                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4113



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. (CR-02-89)


Submitted:   June 5, 2006                   Decided:   July 7, 2006


Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina;
Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Thomas R. Ascik, 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Unpublished opinions are not binding precedent in this circuit.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:

          Gregory Allen Oaks was convicted by a jury 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 now

appeals his convictions and sentence.

          First, Oaks contends the district court issued a jury

instruction     pertaining   to   the   distribution     charge    that     was

prejudicial and did not accurately state the controlling law.

Specifically,     Oaks   contends   the     district   court    should    have

instructed the jury pursuant to United States v. Swiderski, 548

F.2d 445, 450 (2d Cir. 1977).1      We review both the decision to give


     1
      In Swiderski, the Second Circuit held that “where two
individuals simultaneously and jointly acquire possession of a drug
for their own use, intending only to share it together, their only
crime is personal drug abuse — simple joint possession, without any
intent to distribute the drug further.” Swiderski, 548 F.2d at

                                    - 2 -
an instruction and the content of the instruction for abuse of

discretion.   United States v. Russell, 971 F.2d 1098, 1107 (4th

Cir. 1992).      It is our responsibility as a reviewing court to

determine whether the instructions as a whole “adequately informed

the jury of the controlling legal principles without misleading or

confusing the jury to the prejudice of the [appellant].”                  Spell v.

McDaniel, 824 F.2d 1380, 1395 (4th Cir. 1998).             We have previously

declined to “reach the question of whether Swiderski is good law in

this Circuit.”    United States v. Washington, 41 F.3d 917, 920 n.2

(4th Cir. 1994). After a careful review of the relevant materials,

we conclude the district court adequately informed the jury of the

controlling legal principles and, consequently, did not abuse its

discretion.

          Next,    Oaks   contends     that   the       second    count    of   the

indictment,   charged     under   18   U.S.C.       §    924(c)    (2000),      was

duplicitous in that it charged separate and distinct offenses.                   A

duplicity challenge must be made prior to trial under Fed. R. Crim.

P. 12(b)(2), (e), absent cause for waiver.               See United States v.

Price, 763 F.2d 640, 643 (4th Cir. 1985) (applying former version

of Rule 12(e)).     Because Oaks failed to establish that he raised

this issue prior to trial and also failed to establish cause for

the waiver, we find that this claim has been waived.




450.

                                  - 3 -
          Oaks also accuses the district court of numerous abuses

of discretion under Fed. R. Evid. 404(b) for the admission of

allegedly prejudicial evidence of bad acts that, Oaks contends,

bore no relation to the acts charged in the indictment.        Under Rule

404(b), evidence of other bad acts is admissible only if it is

“probative   of   a     material    issue      other   than   character.”

Huddleston v. United States, 485 U.S. 681, 686 (1988).               Such

evidence is properly admitted when it is “(1) relevant to an issue

other than character, (2) necessary, and (3) reliable.”            United

States v. Mark, 943 F.2d 444, 447 (4th Cir. 1991) (internal

citations and quotations omitted).         In addition, the evidence must

be more probative than prejudicial.          United States v. Queen, 132

F.3d 991, 997 (4th Cir. 1997).      However, a district court will not

be found to have abused its discretion unless its decision to admit

evidence under Rule 404(b) was arbitrary or irrational.          Further,

evidentiary rulings are subject to review for harmless error under

Fed. R. Crim. P. 52, and any error will be found harmless if the

reviewing court can conclude “without stripping the erroneous

action from the whole, that the judgment was not substantially

swayed by the error.”    United States v. Nyman, 649 F.2d 208, 211-12

(4th Cir. 1980) (quoting Kotteakos v. United States, 382 U.S. 750,

765 (1946)). After a careful review of the materials, particularly

the trial transcript, we conclude that any error committed by the




                                   - 4 -
district court under Rule 404(b) was harmless.2      Therefore, we

affirm Oaks’ convictions.

          Finally, Oaks challenges the brandishing enhancement to

his sentence on the § 924(c) firearm charge.         To support a

brandishing enhancement, the court must make a finding that the

defendant had the firearm with him or close at hand.         United

States v. Groce, 398 F.3d 679, 681-82 (4th Cir. 2005).   Because the

record reflects no such finding, we vacate Oaks’ sentence and

remand the case to the district court for resentencing. See Groce,

398 F.3d at 681-82 & n.2.3

          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 IN PART,
                                      VACATED IN PART, AND REMANDED



     2
      Further, we note that several of Oaks’ Rule 404(b) challenges
are raised for the first time on appeal. Oaks has not demonstrated
plain error in these instances. See United States v. Olano, 507
U.S. 725, 731-32 (1993).
     3
      Additionally, we find Oaks’ challenge to his armed career
criminal status is meritless. See Shepard v. United States, 544
U.S. 13, 25 (2005) (holding that Sixth Amendment protections apply
only to disputed facts about a prior conviction that are not
evident from “the conclusive significance of a prior judicial
record.”); United States v. Thompson, 421 F.3d 278, 284 n.4 (4th
Cir. 2005) (stating that predicate convictions do not have to be
charged in the indictment or submitted to a jury so long as no
facts extraneous to the facts necessary to support the enhancement
need be decided to invoke the enhancement).

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