                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4860


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SAMUEL LEWIS FENNELL, a/k/a Supreme,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief District
Judge. (7:13-cr-00059-GEC-1)


Submitted:   June 30, 2015                 Decided:   July 23, 2015


Before DUNCAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


John S. Davis, Daniel P. Watkins, WILLIAMS MULLEN, Richmond,
Virginia, for Appellant. Anthony P. Giorno, Acting United States
Attorney, Jean B. Hudson, Assistant United States Attorney,
Franklin Sacha, Appellate Intern, Charlottesville, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Samuel Lewis Fennell appeals his conviction for conspiracy to

distribute and possess with intent to distribute 5 kilograms or

more of cocaine and 280 grams or more of cocaine base, in violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2012).     Fennell argues

that the district court erred by denying his motion to suppress

the fruits of a search warrant obtained in state court that he

claimed was unsupported by probable cause.     We affirm.

     The district court found that the warrant affidavit was

sufficient to establish probable cause only when considered in

connection with the unrecorded testimony of the applying officer

and that, even if the warrant had been invalid, the good faith

exception to the exclusionary rule set forth in United States v.

Leon, 468 U.S. 897 (1984), applied.      Fennell argues that Fed. R.

Crim. P. 41(b) prohibited the district court from considering the

officer’s unrecorded testimony.       Because Fennell did not assert

this argument in his pretrial motion to suppress, it could be

deemed waived under Fed. R. Crim. P. 12(b)(3).     See United States

v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997) (holding that

defendant’s pretrial challenge to validity of search warrant did

not preserve on appeal challenge to execution of that warrant);

see also, e.g., United States v. Burnett, 773 F.3d 122, 130-31 (3d

Cir. 2014) (holding that new legal theory raised for first time on

appeal was waived), cert. denied, 135 S. Ct. 1722 (2015).     To the

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extent it may be considered at all, we review this argument for

plain error.     See United States v. Guzman, 739 F.3d 241, 246 n.8

(5th Cir. 2014) (recognizing that theory raised for first time on

appeal was waived but proceeding to conduct plain-error analysis).

To establish plain error, Fennell “must demonstrate that an error

occurred, that the error was plain, and that the error affected

his substantial rights.”        United States v. Heyer, 740 F.3d 284,

290 (4th Cir. 2014); see Henderson v. United States, 133 S. Ct.

1121, 1126-17 (2013) (discussing standard).

       “[T]he triggering condition for application of Rule 41 is not

a finding that the investigation was federal in nature but a

determination     that   the   proceeding   was   a    federal     proceeding.”

United States v. Claridy, 601 F.3d 276, 281 (4th Cir. 2010).                 In

Claridy, we held that Rule 41 did not apply where a state officer

who    was   federally   deputized   as   part    of   a   joint    task   force

investigating violations of both state and federal law obtained a

warrant from a state judge authorizing state officers to search

for evidence of violations of state narcotics laws.                Id. at 278,

283.    We also noted that, “[e]ven if the warrant was directed more

generally to any authorized officer, the fact that it commanded a

search for evidence of a state-law violation would indicate that

the warrant proceeding was a state proceeding, not one under

Federal Rule 41(b).”      Id. at 283.



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     Here, a state officer who was federally deputized as part of

a joint task force investigating violations of both state and

federal law obtained a warrant from a state judge that generally

directed any authorized officer to search for evidence of a state-

law violation.    This case precisely matches the scenario that we

said in Claridy “would indicate that the warrant proceeding was a

state    proceeding,   not     one    under   Federal   Rule    41(b).”        Id.

Accordingly, we conclude that the district court did not err by

declining to apply Rule 41. *

        We affirm the judgment of the district court.                 We dispense

with oral argument because the facts and legal contentions are

adequately    presented   in    the    materials   before      this    court   and

argument would not aid the decisional process.



                                                                         AFFIRMED




     * Fennell does not contest the district court’s holding that,
absent the application of Rule 41, the officer’s testimony provided
probable cause to support the warrant. Thus, we need not reach
Fennell’s challenge to the district court’s alternate holding
that, even if the warrant was invalid, the good faith exception to
the exclusionary rule applied.

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