                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 07-4158



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


JEFFREY CLYDE GORDON,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:06-cr-00201-HEH)


Submitted:   January 7, 2008              Decided:   February 12, 2008


Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Elliott Bruce Bender, Richmond, Virginia, for Appellant.     Chuck
Rosenberg, United States Attorney, N. G. Metcalf, Assistant United
States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Jeffrey Clyde Gordon pled guilty to possession of a

firearm by a person convicted of a misdemeanor crime of domestic

violence, in violation of 18 U.S.C. § 922(g)(9) (2000).            The

district court sentenced Gordon to twelve months and one day

imprisonment.   Gordon expressly preserved the right to appeal the

denial of his motion to suppress evidence.      Gordon now appeals his

conviction, arguing that two firearms found in his vehicle should

have been suppressed because his arrest and the search of his

vehicle violated the Fourth Amendment.      Gordon further argues that

the charge against him should have been dismissed because his prior

conviction for domestic assault in the Brunswick County Juvenile

and Domestic Relations Court did not qualify as a predicate offense

under 18 U.S.C. § 922(g)(9).       For the reasons that follow, we

affirm.

          This court reviews factual findings underlying a district

court’s suppression determination for clear error and the district

court’s legal conclusions de novo.       United States v. Wilson, 484

F.3d 267, 280 (4th Cir. 2007) (citing Ornelas v. United States, 517

U.S. 690, 699 (1996)).     When the district court has denied a

suppression motion, this court reviews the evidence in the light

most favorable to the Government.        United States v. Uzenski, 434

F.3d 690, 704 (4th Cir. 2006).




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            In his first argument, Gordon contends his arrest was in

violation   of   the   Fourth   Amendment    because   the    Virginia   Code

authorizes only issuance of a summons, and not custodial arrest,

for trespass.        Because this challenge was not asserted in the

district court, this court’s review is for plain error.             See Fed.

R. Civ. P. 52(b); United States v. White, 405 F.3d 208, 215 (4th

Cir. 2005).

            Gordon fails to establish any error.              Whether or not

Deputy Stith’s arrest of Gordon contravened state law is irrelevant

to this court’s constitutional analysis.        See United States v. Van

Metre, 150 F.3d 339, 347 (4th Cir. 1998).       A violation of state law

respecting a defendant’s arrest does not necessarily constitute a

violation of the Fourth Amendment. See Fisher v. Wash. Metro. Area

Transit     Auth.,     690   F.2d    1133,    1138     (4th     Cir.     1982)

(“[C]onstitutional standard is not affected by the fact that state

law may impose a more stringent arrest standard upon state police

officers.”).     Gordon concedes Deputy Stith had probable cause to

suspect him of trespass.        “If an officer has probable cause to

believe that an individual has committed even a very minor criminal

offense in his presence, he may, without violating the Fourth

Amendment, arrest the offender.”        Atwater v. City of Lago Vista,

532 U.S. 318, 354 (2001).*


     *
      Gordon’s claim also fails because the Virginia Code
specifically authorizes custodial arrest for class one or two
misdemeanors “if any person is believed by the arresting officer to

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               Next, Gordon challenges whether the warrantless search of

his       vehicle    by   Deputy   Stith    constituted      a    Fourth    Amendment

violation. Police officers may search the passenger compartment of

an automobile contemporaneously with the lawful custodial arrest of

the automobile’s occupant without the requirement of a separate

probable cause for the search.              New York v. Belton, 453 U.S. 454,

460 (1981).         Vehicle searches incident to the lawful arrest of the

“occupants” or “recent occupants” are also permissible, accounting

for situations in which the “officer does not make contact until

the person arrested has left the vehicle.”                       Thornton v. United

States, 541 U.S. 615, 621-24 (2004). “[W]hile an arrestee’s status

as    a    ‘recent    occupant’    may     turn   on   his   temporal      or   spatial

relationship to the car at the time of the arrest and search, it

certainly does not turn on whether he was inside or outside the car

at the moment that the officer first initiated contact with him.”

Id. at 622.

               The district found that Gordon was a “recent occupant” of

the vehicle within the meaning of Thornton at the time of his

arrest.      This finding was not clearly erroneous.               Deputy Stith was

responding to a domestic call in which the 911 operator reported

the suspect had left the property in a white sport utility vehicle



be likely to cause harm to himself or to another person.” See Va.
Code Ann. § 19.2-82. Stith testified that he believed Gordon posed
a safety risk to Andrea Ammerman, Gordon’s former girlfriend, and
himself.

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and was expected to return.       Gordon returned to the property in the

white SUV only minutes before Deputy Stith arrived.              The SUV was

just four or five feet from the porch on which Gordon was first

seen.     Though several minutes passed as the officers conducted an

investigation,    Gordon    was   arrested   as   soon    as   the   available

information demonstrated he was trespassing.             He was placed under

arrest while standing just two or three feet from the SUV, and

after having just retrieved a letter from the vehicle that formed

the basis for his arrest.         The SUV was searched immediately upon

his arrest.

             These facts demonstrate that Gordon was a recent occupant

of the SUV at the time of his lawful custodial arrest for trespass;

thus, Deputy Stith was entitled to search the entire passenger

compartment of that automobile as a contemporaneous search incident

to Gordon’s arrest.        See Belton, 453 U.S. at 460; Thornton, 541

U.S. at 621-24.      Accordingly, the district court did not err in

denying Gordon’s motion to suppress evidence and we affirm for that

reason.

            Gordon’s final challenge relates to the district court’s

denial of his motion to dismiss.       We conclude this claim fails.        It

is well settled that the issue of whether a prior misdemeanor

conviction for domestic violence qualifies as a predicate offense

pursuant to 18 U.S.C. § 922(a)(33)(B)(i)(II) is a question of law

for the court to decide.       See United States v. Bethurum, 343 F.3d


                                    - 5 -
712, 716 (5th Cir. 2003); United States v. Stanko, 491 F.3d 408,

412-13 (8th Cir. 2007) (citing cases).

            Title 18 U.S.C. § 922(g)(9) provides that it shall be

unlawful for a person who has been convicted in any court of a

misdemeanor crime of domestic violence (“MCDV”) to possess a

firearm.    However, pursuant to 18 U.S.C. § 921(a)(33)(B), a person

shall not be considered to have been convicted of misdemeanor

domestic violence unless, among other things, “the person, if he

was entitled to a jury trial in the MCDV case under the laws of the

jurisdiction in which the MCDV case was tried, . . . knowingly and

intelligently waived the right to have the [MCDV] case tried by a

jury, by guilty plea or otherwise.” United States v. Jennings, 323

F.3d 263, 265 (4th Cir. 2003) (internal citations and quotation

marks omitted); 18 U.S.C. § 921(a)(33)(B).

            In January 2005, Gordon was convicted of domestic assault

in Juvenile and Domestic Relations (“J&DR”) Court.            Under Virginia

law, a defendant appearing before a J&DR Court has no right to a

jury trial in that court.         Such a right exists only when the

defendant exercises his right to appeal the judgment to a Virginia

Circuit Court.     See Va. Sup. Ct. R. 3A:13(a).         Gordon did not have

a right to a jury trial in J&DR court, and he did not appeal to a

circuit    court   thereby   triggering    his   right   to   a   jury   trial.

Accordingly, the district court properly found Gordon was not




                                   - 6 -
entitled to a jury as a matter of law, and that his J&DR conviction

was a valid predicate under § 922(g)(9).

           Accordingly, we affirm Gordon’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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