                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4971



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DANNY CARLTON GRIPPER,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (CR-03-4)


Submitted:   November 30, 2004            Decided:   January 28, 2005


Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William E. Loose, WILLIAM E. LOOSE ATTORNEY AT LAW, P.A.,
Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Jerry W. Miller, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

              Danny C. Gripper appeals his conviction and sentence for

bank robbery, in violation of 18 U.S.C. § 2113(a) (2000); armed

bank robbery, in violation of 18 U.S.C. § 2113(d) (2000); use and

carry of a firearm during a crime of violence, in violation of 18

U.S.C. § 924(c) (2000), and possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g) (2000).

              On appeal, Gripper asserts that the district court erred

by    denying    his      request    to   subpoena       alibi    witnesses    at    the

Government’s expense, because the current version of Fed. R. Crim.

P. 17(b) does not require the contact information of potential

witnesses, a factor noted by the court for its decision to deny the

motion.    The grant or denial of a request for subpoenas under Rule

17(b) is vested in the sound discretion of the trial judge, and the

denial of such is not tantamount to a denial of rights guaranteed

by the Sixth Amendment.             United States v. Sellers, 520 F.2d 1281,

1285-86 (4th Cir. 1975).             An indigent party seeking a Rule 17(b)

subpoena      must    allege      facts    that,   if    true,     demonstrate      “the

necessity of the requested witness’ testimony.”                     Fed. R. Crim. P.

17(b), (c); United States v. Webster, 750 F.2d 307, 329-30 (5th

Cir. 1984).     Gripper made no such showing.              His motion simply lists

the   names     of   several      individuals      who    “may    be    witnesses   for

Defendant.”          It   makes     no   mention   of    the     substance    of   their

testimony, or that they would provide an alibi.                        Accordingly, we


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conclude that the district court’s denial of this motion was a

sound exercise of discretion.          Sellers, 520 F.2d at 1281.

           Gripper next contends that the district court erred by

refusing to admit several pieces of exculpatory evidence at trial.

This Court reviews a district court’s evidentiary rulings for abuse

of discretion.    United States v. Leftenant, 341 F.3d 338, 342 (4th

Cir. 2003), cert. denied, 124 S. Ct. 1183 (2004).                 “[This Court]

will find that discretion to have been abused only when the

district court acted ‘arbitrarily or irrationally.’” United States

v. Moore, 27 F.3d 969, 974 (4th Cir. 1994) (quoting United States

v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993)).           After careful review

of the record, we find no abuse of discretion.

           Gripper also contends that the district court erred by

denying   his   motions    for    a   judgment   of   acquittal    because   the

evidence was insufficient to support his conviction.                This Court

reviews the district court’s decision to deny a motion for judgment

of acquittal de novo.          United States v. Gallimore, 247 F.3d 134,

136 (4th Cir. 2001).       If the motion was based on insufficiency of

the evidence, the verdict must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

support it.      Glasser v. United States, 315 U.S. 60, 80 (1942).

“[S]ubstantial evidence is evidence that a reasonable finder of

fact   could    accept    as    adequate   and   sufficient   to     support   a

conclusion of a defendant’s guilt beyond a reasonable doubt.”


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United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en

banc).   In evaluating the sufficiency of the evidence, this Court

does not review the credibility of the witnesses and assumes that

the jury resolved all contradictions in the testimony in favor of

the government.   United States v. Romer, 148 F.3d 359, 364 (4th

Cir. 1998).   After careful review of the record, we conclude there

was sufficient evidence to support Gripper’s conviction.           Glasser,

315 U.S. at 80; Romer, 148 F.3d at 364.

           Gripper next argues that the district court abused its

discretion by refusing to sever the § 922(g) count from the

remaining counts because it is not probative as to Count I, and

because the § 922(g) charge prejudicially “allowed the jury to hear

[that] Gripper had been convicted [of] . . . a similar crime.”            A

court of appeals may reverse a denial of a motion for relief from

prejudicial   joinder    only   if    the    district   court   abused   its

discretion or there was clear prejudice.          United States v. Acker,

52 F.3d 509, 514 (4th Cir. 1995).       To obtain a severance under Fed.

R. Crim. P. 14, a defendant must show that the joinder is “‘so

manifestly prejudicial that it outweighed the dominate concern with

judicial economy.’”     Id. (quoting United States v. Armstrong, 621

F.2d 951, 954 (9th Cir. 1980)).              After careful review of the

record, we conclude that all four counts were properly joined, Fed.

R. Crim. P. 8(a), and that the district court’s denial of Gripper’s




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motion for severance was neither an abuse of discretion nor clearly

prejudicial.       Acker, 52 F.3d at 514.

            Gripper’s penultimate claim is that the district court

erred by rejecting his proposed jury instruction.                 In general, the

decision to give, or not to give, a jury instruction and the

content    of   that    instruction       are    reviewed   for    an     abuse    of

discretion.     United States v. Burgos, 55 F.3d 933, 935 (4th Cir.

1995).     To be entitled to a requested jury instruction, the party

urging the instruction must establish a sufficient evidentiary

foundation to support the instruction.               United States v. Lewis, 53

F.3d 29, 32 n.8 (4th Cir. 1995). “[T]his court must view the

evidence in the light most favorable to [the party requesting the

instruction] in determining if there is sufficient evidentiary

foundation for a requested instruction.” United States v. Giraldi,

86 F.3d 1368, 1376 (5th Cir. 1996) (citing United States v. Lewis,

592 F.2d 1282, 1286 (5th Cir. 1979)).                The denial of a requested

instruction is reversible only if the proposed instruction:                        (1)

was correct, (2) was not substantially covered by the court’s

charge to the jury, and (3) dealt with a point so important that

failure to issue the requested instruction seriously impaired the

defendant’s ability to conduct his defense.               Lewis, 53 F.3d at 32.

After    careful    review    of   the    evidence    presented    at     trial,   we

conclude    that    Gripper    has   not    established     that    the    evidence

supported his proposed instruction.                Accordingly, the district


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court did not abuse its discretion in denying the request.                        Id.;

Burgos, 55 F.3d at 935.

           Finally,     Gripper    contends        that      the    district     court

impermissibly enhanced his sentence from five to seven years for

violating 18 U.S.C. § 924(c), in violation of the Supreme Court’s

recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).

However,   Blakely     involves   the       use   of   the    federal      Sentencing

Guidelines to enhance a defendant’s sentence based upon facts not

presented to the jury.        Here, the indictment specifically charged

Gripper    with      brandishing        a     firearm        in      violation      of

§ 924(c)(1)(A)(ii), an offense that carries a seven-year penalty.

Because the charge of brandishing a weapon was presented to and

found by the jury, we conclude that Gripper’s sentence does not run

afoul of the reasoning set forth in Blakely.

           Accordingly, we affirm Gripper’s sentence and conviction.

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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