                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
WARREN SANDERS, a/k/a William                   No. 03-4768
McKinney, a/k/a New York Mike,
a/k/a Charlie Brown,
                Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Huntington.
                Robert C. Chambers, District Judge.
                             (CR-03-86)

                      Submitted: May 21, 2004

                      Decided: August 27, 2004

      Before WIDENER, MOTZ, and KING, Circuit Judges.



Vacated and remanded by unpublished per curiam opinion.


                            COUNSEL

John H. Tinney, Jr., John K. Cecil, THE TINNEY LAW FIRM,
P.L.L.C., Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, Miller A. Bushong III, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
2                      UNITED STATES v. SANDERS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Warren Sanders pled guilty to distribution of more than five grams
of cocaine base (crack), 21 U.S.C. § 841(a)(1) (2000), and was sen-
tenced to a term of 262 months imprisonment. He contends on appeal
that the district court erred in assigning him one criminal history
point, pursuant to U.S. Sentencing Guidelines Manual § 4A1.1(c)(1)
(2002), for a prior seven-day West Virginia sentence for fleeing on
foot from a law enforcement officer.1 Because the offense of fleeing
is similar to an offense listed in § 4A1.2(c)(1), we vacate Sanders’
sentence and remand for resentencing. We grant Sanders’ motion for
leave to file a supplemental brief addressing the effect on his sentence
of Blakely v. Washington, 124 S. Ct. 2531 (2004). We deem the
motion to be the supplemental brief, and we conclude that the Blakely
claim is without merit. See United States v. Hammoud, No. 03-4253,
2004 WL 1730309 (4th Cir. Aug. 2, 2004) (order).

   "The Guidelines create a general presumption that all prior sen-
tences within the applicable time period will be included in calculat-
ing a defendant’s criminal history category." United States v. Harris,
128 F.3d 850, 853 (4th Cir. 1997). An exception is made for sen-
tences for misdemeanor and petty offenses that are listed in USSG
§ 4A1.2(c)(1) or are similar to a listed offense. Sentences for these
offenses are counted only if (1) the prior sentence was a term of at
least one year of probation or thirty days imprisonment, or (2) the
prior offense was similar to the instant offense.

   In the district court, Sanders maintained that his prior conviction
for fleeing was similar to resisting arrest and to providing false infor-
    1
  The misdemeanor offense of non-vehicular flight from a law enforce-
ment officer is currently set out in W. Va. Code Ann. § 61-5-17(d).
(Michie 2000 & LexisNexis Supp. 2003).
                      UNITED STATES v. SANDERS                        3
mation to a police officer; both are offenses listed in § 4A1.2(c)(1).
The district court rejected his argument. We review the district court’s
legal determination de novo. United States v. Caplinger, 339 F.3d
226, 233 (4th Cir. 2003). In this appeal, Sanders again argues that
fleeing is similar to the listed offenses of resisting arrest and argues
for the first time that it is similar to "hindering or failure to obey a
police officer," which is also a listed offense. We conclude that flee-
ing and "hindering or failure to obey a police officer" are similar
offenses;2 thus, we do not consider Sanders’ argument concerning the
offense of resisting arrest.

  In Harris, we adopted a "similar elements" test for determining
whether two offenses are similar under § 4A1.2(c)(1). We look to
West Virginia law for the elements of the predicate offense of fleeing
and to federal law for the elements of the listed offense and the ulti-
mate determination of similarity. United States v. Tigney, 367 F.3d
200, 202 (4th Cir. 2004).

   The elements of the West Virginia offense of fleeing are that (1)
the defendant intentionally flees by means other than a vehicle (2)
from a law enforcement officer acting in his or her official capacity
who is attempting to make a lawful arrest (3) with knowledge (or rea-
son to know) that the law enforcement officer is attempting to arrest
him or her. W. Va. Code Ann. § 61-5-17(d) (Michie Supp. 2003). A
defendant hinders or fails to obey a police officer under federal law
if he (1) fails to comply (2) with a lawful order (3) issued by a police
officer. Tigney, 367 F.3d at 202 n.3.

   Although there is some difference between the elements of these
offenses, under Harris we need only find that the elements are "nearly
corresponding" or "resembling in many respects." 128 F.3d at 854.
We conclude that the essential elements of fleeing and "hindering or
failure to obey a police officer" sufficiently resemble each other that
Sanders’ sentence for fleeing was excludable under § 4A1.2(c)(1).
  2
   Although Sanders did not make this particular claim in the district
court, we may consider it because he preserved for appeal the question
of whether a criminal history point was properly awarded for his fleeing
sentence.
4                    UNITED STATES v. SANDERS
Consequently, Sanders’ sentence for fleeing should not have been
counted toward his criminal history score.

   We therefore vacate the sentence imposed by the district court and
remand for resentencing in accord with this opinion. We grant Sand-
ers’ motion to file a supplemental brief addressing Blakely and we
deny the Blakely claim. 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.

                                      VACATED AND REMANDED
