US v. Kelvin Badger

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:06-cr-01254-MBS-1 Copies to all parties and the district court. [998673943]. [08-4671]--[Edited 09/09/2011 by CT]

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Date Filed: 09/09/2011

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UNPUBLISHED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

Before MOTZ and
Circuit Judge.

SHEDD,

Circuit

Decided:

Judges,

and

September 9, 2011

HAMILTON,

Senior

Affirmed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

vehicle

on

in

admitting

Count

One

a

and,

firearm
in

seized

accordance

from

with

Badger’s

Anders

v.

California, 386 U.S. 738 (1967), asserting that there are no
meritorious
whether

the

grounds

for

district

appeal

court

on

Count

plainly

Two

erred

but

in

questioning

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.
address

whether

firearm.

the

We ordered supplemental briefing to

district

court

erred

in

admitting

the

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
2

sanctity

of

the

home

and

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inviolability of the person,” the exclusionary rule operates to
require

the

suppression

unlawful police conduct.
471, 484 (1963).
conducted
precedent

in
is

evidence

that

is

the

fruit

of

Wong Sun v. United States, 371 U.S.

However, evidence obtained during a search

good-faith
not

of

subject

reliance
to

the

on

then—binding

exclusionary

rule.

Circuit
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.”
Here,

129 S. Ct. at 1719.
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.
United States v. Milton, 52 F.3d 78, 80 (4th Cir. 1995).
we

hold

that

the

exclusionary

rule

does

not

apply

See
Thus,

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.
Hodari D., 499 U.S. 621, 626 (1991).
the

assertion

of

along the way.

authority

but

fled,

California v.

Badger did not submit to
disposing

of

the

drugs

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.
case

to

the

district

court

with

Thus, we remand the

instructions

to

correct

written judgment to reference 21 U.S.C.A. § 841(b)(1)(A).

5

the

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This
writing,

of

Date Filed: 09/09/2011

court

his

requires

right

to

that

petition

United States for further review.

Page: 6 of 6

counsel
the

inform

Supreme

Badger,

Court

of

in
the

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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