United States v. White , 150 F. App'x 258 ( 2005 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 04-4259
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    JERMAINE SILAS WHITE,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Charleston.   Patrick Michael Duffy, District
    Judge. (CR-03-628)
    Submitted:   September 28, 2005           Decided:   October 13, 2005
    Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.
    Affirmed in part, vacated in part, and remanded by unpublished per
    curiam opinion.
    Parks N. Small, Federal Public Defender, Columbia, South Carolina,
    for Appellant. J. Strom Thurmond, Jr., United States Attorney,
    John C. Duane, Assistant United States Attorney, Charleston, South
    Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Jermaine Silas White appeals his conviction and sentence
    on a two-count indictment charging him with being a felon in
    possession of a firearm, in violation of 
    18 U.S.C. §§ 922
    (g)(1),
    924(a)(2) (Count One), and possession with intent to distribute
    2.66   grams   of   crack   cocaine,   in   violation   of   
    21 U.S.C. §§ 841
    (a)(1), 841(b)(1)(C).      After White’s guilty plea to Count One,
    Count Two was dismissed.       The district court sentenced White on
    Count One to a term of 96 months’ imprisonment, followed by a
    three-year term of supervised release.         On appeal, White advances
    two challenges to the district court’s four-level enhancement of
    his sentence for possession of a firearm in connection with another
    felony offense, pursuant to U.S. Sentencing Guidelines Manual,
    § 2K2.1(b)(5) (2003), first to the propriety of the application of
    the enhancement under the Guidelines, and second to the district
    court’s application of the enhancement as a violation of White’s
    Sixth Amendment rights. We have reviewed the record, together with
    White’s claims on appeal, and find that White’s sentence must be
    vacated pursuant to United States v. Booker, 
    125 S. Ct. 738
     (2005).
    As a preliminary matter, we find that the enhancement
    applied by the district court to White’s case was proper under the
    Guidelines and the law of this circuit.            White challenges his
    sentence on the ground that it “appears” as though the district
    court relied on the legal standard employed by the Fifth Circuit in
    2
    United States v. Condren, 
    18 F.3d 1190
     (5th Cir. 1994), and similar
    cases,   that    hold    that   mere     possession     of   the   firearm   is   a
    sufficient basis on which to apply the enhancement, rather than the
    standard followed in this circuit, as reaffirmed in United States
    v. Blount, 
    337 F.3d 404
     (4th Cir. 2003).                     The basis for his
    challenge is that Condren and similar cases were cited by the
    parties during the sentencing hearing, and the district court found
    the enhancement to be appropriate under all the cases discussed.
    Having reviewed the record, we conclude the undisputed
    evidence supported the district court’s enhancement under the
    Guidelines      in   White’s     case.        Upon    seeing    police   officers
    approaching his residence, White ran inside the house, donned a
    sweatshirt, emerged through a side door several seconds later and
    was pursued by the officers on foot for 300 yards, prior to
    throwing the firearm at issue onto the roof of a neighboring
    residence.      After apprehending White, the officers discovered a
    quantity   of    crack    in    his   pocket.        These   facts   support   the
    conclusion that White simultaneously possessed both the firearm and
    the crack for at least 300 yards while attempting to evade law
    enforcement, and used the firearm to embolden him during the
    commission of the crime of possession of the crack, and to protect
    his person and property, including the crack.                  We find such facts
    constitute evidence of a nexus between the firearm and the drugs
    sufficient to support the district court’s application of the
    3
    enhancement under the Guidelines, as set forth in Blount. See also
    United States v. Nale, 
    101 F.3d 1000
    , 1003-1004 (4th Cir. 1996)
    (interpreting the “in connection with” standard applicable in the
    instant case).*
    White’s second challenge to the enhancement is advanced
    under Blakely v. Washington, 
    542 U.S. 296
     (2004). After the filing
    of the briefs in this case, the Supreme Court rendered its decision
    in Booker.       Based on Booker, we find that the district court’s
    enhancement      of    White’s     sentence        based    upon   facts   found    by   a
    preponderance         of   the   evidence         and    not   established   beyond      a
    reasonable doubt was plain error.                       Booker, 125 S. Ct. at 756;
    United States v. Hughes, 
    401 F.3d 540
    , 546 (4th Cir. 2005).
    As White advances no challenge to his conviction, we
    affirm    his    conviction,       vacate         his    sentence,   and   remand    for
    resentencing in accordance with those factors set forth in 
    18 U.S.C. § 3553
    (a) (2000), and viewing the Sentencing Guidelines as
    advisory,       consistent       with   the       Supreme      Court’s   decision    and
    directive in Booker.             See Booker, 125 S. Ct. at 764-65, 767;
    Hughes, 
    401 F.3d at 546-47
    . We dispense with oral argument because
    the   facts and legal contentions are adequately                     presented     in the
    *
    We note that this court’s decision in Nale was among the
    cases cited by the parties during sentencing on which the district
    court relied in rendering its decision on the enhancement.
    4
    materials   before   the   court   and   argument   would   not   aid   the
    decisional process.
    AFFIRMED IN PART,
    VACATED IN PART,
    AND REMANDED
    5
    

Document Info

Docket Number: 04-4259

Citation Numbers: 150 F. App'x 258

Judges: Luttig, Per Curiam, Shedd, Wilkinson

Filed Date: 10/13/2005

Precedential Status: Non-Precedential

Modified Date: 8/7/2023