United States v. Smith

SUPPLEMENTAL MEMORANDUM **

After reviewing the concerns that the district court raised in a letter to the panel *616 pursuant to our General Order 12.10, we reconsider our disposition of this appeal. Originally, we noted that Appellant Kenneth Smith did not raise the principal issue underlying this appeal in the district court. We thus remanded to the district court for consideration of that issue, and declined the parties’ suggestion that we review the issue under a plain error standard. We now reconsider, apply the plain error standard, and affirm the district court.

Smith seeks review of an issue that he did not raise in the district court: whether California Vehicle Code Section 12801.5(e) renders his arrest unlawful. If the arrest was unlawful, the parties concede that the search incident to the arrest that led to the discovery of a firearm in Smith’s possession was also unlawful, and that Smith would not have pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922 (g)(1).

Section 12801.5(e) provides in relevant part that “a peace officer may not detain or arrest a person solely on the belief that the person is an unlicensed driver.” Cal. Veh.Code…