United States v. McKenzie , 96 F. App'x 164 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4661
BRADLEY EDWARD MCKENZIE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
James P. Jones, District Judge.
(CR-02-130)
Submitted: April 30, 2004
Decided: May 19, 2004
Before WILLIAMS and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
B. L. Conway, II, CONWAY LAW FIRM, P.L.L.C., Abingdon, Vir-
ginia, for Appellant. John L. Brownlee, United States Attorney, R.
Lucas Hobbs, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.
2 UNITED STATES v. MCKENZIE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Following the district court’s denial of his motion to suppress evi-
dence, Bradley McKenzie pleaded guilty to one count of possession
of a firearm by a convicted felon, 18 U.S.C. § 922(g) (2000). McKen-
zie was sentenced as an armed career criminal to 180 months in
prison. He now appeals, raising three issues. We affirm.
I
On September 2, 2002, authorities in Dickenson County, Virginia,
received two separate requests that they check on the welfare of
McKenzie’s stepdaughter. Scott Stanley, an investigator with the
Dickenson County Sheriff’s Department, and Captain Jeff Green went
to the McKenzie residence to perform a routine "welfare check." They
were in street clothes, their guns were concealed, and they were wear-
ing badges.
Stanley testified at the suppression hearing that McKenzie invited
them inside the residence and granted their request to look for the
stepdaughter. Based on McKenzie’s demeanor and discussion with
them, neither Stanley nor Green had any reason to think that McKen-
zie was incapable of giving valid consent to a search. Stanley and
Green observed a marijuana bong when they entered the residence.
As he walked through the home, Stanley saw guns in the bedroom of
McKenzie’s stepson. In the master bedroom, Stanley also saw mari-
juana on a dresser and a handgun and marijuana in a clear plastic bag
under the bed.
Stanley and Green left the residence but returned upon discovering
that McKenzie was a convicted felon. When they returned, the fire-
arms had been removed from the residence, but the stepson informed
the men where the guns were. The officers seized the firearms.
UNITED STATES v. MCKENZIE 3
The district court denied McKenzie’s motion to suppress evidence,
including the firearms, seized from the residence on September 2. The
court found that the officers were at the residence for a legitimate pur-
pose, credited the testimony of Stanley and Green over that of Mc-
Kenzie’s wife, who denied that McKenzie invited them into the resi-
dence, and found that McKenzie’s consent was valid and voluntary.
McKenzie then entered his guilty plea. Because he had three prior
felony convictions for taking indecent liberties with a minor, McKen-
zie was found to be an armed career criminal, 18 U.S.C. § 924(e)
(2000); U.S. Sentencing Guidelines Manual § 4B1.4 (2002). He was
sentenced to 180 months in prison.
II
McKenzie first claims that the district court should have granted
his suppression motion. "In considering the district court’s decision
on a motion to suppress, [this Court reviews] the court’s legal conclu-
sions de novo and its factual findings for clear error, and [the Court
views] the evidence in the light most favorable to the prevailing party
below." United States v. Jones, 356 F.3d 529, 533 (4th Cir.), cert.
denied, ___ U.S. ___, 72 USLW 3599 (U.S. Mar. 22, 2004) (No. 03-
8850).
In light of Stanley’s and Green’s testimony, the district court did
not clearly err in crediting their testimony over that of Mrs. McKenzie
and concluding that McKenzie consented to a search of the residence.
Further, Green’s and Stanley’s testimony establishes that the scope of
the search did not exceed the consent given. See id. at 533. We con-
clude that the evidence was seized pursuant to a valid consent search.
III
McKenzie next challenges his treatment as an armed career crimi-
nal. The presentence report states that on June 9, 1992, McKenzie was
convicted on three counts of taking indecent liberties with a child.
The offenses occurred between November 1991 and February 1992,
when McKenzie was employed as a van driver for the Dickenson
County Community Services Board. The convictions were for
4 UNITED STATES v. MCKENZIE
offenses that occurred on different occasions, and each offense
involved a different victim. Taking indecent liberties with a child, in
violation of Va. Code Ann. § 18.2-370.1 (Michie 1996 & Supp.
2003), qualifies as a violent felony under our decision in United
States v. Pierce, 278 F.3d 282 (4th Cir. 2002), because the statute,
like that at issue in Pierce, "protects against the risk of physical injury
and its violation therefore presents a serious risk of physical injury."
Id. at 289. Given McKenzie’s three separate convictions for violent
felonies, he was correctly sentenced as an armed career criminal.
IV
Finally, we reject McKenzie’s various claims that § 924(e) is
unconstitutional. We have previously held that "a fifteen-year sen-
tence under [§ 924(e)] . . . is neither disproportionate to the offense
nor cruel and unusual punishment, and thus does not violate the
Eighth Amendment." United States v. Presley, 52 F.3d 64, 68 (4th
Cir. 1995). Similarly, the armed career criminal sentencing enhance-
ment does not violate the rule of Apprendi v. New Jersey, 530 U.S.
466 (2000). United States v. Sterling, 283 F.3d 216, 219-20 (4th Cir.
2002). Finally, McKenzie’s offense was not atypical and does not
remove his offense from the heartland of offenses generally covered
by the applicable guideline. See United States v. Scheetz, 293 F.3d
175, 190 (4th Cir. 2002).
V
We accordingly affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED