United States v. Felix Okafor , 602 F. App'x 108 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4324
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FELIX A. OKAFOR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:12-cr-00059-H-1)
Submitted: February 24, 2015 Decided: March 2, 2015
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert H. Hale, Jr., ROBERT H. HALE, JR. & ASSOCIATES, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A twenty-five count superseding indictment charged Felix A.
Okafor with various drug and firearm offenses. A jury convicted
Okafor on all counts, including eleven counts of possessing a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c) (2012). The district court imposed a
sixty-month mandatory minimum sentence on the first § 924(c)
conviction and 300-month consecutive mandatory minimum sentences
on each of the other ten § 924(c) convictions. On appeal,
Okafor argues that his § 924(c) convictions should be reversed
because the district court erred when it admitted expert
testimony by a detective and when it permitted the detective to
bolster the credibility of a confidential informant (“CI”)
before Okafor challenged the CI’s credibility. Okafor further
contends that the stacking of eleven mandatory minimum sentences
constitutes cruel and unusual punishment under the Eighth
Amendment. 1 Finding no reversible error, we affirm.
1
Okafor has filed a motion for leave to file a pro se
supplemental brief, along with that brief. Because Okafor is
represented by counsel who has filed a merits brief, Okafor is
not entitled to file a pro se supplemental brief, and we
therefore deny his motion. See United States v. Penniegraft,
641 F.3d 566, 569 n.1 (4th Cir. 2011) (denying motion to file
pro se supplemental brief because defendant was represented by
counsel).
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I.
Because Okafor did not object to the detective’s expert
testimony or to the testimony that allegedly bolstered the CI’s
credibility, we review these evidentiary claims for plain error.
United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006).
Under the plain error standard, Okafor must demonstrate that (1)
there was an error; (2) that was plain; and (3) that affected
his substantial rights. United States v. Olano, 507 U.S. 725,
732 (1993). Furthermore, even if Okafor shows that the district
court plainly erred, we will not exercise our discretion to
correct the error unless it “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. at
732, 735-36 (internal quotation marks and brackets omitted); see
also Fed. R. Crim. P. 52(b).
Where the Government presents “overwhelming evidence” of a
defendant’s guilt independent of the challenged evidence, an
alleged error does not “seriously affect the fairness,
integrity, or public reputation of judicial proceedings,” and
reversing the defendant’s conviction(s) “would do far more to
damage the public’s perception of judicial proceedings than
leaving the conviction in place.” United States v. Williamson,
706 F.3d 405, 413 (4th Cir. 2013). This court has “frequently
disposed of a plain error issue by analyzing either the third or
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fourth prong of Olano after assuming, without deciding, that
there was an error and that it was plain.” United States v.
Jackson, 327 F.3d 273, 304 (4th Cir. 2003). We follow that
well-trodden path here.
A defendant’s possession of a firearm during a drug
transaction constitutes a violation of 18 U.S.C. § 924(c) where
possession of a firearm serves to protect the defendant against
the theft of drugs and profits from the drug transaction or to
enhance the collection of his profits. United States v. Pineda,
770 F.3d 313, 317 (4th Cir. 2014). Here, the Government
presented overwhelming video evidence demonstrating that Okafor
possessed a firearm during the drug transactions. During each
of the transactions, the videos show a white towel hanging out
of Okafor’s right pants pocket, usually with the butt end of the
handgun sticking out of the towel or the outline of the firearm
pushing against Okafor’s pants pocket. Furthermore, Okafor told
the CI that the object wrapped in the white towel was a firearm,
and one of the videos shows Okafor removing the firearm and
displaying it to the CI. Finally, a search of Okafor’s person
resulted in the recovery of a Glock Model 22, .40 caliber pistol
from his right front pants pocket.
Accordingly, the video evidence overwhelmingly demonstrates
that Okafor possessed a firearm during the drug transactions and
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that his possession of the firearm was in furtherance of the
transactions. Okafor has not established that any error in
admitting the detective’s testimony affected his substantial
rights or seriously affected the fairness or reputation of
judicial proceedings.
II.
We review challenges to sentences on Eighth Amendment
grounds de novo. United States v. Malloy, 568 F.3d 166, 180
(4th Cir. 2009). Where a defendant commits multiple violations
of 18 U.S.C. § 924(c), the mandatory minimum sentence for each
violation stacks and the sentences must be served consecutively.
United States v. Khan, 461 F.3d 477, 494-95 (4th Cir. 2006).
“‘Severe, mandatory penalties may be cruel, but they are not
unusual in the constitutional sense, having been employed in
various forms throughout our Nation’s history.’” Id. at 495(quoting Harmelin v. Michigan, 501 U.S. 957, 994 (1991)).
Accordingly, while the stacking of mandatory minimum sentences
under § 924(c) produced a “lengthy” sentence, it “do[es] not
constitute cruel and unusual punishment pursuant to the Eighth
Amendment.” Id.
III.
Accordingly, we affirm Okafor’s convictions and sentence.
We deny Okafor’s motion for leave to file a pro se supplemental
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brief. 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
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