United States of America v. Kenneth D. Smith, aka MCKINLEY SMITH

* Honorable James C. Hill, Eleventh Circuit Court of Appeals, sitting by
designation.
1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-2089
UNITED STATES OF AMERICA,
v.
KENNETH D. SMITH,
aka MCKINLEY SMITH,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 99-CR-00359
District Court: Hon. J. Curtis Joyner
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 5, 2002
Before Becker, Chief Judge, McKee, Hill,* Circuit Judges
(Filed: January 23, 2003)
OPINION OF THE COURT
McKee, Circuit Judge:
Kenneth Damone Smith appeals the district court’s denial of his suppression

-- 1 of 13 --

2
motion, and the sentence that the court imposed after a jury convicted him of illegal
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). For the reasons that follow,
we will affirm.
I.
Inasmuch as we write only for the parties who are familiar with the facts underlying
this appeal, we need only recite the factual background insofar as it is helpful to our brief
discussion.
On March 24, 1999, members of the Philadelphia Police Department conducted a
search of 1346 South 52nd Street pursuant to a search warrant. The affidavit supporting the
warrant stated that a shopkeeper named “Curtis Moses” had informed police that McKinley
Smith, (aka “Kevin Smith”) stole a semiautomatic Glock handgun from Moses’ store on
March 16, 1999. Moses stated that he knew Smith personally and could positively identify
him as the thief because Smith took the gun in Moses’ presence. Moses’ son informed
police that Smith lived on the same block as his father’s store. Thereafter, police
confirmed that a semiautomatic Glock handgun was registered to Moses, and they also
learned that Smith was a convicted felon with 12 prior arrests including robbery, aggravated
assault and witness intimidation.
Based upon this information, a bail commissioner issued a search warrant for
Smith’s residence naming him as the “owner, occupant or possessor” of the house to be
searched. The warrant authorized police to seize the Glock handgun as well as any other
ammunition, firearms, and any and all other fruits or instrumentalities of the crime. On

-- 2 of 13 --

3
March 24, 1999, hours before the search was to be executed, William Sample, a
homeowner, reported the burglary of his home at 1332 South 52nd Street. Nine firearms
were reportedly taken during that burglary including two rifles.
Subsequently, on March 24, 1999, at approximately 9:15 pm, police officers
executed the search warrant they had obtained for Smith’s residence at 1346 South 52nd
Street. During their search of that residence, they found two rifles hidden under a mattress.
Police later confirmed that two rifles had been stolen from Sample’s home earlier that day
during the aforementioned burglary. Based upon the evidence discovered during the search,
Smith was arrested and charged with being a felon in possession of a firearm in violation of
18 U.S.C. 922(g)(1).
Prior to trial, Smith moved to suppress the evidence that police had seized. He
claimed that inasmuch as the warrant only authorized the seizure of the Glock handgun and
“any other ammunition or firearms” and “any and all fruits of crime,” the rifles were beyond
the scope of the warrant and not covered by the supporting affidavit which only referred to
the Glock taken from Moses. Accordingly, argued Smith, there was no probable cause to
seize any items relating to the burglary of Sample’s residence. The district court disagreed.
The court concluded that the warrant was supported by probable cause, and it
properly authorized police to seize any and all weapons found in Smith’s residence.
Thereafter, a jury convicted Smith of being a convicted felon in possession of a firearm,
and he was sentenced to the maximum period of incarceration of 120 months.
II.

-- 3 of 13 --

4
Smith first argues that he search warrant was not supported by probable cause
because it referred only to the robbery of Curtis Moses’ store on March 16, 1999 and did
not refer to the March 24, 1999 burglary of Sample’s residence. He also argues that the
search warrant was overbroad to the extent that it authorized a search for “any ammunition
and firearms” or “fruits of crime.” The government argues that probable cause did exist and
that, even if it did not, the evidence was still admissible under both the “plain view” and
“good faith” exceptions to the exclusionary rule.
A.
Our review of the district court’s determination of probable cause is limited to
“‘whether, [given all the circumstances set forth in the supporting affidavit] there is a fair
probability that contraband or evidence of a crime will be found in a particular place.’”
United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993) (omission in original)
(quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). In
conducting our review, the magistrate’s underlying finding of probable cause is entitled to
deference. See, United States v. Conley, 4 F.3d 1200 (3d Cir. 1993) (holding that a
reviewing court’s task is limited to determining whether the magistrate had a substantial
basis for concluding that probable cause existed).
Here, given Moses’ familiarity with Smith, the record clearly supports the initial
finding of probable cause. Moses was able to identify Smith as the one who robbed his
store and stole a Glock handgun. Police independently confirmed that such a gun was
registered to Moses, and that Smith, the identified perpetrator, lived very near Moses’

