                             UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished per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Unpublished opinions are not binding precedent in this circuit.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).
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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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


     *
      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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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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