United States v. Oaks ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5111
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. (1:02-cr-00089)
Submitted: August 20, 2007 Decided: August 30, 2007
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Janna D. Allison, Waynesville, North Carolina, for Appellant.
Gretchen C.F. Shappert, United States Attorney, Charlotte, North
Carolina; Jerry Wayne Miller, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Gregory Oaks 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 appealed, and we affirmed Oaks’ convictions.
However, we concluded the district court’s brandishing finding was
not properly supported, because the court did not find Oaks had a
firearm with him or close at hand, as required by United States v.
Groce, 398 F.3d 679, 681-82 (4th Cir. 2005). Accordingly, we
vacated Oaks’ sentence and remanded to the district court for
resentencing. See United States v. Oaks, 185 F. App’x 298 (4th
Cir.) (unpublished), cert. denied, 127 S. Ct. 567 (2006).
The district court expressly found on remand that Oaks
had a firearm with him or close at hand. The court sentenced Oaks
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to an identical term of 384 months’ imprisonment, and Oaks
appealed. Oaks’ counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), contending there are no
meritorious issues for appeal but suggesting the district court
erroneously found Oaks brandished a firearm. Oaks filed a pro se
supplemental brief asserting the brandishing enhancement was
factually erroneous and the imposition of sentence was improper
under United States v. Booker, 543 U.S. 220 (2005). The Government
declined to file a responding brief. Finding no error, we affirm.
Pursuant to 18 U.S.C. § 924(c)(1)(A) (2000), any person
who, during and in relation to any crime of violence, uses or
carries a firearm, or who, in furtherance of any such crime,
possesses such a firearm, shall, receive a sentence consecutive to
the punishment provided for such crime of violence. If the firearm
was brandished, the consecutive sentence is not to be less than
seven years’ imprisonment. See 18 U.S.C. § 924(c)(1)(A)(ii)
(2000). “Brandish” means, with respect to a firearm, “to display
all or part of the firearm, or otherwise make the presence of the
firearm known to another person, in order to intimidate that
person, regardless of whether the firearm is directly visible to
that person.” 18 U.S.C. § 924(c)(4) (2000). “Presence” is the
fact or condition of being “in view or at hand.” Groce, 398 F.3d
at 681. Therefore, brandishing occurs in this context upon a
finding a firearm was on the person or close at hand. Id. at 682.
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After thoroughly reviewing the record, including the
district court’s findings at the resentencing hearing, we conclude
the court properly found Oaks brandished a firearm. Furthermore,
absent a Government motion for downward departure on the basis of
substantial assistance, the district court lacked discretion to
sentence Oaks below the seven-year statutory minimum on this count.
See United States v. Robinson, 404 F.3d 850, 862 (4th Cir.), cert.
denied, 126 S. Ct. 288 (2005). We conclude the sentence was
proper.*
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Oaks’s sentence. We deny Oaks’ motion for
substitution of counsel. This court requires that counsel inform
Oaks, in writing, of the right to petition the Supreme Court of the
United States for further review. If Oaks 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
*
Oaks contends the district court did not sufficiently
reference the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006)
factors while imposing sentence. To the extent this contention is
properly before the court with respect to counts one and three, the
sentence was presumptively reasonable. United States v. Green, 436
F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006); see
also Rita v. United States, 127 S. Ct. 2456, 2462 (2007).
Furthermore, the district court acknowledged the § 3553(a) factors
at resentencing and was not required to comment more extensively.
See Rita, 127 S. Ct. at 2469; United States v. Johnson, 445 F.3d
339, 345 (4th Cir. 2006).
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withdraw from representation. Counsel’s motion must state that a
copy thereof was served on Oaks.
AFFIRMED
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