                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 03-4662
WILLIAM H. JOHNSON,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Huntington.
                Robert C. Chambers, District Judge.
                             (CR-03-33)

                      Argued: February 24, 2004

                       Decided: April 7, 2004

       Before WILKINS, Chief Judge, and WIDENER and
                  SHEDD, Circuit Judges.



Vacated and remanded by unpublished per curiam opinion.


                             COUNSEL

ARGUED: Jonathan David Byrne, Office of the Federal Public
Defender, Charleston, West Virginia, for Appellant. Stephanie Lou
Haines, Assistant United States Attorney, Huntington, West Virginia,
for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public
Defender, David R. Bungard, Assistant Federal Public Defender,
Charleston, West Virginia, for Appellant. Kasey Warner, United
States Attorney, Huntington, West Virginia, for Appellee.
2                      UNITED STATES v. JOHNSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   William H. Johnson pled guilty to one count of possession with
intent to distribute crack cocaine and was sentenced to a term of 151
months of imprisonment followed by a term of three years of super-
vised release. On appeal, Johnson raises the single issue of whether
the district court erred in computing his criminal history score. For the
reason set forth below, we vacate Johnson’s sentence and remand for
resentencing.

   The district court assigned Johnson two criminal history points for
two prior sentences he had received for separate convictions for flee-
ing from a law enforcement officer. Both of those sentences were
imposed under West Virginia Code Ann. § 61-5-17(d), which makes
non-vehicular flight from a law enforcement officer for the purpose
of avoiding a lawful arrest a misdemeanor.1 For the first fleeing con-
viction, which involved his flight from law enforcement officers as
they attempted to arrest him for firing a weapon, Johnson was fined
$50. For the second fleeing conviction, which involved his flight from
law enforcement officers as they attempted to arrest him for trespass-
ing, Johnson was sentenced to four days in jail.

   "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). However, U.S.S.G. § 4A1.2(c)(1)
creates a narrow exception for certain prior misdemeanor and petty
offense sentences which meet the following three conditions: (1) the
prior sentence must be listed in § 4A1.2(c)(1) or be similar to a listed
    1
    Under different circumstances, the offense of fleeing from a law
enforcement officer is a felony. See §§ 61-5-17(g)–(i). For purposes of
this opinion, we refer only to misdemeanor fleeing under § 61-5-17(d).
                      UNITED STATES v. JOHNSON                        3
offense; (2) the prior sentence must have been for a term of less than
one year of probation or 30 days of imprisonment; and (3) the prior
sentence must not be similar to the instant offense (i.e., the offense
for which the defendant is then being sentenced). If a prior sentence
meets these three conditions, it is excluded from the criminal history
calculation.

   Johnson contends that his sentences for the fleeing offenses should
have been excluded under § 4A1.2(c)(1). The offense of fleeing is
dissimilar to distribution of crack cocaine (the instant offense), and
Johnson’s sentences for fleeing are below the terms specified in
§ 4A1.2(c)(1). Although fleeing is not a listed offense under
§ 4A1.2(c)(1), Johnson argues that fleeing is "similar" to the listed
offense of hindering or failing to obey a police officer.2 If Johnson is
correct, then the district court erred in counting the fleeing sentences
in his criminal history. This is a legal issue, and we therefore review
the district court’s determination de novo. See United States v.
Caplinger, 339 F.3d 226, 233 (4th Cir. 2003).

