United
States, 495 U.S. 575 (1990), the Supreme Court held that for purposes
of the Armed Career Criminal Act, burglary includes two essential
elements: "[(1)] unlawful or unprivileged entry into, or remaining in,
a building or other structure, [(2)] with intent to commit a crime." Id.
at 598. Because all six of Smith’s burglary convictions meet this defi-
nition, we find that the district court properly applied the § 924(e)
enhancement.
For these reasons, we affirm Smith’s conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the Court and argu-
ment would not aid the decisional process.
AFFIRMED