United States v. McGaha , 288 F. App'x 107 ( 2008 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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
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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
*
We have considered the arguments raised in McGaha’s pro se
supplemental brief and find they are without merit.
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