-- 4 of 13 --

1 Smith does not raise a “staleness” argument.
2 See Coolidge v. New Hampshire, 403 U.S. 443 (1971) (holding that the Fourth
Amendment requires that a warrant describe with particularity the place to be searched and
the persons or things to be seized).
5
store. Police also learned that Smith had a substantial criminal record.1 Accordingly,
police had probable cause to enter Smith’s residence at 1346 South 52nd Street, and
conduct a search pursuant to the resulting warrant. Therefore, the entry and search are not
affected by the fact that police discovered rifles stolen from Sample while searching for
Moses’ gun. The officers knew that Smith was a convicted felon and therefore knew that he
could not lawfully possess the weapons they found. Accordingly, they knew that the
weapons constituted evidence of a crime and contraband, and were therefore within the
scope of the authority conferred by the warrant in seizing the rifles.
B.
Smith also argues that the seizure was invalid because the warrant was overbroad and
gave police free reign to search his residence. Although we agree that the warrant appears
to confer unfettered authority by authorizing seizure of “any and all other ammunition and
firearms” and “any fruits of the crime,” we do not agree that the warrant was “overbroad.”2
See United States v. Campbell, 256 F.3d 381, 389 (6th Cir.) (2001). The appellant in
Campbell was also charged with illegal possession of a firearm in violation of 18 U.S.C.A.
§922(g). Police searched Campbell’s residence pursuant to a warrant that authorized them
to search for a list of items including “any and all firearms.” During the course of the
search police found stolen firearms, including two weapons taken during the burglary that

-- 5 of 13 --

3 Here, Detective McDermott, did know that two firearms fitting the description of
the items seized had been taken from Sample’s house during the March 24, 1999 burglary.
6
caused police to apply for the warrant. The Court of Appeals for the Sixth Circuit upheld
the district court’s denial of Campbell’s suppression motion. The court reasoned that
police knew that Campbell was a convicted felon, and any weapons found in his possession
would therefore constitute evidence of a violation of 18 U.S.C. §922(g) Id. at 385-86. That
is precisely the situation here.
Moreover, as stated above, since the warrant was valid, police could properly seize
the disputed evidence because it was in plain view of the officers. United States v. Scarfo,
685 F.2d 842, 845 (3d Cir. 1993). The officers were legally at the location of the
discovery, and the incriminating nature of the evidence was obvious because they knew he
could not legally possess firearms. Therefore, the rifles were admissible even if their
discovery was not inadvertent. Horton v. California, 496 U.S. 128, 136-37 (1990).3
In addition, even assuming arguendo, that the warrant was overbroad, the evidence
would also be admissible under the good faith exception to the warrant requirement as set
forth in United States v. Leon, 468 U.S. 897 (1984). See United States v. Kepner, 843
F.2d 755, 763 (3d Cir. 1988). Accordingly, the district court did not err in denying his
motion to suppress the physical evidence.
Smith’s challenge to his sentence is also without merit.
II.
Smith first argues that the district court erred in applying a three-level upward

-- 6 of 13 --

4 Although Smith submitted a letter to the pre-sentence investigator challenging
portions of the pre-sentence report, his objections were confined to paragraphs 24, 25, and
26 of the report which stated the legal basis that led to the investigator’s recommendation
for an adjustment for relevant conduct. Smith did not raise any objection to the factual findings
regarding the number of firearms as set forth in the report at paragraphs 10, 11, and 12. App. 384.
5 The following exchange occurred between defense consel and the court at
sentencing:
MR. HOOF: Your Honor, relevant conduct would be a stretch
in this matter. The jury only heard testimony regarding two
guns that were under his bed.
THE COURT: We’re not talking about what the jury
heard, because the government presented evidence to the grand
jury that only went for those two possessions–two weapons
that your client was ultimately indicted on. All right? They
only presented evidence in reference to those. But there was
some testimony or indication that the victim’s guns were taken
7
adjustment pursuant to USSG §2K2.1(b)(1). He objects to the pre-sentence report’s
conclusion that his offense involved ten firearms because he was only convicted of
possessing two of the firearms seized from 1346 South 52nd Street and one taken from
Moses’ store. He claims that there was insufficient evidence to attribute any other firearms
to him, and that the district court therefore erred in overruling his objection. We review
this claim for plain error because Smith did not object to the district court’s conclusions of
fact. United States v. Stewart, 283 F.3d 579, 581 (3d Cir. 2002).4
Defense counsel’s only objection to the three-level adjustment was based upon the
fact “[Smith] was not charged with either the robbery or the burglary. It was on this basis
that Smith’s counsel urged the district court to ignore the pre-sentence report’s
recommendation to enhance Smith’s sentence based upon relevant conduct.5 The record

