UNPUBLISHED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Affirmed by unpublished per curiam opinion.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 & TURNER, 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Unpublished opinions are not binding precedent in this circuit.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). 
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, claiming 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 district court erred when it denied Smith’s motion to suppress the ammunition 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 lawful, we likewise conclude that the subsequent search of the cabin was not

the "fruit" of a prior unlawful search. 

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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 Amendment 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 liberties"); 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 conclude that Smith’s conviction does not offend the Second Amendment. 

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 jurisdictional requirements led this Court to find that § 922(g) is constitutionally 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

UNITED STATES v. SMITH 3
States v. Wells, 98 F.3d 808, 810-11 (4th Cir. 1996). Moreover, this

Court recently held that Morrison does not affect its decisions regarding 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 definition, 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 argument would not aid the decisional process.

AFFIRMED

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