                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-4671


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KELVIN BERNARD BADGER, a/k/a K-Badge,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:06-cr-01254-MBS-1)


Submitted:   August 30, 2011                 Decided:   September 9, 2011


Before MOTZ and    SHEDD,   Circuit   Judges,     and   HAMILTON,   Senior
Circuit Judge.


Affirmed and remanded by unpublished per curiam opinion.


J. Christopher Mills, J. CHRISTOPHER MILLS, LLC, Columbia, South
Carolina, for Appellant.     William N. Nettles, United States
Attorney, John David Rowell, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kelvin         Bernard    Badger             appeals     his     life        sentence

following his jury conviction of one count of possession of a

firearm     by    a   convicted       felon,          in    violation        of     18     U.S.C.

§§ 922(g)(1), 924(a)(2), (e) (2006) (“Count One”); and one count

of possession with intent to distribute cocaine, marijuana, and

crack     cocaine,     in     violation             of     21   U.S.C.A.          § 841(a)(1),

(b)(1)(A), (C), (D) (West 1999 & Supp. 2011) (“Count Two”).                                    On

appeal, counsel filed a brief arguing that the district court

plainly    erred      in    admitting       a       firearm        seized    from        Badger’s

vehicle     on    Count      One     and,       in       accordance        with     Anders    v.

California, 386 U.S. 738 (1967), asserting that there are no

meritorious      grounds      for    appeal         on     Count    Two     but   questioning

whether    the    district      court       plainly         erred     in    admitting        drug

evidence and whether the district court imposed an unreasonable

sentence.        Badger was advised of his right to file a pro se

brief, but has not done so.             We ordered supplemental briefing to

address    whether      the    district         court        erred     in    admitting       the

firearm.    Finding no reversible error, we affirm.

            Badger first argues that the district court plainly

erred in admitting the firearm.                      As the parties acknowledge, we

review this unpreserved claim for plain error.                             United States v.

Wilkerson, 84 F.3d 692, 694 (4th Cir. 1996).                               In enforcing the

Fourth    Amendment’s        “guarantees            of    sanctity     of    the     home    and

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inviolability of the person,” the exclusionary rule operates to

require    the    suppression      of    evidence     that    is    the      fruit   of

unlawful police conduct.           Wong Sun v. United States, 371 U.S.

471, 484 (1963).          However, evidence obtained during a search

conducted    in     good-faith      reliance        on    then—binding         Circuit

precedent    is   not    subject    to   the   exclusionary         rule.       United

States v. Wilks, __ F.3d __, 2011 WL 3199665, at *4 (4th Cir.

July 28, 2011) (citing United States v. Davis, 131 S. Ct. 2419,

2429 (2011)).

            In New York v. Belton, 453 U.S. 454, 459-60 (1981),

the Supreme Court held that a police officer does not violate

the Fourth Amendment when he searches the passenger compartment

of an automobile subsequent to a lawful custodial arrest.                            In

2009, however, the Supreme Court in Arizona v. Gant, 129 S. Ct.

1710 (2009), clarified and limited Belton by holding that police

may conduct an automobile search incident to a lawful arrest

only when the arrestee is unsecured and within reaching distance

of   the   passenger     compartment      or   when      it   is   “reasonable       to

believe evidence relevant to the crime of arrest might be found

in the vehicle.”        129 S. Ct. at 1719.

            Here,   the    gun     was   seized     pursuant       to   an    unlawful

warrantless search of the vehicle under Gant; the search was

conducted after Badger was already detained and outside reaching

distance of the truck bed, and it was not reasonable to believe

                                          3
that evidence of Badger’s reckless driving — the offense for

which      he    was    arrested       —    would    be     found      in        the    truck.

Nonetheless, we hold that the district court did not err in

admitting the evidence.                Police searched Badger’s vehicle on

March 29, 2006, almost three years before Gant was decided and

pursuant to our interpretation of Belton, which authorized an

automobile search incident to a recent occupant’s arrest.                                     See

United States v. Milton, 52 F.3d 78, 80 (4th Cir. 1995).                                 Thus,

we    hold      that   the     exclusionary       rule    does   not    apply          to     the

evidence seized during the arrest.

                Badger also questions whether the district court erred

in admitting drug evidence because, he alleges, it was the fruit

of    an   unlawful         seizure.       Because   Badger      failed      to        move   to

suppress the evidence, we review this claim as well for plain

error.       See Wilkerson, 84 F.3d at 694.                 A person is not seized

for Fourth Amendment purposes until he is subject to physical

force or submits to the assertion of authority.                             California v.

Hodari D., 499 U.S. 621, 626 (1991).                      Badger did not submit to

the   assertion        of    authority     but    fled,   disposing         of    the    drugs

along the way.              Therefore, the drugs were not the fruit of a

seizure, and the district court did not err in admitting them.

See id. at 628-29; United States v. Stevenson, 396 F.3d 538, 546

(4th Cir. 2005).



                                              4
             Finally, counsel questions whether Badger’s sentence

is     reasonable.      We    review    a     sentence   under     an    abuse    of

discretion standard, assessing it for procedural and substantive

reasonableness.       Gall v. United States, 552 U.S. 38, 51 (2008).

We have reviewed the record and conclude that the district court

did not abuse its discretion in sentencing Badger.                      Badger was

sentenced to the mandatory minimum terms of imprisonment under

the statutes of conviction.            Accordingly, because the district

court had no discretion to impose a lower sentence, see United

States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005), Badger’s

sentence is per se reasonable.                See United States v. Farrior,

535 F.3d 210, 224 (4th Cir. 2008).

             In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.      We therefore affirm Badger’s convictions and the oral

sentence imposed at the sentencing hearing.               However, we remand

the case to the district court for correction of a clerical

omission in the criminal judgment.                See Fed. R. Crim. P. 36.

The current judgment does not indicate that Badger is subject to

sentence pursuant to 21 U.S.C.A. § 841(b)(1)(A), as the district

court stated in open court at sentencing.                Thus, we remand the

case    to   the   district   court    with    instructions   to    correct      the

written judgment to reference 21 U.S.C.A. § 841(b)(1)(A).



                                        5
           This    court    requires     that    counsel   inform      Badger,    in

writing,   of    his   right     to   petition   the   Supreme    Court    of    the

United States for further review.                If Badger requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.                 Counsel’s motion must

state that a copy thereof was served on Badger.                        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 AND REMANDED




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