UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4542
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHAWNDELL BARNES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(8:02-cr-00215-AW-3)
Submitted: March 12, 2007 Decided: March 28, 2007
Before WILKINSON, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard Alan Seligman, Richard T. Brown, Washington, D.C., for
Appellant. Rod J. Rosenstein, United States Attorney, Michael R.
Pauzé, Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawndell Barnes appeals his sentence following our
remand for resentencing under United States v. Booker, 543 U.S. 220
(2005). Barnes was convicted by a jury of conspiracy to commit
bank robbery, in violation of 18 U.S.C. § 371 (2000) (Count One),
aiding and abetting armed bank robbery, in violation of 21 U.S.C.
§ 2113(a), (d) (2000) (Count Two), and aiding and abetting the use
of a firearm during a crime of violence, in violation of 21 U.S.C.
§ 924(c) (2000) (Count Three).
On remand, the district court went below the advisory
guidelines range and imposed concurrent sentences of 36 months on
Counts One and Two. The court reimposed a consecutive 84-month
sentence on Count Three. On appeal, Barnes does not challenge the
sentences on Counts One and Two but contends that the consecutive
84-month sentence for aiding and abetting brandishing of a weapon
on Count Three violated the Sixth Amendment. Finding no reversible
error, we affirm.
Barnes’ argument that United States v. Harris, 536 U.S.
545 (2002), was “implicitly overruled” by Booker is without merit.
While the Supreme Court may revisit its decision in Harris after
Booker, until it does so, Harris remains law. See Rodriquez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If
a precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
- 2 -
decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of
overruling its own decisions.”).
Barnes next argues that the district court applied the
wrong standard of proof in determining that he aided and abetted
brandishing a firearm. As Barnes argues, proof that a defendant
aided and abetted a violation of § 924(c) requires proof that the
defendant knew to a practical certainty, or had actual knowledge,
that the principal would use a gun. See United States v. Spinney,
65 F.3d 231, 237 (1st Cir. 1995). We conclude the district court
applied this standard on resentencing and there was sufficient
evidence to prove Barnes had actual knowledge a firearm would be
brandished during the armed bank robbery. We therefore find no
reversible error.
Accordingly, we affirm Barnes’ sentence. 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
- 3 -