                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4259



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JERMAINE SILAS WHITE,

                                             Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (CR-03-628)


Submitted:   September 28, 2005           Decided:   October 13, 2005


Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Strom Thurmond, Jr., United States Attorney,
John C. Duane, Assistant United States Attorney, Charleston, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Jermaine Silas White appeals his conviction and sentence

on a two-count indictment charging him with being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2) (Count One), and possession with intent to distribute

2.66   grams   of   crack   cocaine,   in   violation   of   21   U.S.C.   §§

841(a)(1), 841(b)(1)(C).      After White’s guilty plea to Count One,

Count Two was dismissed.       The district court sentenced White on

Count One to a term of 96 months’ imprisonment, followed by a

three-year term of supervised release.         On appeal, White advances

two challenges to the district court’s four-level enhancement of

his sentence for possession of a firearm in connection with another

felony offense, pursuant to U.S. Sentencing Guidelines Manual,

§ 2K2.1(b)(5) (2003), first to the propriety of the application of

the enhancement under the Guidelines, and second to the district

court’s application of the enhancement as a violation of White’s

Sixth Amendment rights. We have reviewed the record, together with

White’s claims on appeal, and find that White’s sentence must be

vacated pursuant to United States v. Booker, 125 S. Ct. 738 (2005).

           As a preliminary matter, we find that the enhancement

applied by the district court to White’s case was proper under the

Guidelines and the law of this circuit.            White challenges his

sentence on the ground that it “appears” as though the district

court relied on the legal standard employed by the Fifth Circuit in


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United States v. Condren, 18 F.3d 1190 (5th Cir. 1994), and similar

cases,   that    hold    that   mere     possession     of   the   firearm   is   a

sufficient basis on which to apply the enhancement, rather than the

standard followed in this circuit, as reaffirmed in United States

v. Blount, 337 F.3d 404 (4th Cir. 2003).                     The basis for his

challenge is that Condren and similar cases were cited by the

parties during the sentencing hearing, and the district court found

the enhancement to be appropriate under all the cases discussed.

           Having reviewed the record, we conclude the undisputed

evidence supported the district court’s enhancement under the

Guidelines      in   White’s     case.        Upon    seeing    police   officers

approaching his residence, White ran inside the house, donned a

sweatshirt, emerged through a side door several seconds later and

was pursued by the officers on foot for 300 yards, prior to

throwing the firearm at issue onto the roof of a neighboring

residence.      After apprehending White, the officers discovered a

quantity   of    crack    in    his   pocket.        These   facts   support   the

conclusion that White simultaneously possessed both the firearm and

the crack for at least 300 yards while attempting to evade law

enforcement, and used the firearm to embolden him during the

commission of the crime of possession of the crack, and to protect

his person and property, including the crack.                  We find such facts

constitute evidence of a nexus between the firearm and the drugs

sufficient to support the district court’s application of the


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enhancement under the Guidelines, as set forth in Blount. See also

United States v. Nale, 101 F.3d 1000, 1003-1004 (4th Cir. 1996)

(interpreting the “in connection with” standard applicable in the

instant case).*

            White’s second challenge to the enhancement is advanced

under Blakely v. Washington, 542 U.S. 296 (2004). After the filing

of the briefs in this case, the Supreme Court rendered its decision

in Booker.       Based on Booker, we find that the district court’s

enhancement      of    White’s     sentence        based    upon   facts   found    by   a

preponderance         of   the   evidence         and    not   established   beyond      a

reasonable doubt was plain error.                       Booker, 125 S. Ct. at 756;

United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).

            As White advances no challenge to his conviction, we

affirm    his    conviction,       vacate         his    sentence,   and   remand    for

resentencing in accordance with those factors set forth in 18

U.S.C. § 3553(a) (2000), and viewing the Sentencing Guidelines as

advisory,       consistent       with   the       Supreme      Court’s   decision    and

directive in Booker.             See Booker, 125 S. Ct. at 764-65, 767;

Hughes, 401 F.3d at 546-47. We dispense with oral argument because

the   facts and legal contentions are adequately                     presented     in the




      *
      We note that this court’s decision in Nale was among the
cases cited by the parties during sentencing on which the district
court relied in rendering its decision on the enhancement.

                                              4
materials   before   the   court   and   argument   would   not   aid   the

decisional process.



                                                      AFFIRMED IN PART,
                                                       VACATED IN PART,
                                                           AND REMANDED




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