United States v. Gordon , 264 F. App'x 274 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4158
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFFREY CLYDE GORDON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:06-cr-00201-HEH)
Submitted: January 7, 2008 Decided: February 12, 2008
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Elliott Bruce Bender, Richmond, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, N. G. Metcalf, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Clyde Gordon pled guilty to possession of a
firearm by a person convicted of a misdemeanor crime of domestic
violence, in violation of 18 U.S.C. § 922(g)(9) (2000). The
district court sentenced Gordon to twelve months and one day
imprisonment. Gordon expressly preserved the right to appeal the
denial of his motion to suppress evidence. Gordon now appeals his
conviction, arguing that two firearms found in his vehicle should
have been suppressed because his arrest and the search of his
vehicle violated the Fourth Amendment. Gordon further argues that
the charge against him should have been dismissed because his prior
conviction for domestic assault in the Brunswick County Juvenile
and Domestic Relations Court did not qualify as a predicate offense
under 18 U.S.C. § 922(g)(9). For the reasons that follow, we
affirm.
This court reviews factual findings underlying a district
court’s suppression determination for clear error and the district
court’s legal conclusions de novo. United States v. Wilson, 484
F.3d 267, 280 (4th Cir. 2007) (citing Ornelas v. United States, 517
U.S. 690, 699 (1996)). When the district court has denied a
suppression motion, this court reviews the evidence in the light
most favorable to the Government. United States v. Uzenski, 434
F.3d 690, 704 (4th Cir. 2006).
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In his first argument, Gordon contends his arrest was in
violation of the Fourth Amendment because the Virginia Code
authorizes only issuance of a summons, and not custodial arrest,
for trespass. Because this challenge was not asserted in the
district court, this court’s review is for plain error. See Fed.
R. Civ. P. 52(b); United States v. White, 405 F.3d 208, 215 (4th
Cir. 2005).
Gordon fails to establish any error. Whether or not
Deputy Stith’s arrest of Gordon contravened state law is irrelevant
to this court’s constitutional analysis. See United States v. Van
Metre, 150 F.3d 339, 347 (4th Cir. 1998). A violation of state law
respecting a defendant’s arrest does not necessarily constitute a
violation of the Fourth Amendment. See Fisher v. Wash. Metro. Area
Transit Auth., 690 F.2d 1133, 1138 (4th Cir. 1982)
(“[C]onstitutional standard is not affected by the fact that state
law may impose a more stringent arrest standard upon state police
officers.”). Gordon concedes Deputy Stith had probable cause to
suspect him of trespass. “If an officer has probable cause to
believe that an individual has committed even a very minor criminal
offense in his presence, he may, without violating the Fourth
Amendment, arrest the offender.” Atwater v. City of Lago Vista,
532 U.S. 318, 354 (2001).*
*
Gordon’s claim also fails because the Virginia Code
specifically authorizes custodial arrest for class one or two
misdemeanors “if any person is believed by the arresting officer to
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Next, Gordon challenges whether the warrantless search of
his vehicle by Deputy Stith constituted a Fourth Amendment
violation. Police officers may search the passenger compartment of
an automobile contemporaneously with the lawful custodial arrest of
the automobile’s occupant without the requirement of a separate
probable cause for the search. New York v. Belton, 453 U.S. 454,
460 (1981). Vehicle searches incident to the lawful arrest of the
“occupants” or “recent occupants” are also permissible, accounting
for situations in which the “officer does not make contact until
the person arrested has left the vehicle.” Thornton v. United
States, 541 U.S. 615, 621-24 (2004). “[W]hile an arrestee’s status
as a ‘recent occupant’ may turn on his temporal or spatial
relationship to the car at the time of the arrest and search, it
certainly does not turn on whether he was inside or outside the car
at the moment that the officer first initiated contact with him.”
Id. at 622.
The district found that Gordon was a “recent occupant” of
the vehicle within the meaning of Thornton at the time of his
arrest. This finding was not clearly erroneous. Deputy Stith was
responding to a domestic call in which the 911 operator reported
the suspect had left the property in a white sport utility vehicle
be likely to cause harm to himself or to another person.” See Va.
Code Ann. § 19.2-82. Stith testified that he believed Gordon posed
a safety risk to Andrea Ammerman, Gordon’s former girlfriend, and
himself.
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and was expected to return. Gordon returned to the property in the
white SUV only minutes before Deputy Stith arrived. The SUV was
just four or five feet from the porch on which Gordon was first
seen. Though several minutes passed as the officers conducted an
investigation, Gordon was arrested as soon as the available
information demonstrated he was trespassing. He was placed under
arrest while standing just two or three feet from the SUV, and
after having just retrieved a letter from the vehicle that formed
the basis for his arrest. The SUV was searched immediately upon
his arrest.
These facts demonstrate that Gordon was a recent occupant
of the SUV at the time of his lawful custodial arrest for trespass;
thus, Deputy Stith was entitled to search the entire passenger
compartment of that automobile as a contemporaneous search incident
to Gordon’s arrest. See Belton, 453 U.S. at 460; Thornton, 541
U.S. at 621-24. Accordingly, the district court did not err in
denying Gordon’s motion to suppress evidence and we affirm for that
reason.
Gordon’s final challenge relates to the district court’s
denial of his motion to dismiss. We conclude this claim fails. It
is well settled that the issue of whether a prior misdemeanor
conviction for domestic violence qualifies as a predicate offense
pursuant to 18 U.S.C. § 922(a)(33)(B)(i)(II) is a question of law
for the court to decide. See United States v. Bethurum, 343 F.3d
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712, 716 (5th Cir. 2003); United States v. Stanko, 491 F.3d 408,
412-13 (8th Cir. 2007) (citing cases).
Title 18 U.S.C. § 922(g)(9) provides that it shall be
unlawful for a person who has been convicted in any court of a
misdemeanor crime of domestic violence (“MCDV”) to possess a
firearm. However, pursuant to 18 U.S.C. § 921(a)(33)(B), a person
shall not be considered to have been convicted of misdemeanor
domestic violence unless, among other things, “the person, if he
was entitled to a jury trial in the MCDV case under the laws of the
jurisdiction in which the MCDV case was tried, . . . knowingly and
intelligently waived the right to have the [MCDV] case tried by a
jury, by guilty plea or otherwise.” United States v. Jennings, 323
F.3d 263, 265 (4th Cir. 2003) (internal citations and quotation
marks omitted); 18 U.S.C. § 921(a)(33)(B).
In January 2005, Gordon was convicted of domestic assault
in Juvenile and Domestic Relations (“J&DR”) Court. Under Virginia
law, a defendant appearing before a J&DR Court has no right to a
jury trial in that court. Such a right exists only when the
defendant exercises his right to appeal the judgment to a Virginia
Circuit Court. See Va. Sup. Ct. R. 3A:13(a). Gordon did not have
a right to a jury trial in J&DR court, and he did not appeal to a
circuit court thereby triggering his right to a jury trial.
Accordingly, the district court properly found Gordon was not
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entitled to a jury as a matter of law, and that his J&DR conviction
was a valid predicate under § 922(g)(9).
Accordingly, we affirm Gordon’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 argument would not aid the decisional process.
AFFIRMED
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