-- 7 of 13 --

out of his place. Among these guns were the guns that your
client had. All right?
The totality of the guns that were taken is what this
court has a duty and a responsibility to consider under
relevant conduct. Now, what do you say in reference to
relevant conduct that ties your client or disassociates him from
the victim of this offense.
MR. HOOF: My client was never charged with those
other guns. There was another individual who came to court
and testified in court that was charged with those guns, and pled
guilty to those guns. So a conviction did result from the
burglary or the theft of those weapons, of those guns.
App. 395-96 (emphasis added).
6 MR. HOOF: Your Honor, just one more point. Your Honor,
there was never anything before the court regarding any
ownership and nonpermission of the guns. No owner of any
guns ever came before the court and testified. There were only
these allegations and convictions about somebody else.
My client was never charged with any burglary, he was never charged
with any theft.
THE COURT: We’re not talking about charging counsel. We’re
talking about relevant conduct. It’s a different standard altogether for the
purposes of sentencing this afternoon.
It’s by a preponderance of the evidence. There’s clear evidence before
this court that your client was involved in the taking of these firearms from
the gentleman’s home, and two of those weapons were found in his bedroom
in this house. There were some found outside in the backyard, and the
distance between the homes was relatively close.
His nephew was involved in the burglary with him, the entry into the
home and the taking of these weapons. This Court finds that’s relevant
conduct..
In reference to the taking of other firearms...[h]e reached behind the
counter and he took the shopkeeper’s Glock firearm, and then ran out of the
store.
8
shows that the district court gave Smith’s counsel several opportunities to raise a factual
objection. However, no such objection was raised. 6

-- 8 of 13 --

The shopkeeper wisely decided not to give chase because he had a
loaded weapon in your clients hand. That’s what led ultimately to the search
and seizure of your client’s bedroom and the finding of the guns that
belonged to the victim of these other firearms being taken.
That is relevant conduct, facts that this court should take into
consideration in imposing a sentence on your client, I don’t thing that adds
anything more to this case, and I don’t think that it takes anything away from
this case. Your client was involved in the crime that he was convicted of, a
felon in possession of a number of firearms. (App. 398-400).
7 We do not suggest that Smith’s argument would be meritorious if defense counsel had
properly raised it.
9
We repeatedly have held that under plain error review, “‘before an appellate court
can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that
affects substantial rights; if all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.’” United States v.
Campbell, 295 F.3d 398, 404 (3d Cir. 2002) (quoting Johnson v. United States, 520 U.S.
461, 466-67, 117 S.Ct. 1544 (1997) (internal quotations and citations omitted)). In the
absence of any relevant objection to the pre-sentence report, and finding no error on the
part of the district court in relying on the factual determinations in the pre-sentence report,
we hold that there was “plain error” affecting defendant’s substantial rights. Therefore, we
will affirm the court’s application of a three level upward adjustment to the appellant’s
sentence.7
III.
Smith’s final contention is that the district court erred in failing to address an

-- 9 of 13 --

10
argument he raised during the sentencing hearing that “might be construed as a motion for
downward departure.” (Appellant’s Br. At 29).
Smith argues that his prior conviction for simple assault constituted a misdemeanor
under state law, and therefore, should not be treated as a predicate felony conviction for a
crime of violence under U.S.S.G. §2K2.1(a)(2). He maintains that the district court should
have construed this objection as a motion for downward departure. Smith presents this
argument now by arguing that his counsel “continued in a vein which [ended] in a request for
the exercise of the district court’s discretion.” Appellant’s Br. at 29. However, since the
application of §2K2.1(a)(2) is not subject to discretion, Smith contends that the district
court erred in failing to recognize what “appears to have been” a request for a downward
departure. He suggests that this is bolstered by the fact that his final offense level in
combination with his criminal history category of IV resulted in a guideline range which
exceeded the statutory maximum for his offense.
Smith bases this argument on United States v. Shoupe, 35 F.3d 835, 836 (3d Cir.
1994), wherein we held that where a defendant’s career offender status leads to an
enhancement of the defendant’s criminal history and base offense level, a sentencing court
may depart from both the criminal history category and the applicable offense level where
they over-represent his criminal history and likelihood of recidivism. Smith concludes that
because the district court sentenced the him “without ruling on his request for a downward
departure,” we are deprived of “knowing why the district court denied the requested
departure.” United States v. Powell, 269 F.2d 175, 179 (3d Cir. 2001).

-- 10 of 13 --

8 Moreover, it is obvious from the factual background of this case that substantial
evidence linked him to the burglary of the Sample residence, and the theft of the Glock
from Moses’ store. Therefore, there is no merit to the suggestion that Smith’s criminal
record was overstated.
11
However, although district courts should do their best to construe all discernable
motions for downward departure, neither Powell or Shoupe requires clairvoyance on the
part of district courts. The record here does not allow us to conclude that the district court
could fairly interpret defense counsel’s argument about Smith’s misdemeanor conviction as
a motion for departure. Rather, Smith was making a legal argument about whether his prior
misdemeanor conviction should be treated as a felony for purposes of determining his
criminal history level under the guidelines. The district court appropriately rejected this
argument because the offense exposed Smith to more than one year in prison. See, United
Stated v. Dorsey, 174 F.3d 331, 332 (3d Cir. 1999).8
IV.
Accordingly, for all the reasons set forth, we will affirm the district court’s
judgment of conviction and sentence.
TO THE CLERK:
Please file the foregoing not precedential opinion.
By the court:
/s/ Theordore A. McKee

-- 11 of 13 --

12
Circuit Judge

-- 12 of 13 --

13

-- 13 of 13 --