United States v. Oaks , 185 F. App'x 298 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4113
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY ALLEN OAKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-02-89)
Submitted: June 5, 2006 Decided: July 7, 2006
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina;
Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Thomas R. Ascik, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gregory Allen Oaks was convicted by a jury of possession
with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (2000); possession of a firearm in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c) (2000); and
possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g) (2000). At sentencing, the district court found Oaks was
an armed career criminal. See 18 U.S.C. § 924(e) (2000). The
court sentenced Oaks to 240 months’ imprisonment on the first count
and 300 months’ imprisonment on the third count, to be served
concurrently. Furthermore, the district court found that Oaks
brandished a firearm; accordingly, it sentenced Oaks to a
consecutive sentence of eighty-four months’ imprisonment on the
second count. See 18 U.S.C. § 924(c)(1)(A)(ii) (2000). Oaks now
appeals his convictions and sentence.
First, Oaks contends the district court issued a jury
instruction pertaining to the distribution charge that was
prejudicial and did not accurately state the controlling law.
Specifically, Oaks contends the district court should have
instructed the jury pursuant to United States v. Swiderski, 548
F.2d 445, 450 (2d Cir. 1977).1 We review both the decision to give
1
In Swiderski, the Second Circuit held that “where two
individuals simultaneously and jointly acquire possession of a drug
for their own use, intending only to share it together, their only
crime is personal drug abuse — simple joint possession, without any
intent to distribute the drug further.” Swiderski, 548 F.2d at
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an instruction and the content of the instruction for abuse of
discretion. United States v. Russell, 971 F.2d 1098, 1107 (4th
Cir. 1992). It is our responsibility as a reviewing court to
determine whether the instructions as a whole “adequately informed
the jury of the controlling legal principles without misleading or
confusing the jury to the prejudice of the [appellant].” Spell v.
McDaniel, 824 F.2d 1380, 1395 (4th Cir. 1998). We have previously
declined to “reach the question of whether Swiderski is good law in
this Circuit.” United States v. Washington, 41 F.3d 917, 920 n.2
(4th Cir. 1994). After a careful review of the relevant materials,
we conclude the district court adequately informed the jury of the
controlling legal principles and, consequently, did not abuse its
discretion.
Next, Oaks contends that the second count of the
indictment, charged under 18 U.S.C. § 924(c) (2000), was
duplicitous in that it charged separate and distinct offenses. A
duplicity challenge must be made prior to trial under Fed. R. Crim.
P. 12(b)(2), (e), absent cause for waiver. See United States v.
Price, 763 F.2d 640, 643 (4th Cir. 1985) (applying former version
of Rule 12(e)). Because Oaks failed to establish that he raised
this issue prior to trial and also failed to establish cause for
the waiver, we find that this claim has been waived.
450.
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Oaks also accuses the district court of numerous abuses
of discretion under Fed. R. Evid. 404(b) for the admission of
allegedly prejudicial evidence of bad acts that, Oaks contends,
bore no relation to the acts charged in the indictment. Under Rule
404(b), evidence of other bad acts is admissible only if it is
“probative of a material issue other than character.”
Huddleston v. United States, 485 U.S. 681, 686 (1988). Such
evidence is properly admitted when it is “(1) relevant to an issue
other than character, (2) necessary, and (3) reliable.” United
States v. Mark, 943 F.2d 444, 447 (4th Cir. 1991) (internal
citations and quotations omitted). In addition, the evidence must
be more probative than prejudicial. United States v. Queen, 132
F.3d 991, 997 (4th Cir. 1997). However, a district court will not
be found to have abused its discretion unless its decision to admit
evidence under Rule 404(b) was arbitrary or irrational. Further,
evidentiary rulings are subject to review for harmless error under
Fed. R. Crim. P. 52, and any error will be found harmless if the
reviewing court can conclude “without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error.” United States v. Nyman, 649 F.2d 208, 211-12
(4th Cir. 1980) (quoting Kotteakos v. United States, 382 U.S. 750,
765 (1946)). After a careful review of the materials, particularly
the trial transcript, we conclude that any error committed by the
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district court under Rule 404(b) was harmless.2 Therefore, we
affirm Oaks’ convictions.
Finally, Oaks challenges the brandishing enhancement to
his sentence on the § 924(c) firearm charge. To support a
brandishing enhancement, the court must make a finding that the
defendant had the firearm with him or close at hand. United
States v. Groce, 398 F.3d 679, 681-82 (4th Cir. 2005). Because the
record reflects no such finding, we vacate Oaks’ sentence and
remand the case to the district court for resentencing. See Groce,
398 F.3d at 681-82 & n.2.3
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 IN PART,
VACATED IN PART, AND REMANDED
2
Further, we note that several of Oaks’ Rule 404(b) challenges
are raised for the first time on appeal. Oaks has not demonstrated
plain error in these instances. See United States v. Olano, 507
U.S. 725, 731-32 (1993).
3
Additionally, we find Oaks’ challenge to his armed career
criminal status is meritless. See Shepard v. United States, 544
U.S. 13, 25 (2005) (holding that Sixth Amendment protections apply
only to disputed facts about a prior conviction that are not
evident from “the conclusive significance of a prior judicial
record.”); United States v. Thompson, 421 F.3d 278, 284 n.4 (4th
Cir. 2005) (stating that predicate convictions do not have to be
charged in the indictment or submitted to a jury so long as no
facts extraneous to the facts necessary to support the enhancement
need be decided to invoke the enhancement).
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