   In Harris, we recognized that the Guidelines do not define "simi-
lar" for purposes of § 4A1.2(c)(1), and we adopted a "similar ele-
ments" test to determine whether two offenses are "similar." 128 F.3d
at 854. We stated that "when two offenses are similar, their essential
elements are ‘nearly corresponding’ or ‘resembling in many
respects.’" Id. Under that test, we held that a prior sentence for the
offense of selling alcohol to a minor was properly counted in comput-
ing the defendant’s criminal history because the offense is not listed
in § 4A1.2(c)(1) and, more pertinent, the offense does not "share com-
mon elements with any of the listed offenses." 128 F.3d at 855. We
noted that the elements of the offense of selling alcohol to minors
(under the applicable state law) are (1) selling (2) an alcoholic bever-
age (3) to a person under the age of 21, and that "[n]one of the listed
offenses in § 4A1.2(c) have elements resembling this combination;
none involve selling alcohol; none involve transactions with minors."
128 F.3d at 855.
  2
   Johnson does not argue, as he did below, that fleeing is also similar
to the listed offense of resisting arrest.
4                       UNITED STATES v. JOHNSON
   The parties agree that under the circumstances of this case we
should look to West Virginia law to define the elements of the
offenses of fleeing and hindering. These offenses are codified in sepa-
rate subsections of West Virginia Code Ann. § 61-5-17 ("Crimes
Against Public Justice").3 The elements of the offense of hindering
are: (1) a person by threats, menaces, acts, or otherwise (2) forcibly
or illegally hinders or obstructs (3) any law enforcement officer acting
in his or her official capacity. The elements of the offense of fleeing
are: (1) a person 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.

   Johnson contends that a comparison of these elements demon-
strates their similarity, and he points to State v. Jarvis, 310 S.E.2d
467, 468 (1983), where the Supreme Court of Appeals of West Vir-
ginia held: "Any person, upon being advised by a police officer that
he is being arrested pursuant to a warrant, who flees in an automobile
or otherwise and thereby avoids immediate arrest, is guilty of illegally
hindering an officer of this state in the lawful exercise of his official
duty, in violation of W. Va. Code, 61-5-17." The United States count-
ers that fleeing and hindering are not "similar" for two reasons. First,
the United States asserts that "the element requiring intentional flight
by a defendant to be guilty of fleeing is quintessential to the offense.
However, this element has no similar counterpart in the offense of
hindering an officer. Therefore, this requirement distinguishes the two
offenses and establishes their uniqueness." Brief of Appellee, at 9.
Second, the United States asserts that "the separate treatment given to
the offense of fleeing and the offense of hindering an officer, evi-
    3
   Section 61-5-17(a) defines hindering: "Any person who by threats,
menaces, acts or otherwise, forcibly or illegally hinders or obstructs . . .
any law-enforcement officer . . . acting in his or her official capacity is
guilty of a misdemeanor. . . ." Section 61-5-17(d) defines fleeing: "Any
person who intentionally flees . . . by any means other than the use of
a vehicle from any law-enforcement officer . . . acting in his or her offi-
cial capacity who is attempting to make a lawful arrest of the person, and
who knows or reasonably believes that the officer is attempting to arrest
him or her, is guilty of a misdemeanor. . . ."
                       UNITED STATES v. JOHNSON                        5
denced by their placement in two distinct subsections of the applica-
ble statute, suggests that under West Virginia law, these two offenses
are not similar." Id. at 9 10.4

   While the differences between the essential elements of these
offenses are readily apparent, utilizing the Harris analysis we need
not determine whether those elements are identical; instead, our
inquiry is whether those elements are "nearly corresponding" or "re-
sembling in many respects." 128 F.3d at 854. We conclude that for
purposes of § 4A1.2(c)(1) the essential elements sufficiently resemble
each other so as to make Johnson’s fleeing convictions excludable.
Both offenses are "crimes against public justice," and they share the
essential elements of action directed toward, or in response to, a law
enforcement officer acting in his or her official capacity that is
designed to thwart the officer from performing a law enforcement
duty. The similarity of these two offenses is best illustrated by the
holding in Jarvis that specifically equates the conduct of fleeing with
hindering under West Virginia law.

   Because of our conclusion, Johnson should not have received crim-
inal history points for his fleeing sentences. We therefore vacate the
judgment and remand for the district court to resentence Johnson in
accordance with this opinion.

                                        VACATED AND REMANDED
  4
   At the time Jarvis was decided, § 61-5-17 did not specifically crimi-
nalize fleeing. Since Jarvis, the statute has been amended several times,
and the fleeing subsection was added during one of these amendments.
We see no indication that the fleeing amendment was designed to abro-
gate the holding in Jarvis.
