                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-4244


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICHARD LAWRENCE BREWINGTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Malcolm J. Howard,
Senior District Judge. (5:15-cr-00285-H-1)


Submitted:   February 17, 2017            Decided:   April 12, 2017


Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   John Stuart Bruce, United States Attorney, Jennifer
P. May-Parker, First Assistant United States Attorney, Phillip
A. Rubin, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Richard Lawrence Brewington appeals his 48-month sentence

for five counts of possession of a firearm by a convicted felon

and aiding and abetting.          Brewington argues that the district

court erred in applying a sentencing enhancement for engaging in

the trafficking of firearms.         For the reasons that follow, we

vacate the court’s judgment and remand for resentencing.

      “In determining whether a district court properly applied

the advisory [Sentencing] Guidelines, including application of

any   sentencing    enhancements,    we   review    the   district   court’s

legal conclusions de novo and its factual findings for clear

error.”   United States v. Layton, 564 F.3d 330, 334 (4th Cir.

2009).        The   enhancement     for     trafficking    firearms,    U.S.

Sentencing    Guidelines   Manual   § 2K2.1(b)(5)     (2015),   applies   if

two   conditions    are    met.      One,     the   defendant   must    have

“transported, transferred, or otherwise disposed of two or more

firearms to another individual, or received two or more firearms

with the intent to transport, transfer, or otherwise dispose of

firearms to another individual.”          USSG § 2K2.1 cmt. n.13(A)(i).

Two, the defendant must have “[known] or had reason to believe

that such conduct would result in the transport, transfer, or

disposal of a firearm to an individual . . . whose possession or

receipt of the firearm would be unlawful; or . . . who intended

to use or dispose of the firearm unlawfully.”             USSG § 2K2.1 cmt.

                                     2
n.13(A)(ii).      Brewington does not dispute that he transferred

the necessary number of firearms, but he argues that there was

insufficient evidence to satisfy the knowledge requirement.

      Having carefully reviewed the record, we agree that the

evidence    before       the     district     court     was     insufficient       to

demonstrate that Brewington knew or had reason to believe that

the   firearms    would     be    possessed    unlawfully,        or     that   their

recipient   intended       to    use   or    dispose       of   them     unlawfully.

Accordingly,     we   vacate     Brewington’s        sentence     and    remand   for

resentencing     without       application    of     the    firearm      trafficking

enhancement.      We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before   this    court    and    argument    would    not   aid    the    decisional

process.

                                                            VACATED AND REMANDED




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