                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5110



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


OLIVER JAMES ZIMMERMAN,

                                              Defendant - Appellant.



Appeal from the United States District        Court for the Middle
District of North Carolina, at Durham.         James A. Beaty, Jr.,
District Judge. (CR-05-19)


Submitted:   May 31, 2006                  Decided:   June 16, 2006


Before WILLIAMS, MICHAEL, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Benjamin D. Porter, MORROW ALEXANDER & PORTER, PLLC, Winston-Salem,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Douglas Cannon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Oliver   James    Zimmerman     appeals   his    conviction    for

brandishing a firearm during and in relation to a bank robbery.              On

appeal, he argues that the evidence was insufficient to support

the jury’s verdict because there was no evidence that he knew that

Luther Ware--with whom he agreed to rob the bank--actually had a

gun.    We affirm.

             At Zimmerman’s trial, Zimmerman, the bank manager, two

tellers, and two customers who were present at the time of the

robbery,   testified.         The   government    presented    evidence    that

Zimmerman and Ware entered the bank.             Zimmerman went directly to

the teller line, vaulted over the counter, and directed the teller

to assist him by opening the money drawers.

             The second man, Luther Ware, wore a mask and brandished

a firearm.    He directed the bank branch manager, the two customers

and the other teller to lie on the floor in the lobby area of the

bank.    The bank manager testified that he heard Ware threaten the

people to be still or he would “blow their brains out.”             Zimmerman

immediately responded, “No, no, no.               We’re not going to hurt

anybody.” Kathy Mitchell, a bank customer, also testified that she

heard the threat and heard Zimmerman respond, “No, there won’t be

a shooting.”

             Gail Libbey, the second teller, testified that Ware

threatened to “blow their heads off.”            She did not hear Zimmerman


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say anything in response.     Tonya Mills, the other customer, also

did not hear Zimmerman say anything after Ware threatened to shoot

the occupants of the bank.

            Danielle Emmons, the teller who was behind the counter

when the robbery started, testified that she heard Ware’s threat to

“Be quiet or I’ll blow your heads off.”        She testified that, upon

hearing this, she realized the seriousness of the situation, and

she started shaking. Zimmerman told her to “stay calm, nothing was

going to happen, no one was going to get hurt.”

            Zimmerman testified that he and Ware did not plan the

robbery and did not discuss what they would do once they entered

the bank.    He testified that he did not know that Ware had a gun

and did not see the gun while they were in the bank.          When asked

what prompted him to say that no one was going to get hurt,

Zimmerman stated that he noticed Emmons’ hands shaking and made the

statement to calm her and reassure her.

            We find that, viewing the evidence in the light most

favorable to the government, there was sufficient evidence for a

jury to conclude that Zimmerman had actual knowledge that a gun

would be used.   See United States v. Spinney, 65 F.3d 231, 237 (1st

Cir.   1995).    Therefore,   we    conclude   that   the   evidence   was

sufficient to support the jury’s verdict.        See Glasser v. United

States, 315 U.S. 60, 80 (1942); United States v. Wills, 346 F.3d

476, 495 (4th Cir. 2003), cert. denied, 542 U.S. 939 (2004).


                                   - 3 -
Accordingly, we affirm Zimmerman’s conviction for brandishing a

firearm during and in relation to a bank robbery.       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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