United States v. Demario Abraham , 434 F. App'x 274 ( 2011 )

UNPUBLISHED
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 a defendant possesses a firearm in
furtherance of a crime of violence; however, “if the firearm is
brandished, [the defendant shall] be sentenced to a term of
imprisonment of not less than 7 years.” 18 U.S.C.
§ 924(c)(1)(A)(ii). For purposes of § 924(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
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order to intimidate that person, regardless of whether the
firearm is directly visible to that person.” 18 U.S.C.
§ 924(c)(4).
Abraham does not dispute that he engaged in a
conspiracy in which his coconspirators brandished firearms.
Instead, he argues that, because he personally did not “display”
the firearm, he lacked the specific intent required to have
brandished the firearm and, therefore, be subject to the
enhanced statutory penalty. * However, “[a] defendant may be
convicted of a § 924(c) charge on the basis of a coconspirator’s
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 Abraham’s 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 Court’s 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 Abraham’s argument, however, as it does not
speak to the concept of coconspirator liability.
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Accordingly, we affirm the district court’s 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
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