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United States v. Felix Okafor, 14-4324 (2015)

Court: Court of Appeals for the Fourth Circuit Number: 14-4324 Visitors: 31
Filed: Mar. 02, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4324 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FELIX A. OKAFOR, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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
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                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).



                                              2
                                        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



                                        3
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



                                        4
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



                                             5
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




                                     6

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