United States v. Demario Abraham, 4th Cir. (2011)
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Scribd Government DocsUnited States v. Demario Abraham, 4th Cir. (2011)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4526
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
DEMARIO ABRAHAM,
Defendant Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:09-cr-00040-MR-4)
Submitted:
May 27, 2011
Decided:
June 10, 2011
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James S. Weidner, Jr., LAW OFFICE OF JAMES S. WEIDNER, JR.,
Charlotte, North Carolina, for Appellant.
Anne M. Tompkins,
United States Attorney, Richard Lee Edwards, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demario Abraham appeals the 134-month sentence imposed
following his guilty plea to one count of conspiracy to commit
an offense against the United States, in violation of 18 U.S.C.
371 (2006) (Count One); one count of armed bank robbery, in
violation of 18 U.S.C. 2113(d) (2006) (Count Two); and one
count of possession of a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. 924(c) (2006)
(Count Three).
On appeal, Abraham argues that the district
court erred when it imposed a consecutive seven-year sentence on
Count Three pursuant to 18 U.S.C. 924(c)(1)(A)(ii) because he
did not brandish a firearm.
Finding no reversible error, we
affirm.
We
review
de
novo
questions
of
statutory
interpretation arising from the imposition of a sentence.
See
United States v. Brandon, 247 F.3d 186, 188 (4th Cir. 2001).
Section 924(c)(1)(A) requires the imposition of a consecutive
five-year
sentence
where
defendant
possesses
firearm
in
furtherance of a crime of violence; however, if the firearm is
brandished,
imprisonment
[the
defendant
of
924(c)(1)(A)(ii).
not
less
shall]
For
than
purposes
be
7
of
sentenced
years.
924(c),
to
a
18
term
of
U.S.C.
brandish
is
defined as to display all or part of the firearm, or otherwise
make the presence of the firearm known to another person, in
2
order
to
firearm
intimidate
is
that
directly
person,
visible
to
regardless
that
of
whether
person.
18
the
U.S.C.
924(c)(4).
Abraham
conspiracy
in
does
which
not
his
dispute
that
coconspirators
he
engaged
brandished
in
firearms.
Instead, he argues that, because he personally did not display
the
firearm,
brandished
he
the
lacked
firearm
the
specific
and,
enhanced statutory penalty. *
intent
therefore,
be
required
to
subject
have
to
the
However, [a] defendant may be
convicted of a 924(c) charge on the basis of a coconspirators
use of a gun if the use was in furtherance of the conspiracy and
was reasonably foreseeable to the defendant.
United States v.
Wilson, 135 F.3d 291, 305 (4th Cir. 1998).
Because it was
reasonably
foreseeable
that
Abrahams
coconspirators
would
brandish firearms in furtherance of the conspiracy and they did,
in fact, do so, we hold that the district court did not err in
subjecting
Abraham
to
the
enhanced
penalties
found
in
924(c)(1)(A)(ii).
Abraham seeks support from the Supreme Courts discussion
in Dean v. United States, 129 S. Ct. 1849, 1853-54 (2009), of
924(c)(4)s requirement that [t]he defendant must have
intended to brandish the firearm for a specific purpose. Dean
does not bolster Abrahams argument, however, as it does not
speak to the concept of coconspirator liability.
Accordingly, we affirm the district courts judgment.
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
