United States of America v. Jimmy Mouli Mum

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4469
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JIMMY MOULI MUM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CR-04-14)
Submitted: May 25, 2005 Decided: July 13, 2005
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Cary S. Greenberg, RICH GREENBERG ROSENTHAL & COSTLE, LLP,
Alexandria, Virginia, for Appellant. Paul J. McNulty, United States
Attorney, Patrick F. Stokes, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Jimmy Mouli Mum appeals his conviction and seventy-five
month sentence for conspiracy to distribute marijuana and
possession of marijuana with intent to distribute, in violation of
21 U.S.C. §§ 841, 846 (2000), and possession of a firearm in the
furtherance of drug trafficking, in violation of 18 U.S.C. § 924
(2000). We affirm his convictions. Finding that the district
court’s imposition of sentence violated Mum’s Sixth Amendment right
to trial by a jury, we vacate the sentence and remand for further
proceedings.
Mum first claims on appeal that insufficient evidence
supports his conviction for possession of a firearm in the
furtherance of drug trafficking. In reviewing the sufficiency of
the evidence, this court construes the evidence in the light most
favorable to the United States and must draw all favorable
inferences in its favor, sustaining the verdict if any rational
trier of fact could have found the necessary elements of the crime
beyond a reasonable doubt. United States v. Romer, 148 F.3d, 359,
364 (4th Cir. 1998). In United States v. Lomax, 293 F.3d 701, 706
(4th Cir. 2002), this court concluded that “a fact finder is
certainly entitled to come to the common-sense conclusion that when
someone has both drugs and a firearm on their person, the gun is
present to further drug trafficking.” Given the circumstances of
this case, we cannot conclude it was irrational for the district

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court to conclude that Mum’s admitted possession of the .25 caliber
pistol was in the furtherance of drug trafficking. Accordingly, we
affirm Mum’s conviction under 18 U.S.C. § 924(c).
Mum next assigns error to the district court’s denial of
a two-point reduction for acceptance of responsibility. This court
reviews a sentencing court’s evaluation of acceptance of
responsibility under the clearly erroneous standard. See United
States v. Ruhe, 191 F.3d 376, 388 (4th Cir. 1999). Uncontradicted
testimony at trial indicated that Mum continued to engage in
distribution of marijuana even after his arrest for the instant
charges. Continuing criminal activity is the antithesis of
acceptance of responsibility and is an appropriate consideration in
the denial of credit for the same within the scope of the
sentencing guidelines. See United States v. Franks, 46 F.3d 402,
406 (5th Cir. 1995); United States v. Panadero, 7 F.3d 691, 694
(7th Cir. 1993). Moreover, we also conclude that Mum’s attempt to
obstruct justice by the suborning of perjury likewise supports the
district court’s determination to deny the reduction. Accordingly,
we deny this claim.
Mum next assigns error to the district court’s
calculation of the quantity of marijuana attributable to him for
application of the Sentencing Guidelines. We have reviewed the
district court’s thorough memorandum opinion on this matter, and,

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*Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Mum’s sentencing. See generally Johnson v. United States,
520 U.S. 461, 468 (1997) (stating that an error is “plain” if “the
law at the time of trial was settled and clearly contrary to the
law at the time of appeal”).
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subject to the discussion below, find no error. Accordingly, we
deny this claim on the reasoning of the district court.
Finally, Mum claims that the district court’s imposition
of sentence violated his Sixth Amendment right to trial by a jury.
Because we conclude that the district court’s application of the
Sentencing Guidelines enhanced Mum’s sentence on the basis of facts
not found beyond a reasonable doubt, we agree. * See United
States v. Booker, 125 S. Ct. 738 (2005); United States v. Hughes,
401 F.3d 540 (4th Cir. 2005). Accordingly, although we affirm
Mum’s convictions, we vacate his sentence and remand for further
proceedings.
Although the Sentencing Guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 125 S. Ct. at 767. On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) (2000), and then impose a

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sentence. Id. If that sentence falls outside the Guidelines
range, the court should explain its reasons for the departure as
required by 18 U.S.C. 3553(c)(2) (2000). Id. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
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

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