                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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Cir.) (unpublished), cert.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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