United States of America v. David Dewayne Harper

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4339
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID DEWAYNE HARPER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-03-58)
Submitted: May 25, 2005 Decided: July 7, 2005
Before LUTTIG and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Jerry W. Miller, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
David Dewayne Harper appeals his fifty month sentence,
imposed after he pled guilty to possession of a firearm by a
prohibited person in violation of 18 U.S.C. § 922(g) (2000),
resisting a federal law enforcement officer in violation of 18
U.S.C. § 111(a) (2000), and possession of marijuana in violation of
21 U.S.C. § 844(a) (2000). Harper does not challenge his
conviction on appeal.
Harper argues the district court erred when it increased
his base offense level after finding he used one of the firearms
recovered from his vehicle “in connection with another felony
offense.” U. S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2003),
provides for a four-level increase if the firearm was “used or
possessed . . . in connection with another felony offense.”
“Felony offense” is defined to mean “any offense (federal, state,
or local) punishable by imprisonment for a term exceeding one year,
whether or not a criminal charge was brought, or conviction
obtained.” USSG § 2K2.1, comment. (n.7).
The Government has the burden of proving the necessary
facts by a preponderance of the evidence. United States v.
Garnett, 243 F.3d 824, 828 (4th Cir. 2001). Factual findings are
reviewed for clear error. United States v. Daughtrey, 874 F.2d
213, 217 (4th Cir. 1989). Clear error occurs when the court, upon
reviewing the record as a whole, is left with the “‘definite and

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1Just 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 Harper’s sentencing.
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firm conviction that a mistake has been committed.’” United
States v. Powell, 124 F.3d 655, 667 (5th Cir. 1997) (quoting United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). We
have reviewed the record and conclude there was sufficient evidence
for the district court to find Harper used the firearm in
connection with the felony offense of attempted first-degree
murder. See Tenn. Code Ann. § 39-13-202(a)(2) (2002). We
therefore conclude Harper’s argument is without merit.
Harper’s sentence, however, violated the rule announced
in United States v. Booker, 125 S. Ct. 738 (2005). 1 In United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005), we held that
when a sentence calculated under the Sentencing Guidelines exceeds
the maximum sentence authorized by the facts found by the jury
alone, the defendant could demonstrate plain error that warranted
resentencing under Booker. Because it is undisputed that the
district court made factual determinations beyond facts Harper
admitted to that increased his sentence, Harper is entitled to
resentencing. See id. Accordingly, we affirm Harper’s conviction
but vacate his sentence and remand for resentencing “consistent

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2Although 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 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.
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with the remedial scheme set forth in Justice Breyer’s opinion for
the Court in Booker.”2 Id. at 544 .
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 AND REMANDED IN PART

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