                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 25, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-60648
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                        Plaintiff-Appellee,

                              versus

                       DARIN DWAYNE DURANT,

                       Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                    USDC No. 4:02-CR-15-1-WS
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Darin Dwayne Durant (“Durant”), a Choctaw Indian, appeals his

conviction and sentence for abusive sexual conduct of a minor

female Indian while on lands within the confines of the Pearl River

Community of the Choctaw Indian reservations in the Indian Country.

Durant was sentenced to 24 months of imprisonment.     He argues that

the evidence was insufficient to convict him because the testimony

of the victim and her sister was unbelievable. He further contends

that the district court abused its discretion in allowing the


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                                  No. 04-60648
                                       -2-

prosecutor     to    ask   the    victim      leading     questions        on   direct

examination.         Durant      also    asserts        that    his      sentence    is

unconstitutional in light of United States v. Booker, 125 S. Ct.

738 (2005).

     Viewing the evidence in the light most favorable to the

verdict, a rational trier of fact could have found Durant guilty of

the offense charged.          United States v. Villarreal, 324 F.3d 319,

322 (5th Cir. 2003).          The victim’s testimony was corroborated by

her sister, who testified that she observed Durant touch the

victim’s    breasts    and     “private       parts.”         The   jury   is   solely

responsible for determining the weight and credibility of the

evidence.    United States v. Martinez, 975 F.2d 159, 161 (5th Cir.

1992).       Additionally,       in     light      of   the     victim’s     age    and

circumstances of the crime, the district court did not abuse its

discretion by allowing the prosecutor to ask leading questions on

direct examination.        See United States v. Cooper, 606 F.2d 96, 98

(5th Cir. 1979).       Accordingly, Durant’s conviction is AFFIRMED.

     However,       Durant’s     sentence     is    VACATED     and      REMANDED   for

resentencing in light of Booker.               Durant’s sentence was enhanced

two levels, pursuant to U.S.S.G. § 2A3.4(b)(3), based on the

district court’s finding that “the victim was in the custody, care,

or supervisory control of the defendant.”                 Durant’s sentence was

also enhanced two levels based on the district court’s finding that

he obstructed justice.            At sentencing, Durant objected to the

enhancements,       arguing    that     the     facts    used       to   support    the
                           No. 04-60648
                                -3-

enhancements were not submitted to a jury or admitted by him.    He

thus contended that the enhancements violated the Sixth Amendment.

     Booker held that “[a]ny fact (other than a prior conviction)

which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.”   125 S. Ct. at 756.   Booker applies to

Durant’s case.     Id. at 769.   As the Government acknowledges,

resentencing is appropriate in Durant’s case because the record

does not indicate that the district court would have imposed the

same sentence under an advisory regime.      See United States v.

Akpan, ___ F.3d ___, No. 03-20875, 2005 WL 852416 at *12 (5th Cir.

April 14, 2005).   Thus, Durant’s sentence is VACATED and the case

is REMANDED for resentencing.

     AFFIRMED IN PART, VACATED IN PART, REMANDED FOR RESENTENCING.
