UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4930

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KENNETH DEWAYNE MCGAHA,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Anderson. Henry F. Floyd, District Judge.

(8:06-cr-01187-HFF)

Submitted: July 17, 2008 Decided: July 30, 2008

Before MICHAEL, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Johnny E. Watson, Sr., WATSON LAW FIRM, Columbia, South Carolina,

for Appellant. Kevin F. McDonald, Acting United States Attorney,

Leesa Washington, Assistant United States Attorney, Greenville,

South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

On November 14, 2006, Kenneth Dewayne McGaha was charged

with possession with intent to distribute 5 grams or more of

methamphetamine, 50 grams or more of a substance containing a

detectable amount of methamphetamine, and 5 grams or more of

cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000). McGaha

ultimately entered into a plea agreement with the Government. On

August 15, 2007, McGaha appeared for sentencing. The district

court determined McGaha was a career offender under U.S. Sentencing

Guidelines Manual § 4B1.1(a). McGaha had a base offense level of

34, which was reduced three levels pursuant to U.S.S.G. § 3E1.1,

and a criminal history category VI. The district court sentenced

McGaha to 188 months’ imprisonment, in conformity with his advisory

guidelines range. 

McGaha timely noted his appeal. On appeal, McGaha’s

counsel has filed a brief in which he argues that the officer

lacked probable cause to awaken McGaha as he slept in his vehicle

on the side of the road, and therefore, the drugs seized from

McGaha’s person and vehicle should have been suppressed. McGaha’s

counsel has also submitted an argument on McGaha’s behalf pursuant

to Anders v. California, 386 U.S. 738 (1967). According to McGaha,

he should not have been determined to be a career offender under

§ 4B1.1. We affirm the judgment of the district court. 
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Federal Rule of Criminal Procedure 12(b)(3)(C) requires

motions to suppress evidence be made before trial. United States

v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997). Failure to make a

motion to suppress before trial constitutes a waiver unless the

trial court grants relief from the waiver under Rule 12(e) for

cause shown. Fed. R. Crim. P. 12(e); United States v. Ricco, 52

F.3d 58, 62 (4th Cir. 1995). On March 14, 2007, McGaha filed a

motion to suppress any and all fruits of the warrantless search of

his person and vehicle. However, McGaha withdrew his motion after

signing his plea agreement with the Government. In his brief on

appeal, McGaha makes no attempt to demonstrate cause for failing to

preserve his Fourth Amendment claim; therefore, he has waived this

assignment of error. 

McGaha was also properly classified as a career offender

under U.S.S.G. § 4B1.1(a). According to U.S.S.G. § 4B1.1, a

defendant is a career offender if the defendant was 18 at the time

of the instant offense of conviction; the instant offense of

conviction was a felony crime of violence or a felony controlled

substance offense; and the defendant has at least two prior felony

convictions of either a crime of violence or a controlled substance

offense. U.S.S.G. § 4B1.1. At the time of the instant offense

McGaha was 37 years old and had three prior felony convictions for

crimes of violence. Accordingly, we affirm the judgment of the
*

We have considered the arguments raised in McGaha’s pro se

supplemental brief and find they are without merit. 

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district court.* 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