                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4339



UNITED STATES OF AMERICA,

                                            Plaintiff -   Appellee,

          versus


DAVID DEWAYNE HARPER,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-03-58)


Submitted:   May 25, 2005                   Decided:   July 7, 2005


Before LUTTIG and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished per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


Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Jerry W. Miller, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              David Dewayne Harper appeals his fifty month sentence,

imposed after he pled guilty to possession of a firearm by a

prohibited person in violation of 18 U.S.C. § 922(g) (2000),

resisting a federal law enforcement officer in violation of 18

U.S.C. § 111(a) (2000), and possession of marijuana in violation of

21   U.S.C.    §       844(a)     (2000).      Harper      does    not   challenge   his

conviction on appeal.

              Harper argues the district court erred when it increased

his base offense level after finding he used one of the firearms

recovered from his vehicle “in connection with another felony

offense.” U. S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2003),

provides for a four-level increase if the firearm was “used or

possessed     .    .    .    in   connection    with    another      felony   offense.”

“Felony offense” is defined to mean “any offense (federal, state,

or local) punishable by imprisonment for a term exceeding one year,

whether   or      not    a    criminal      charge   was    brought,     or   conviction

obtained.”        USSG § 2K2.1, comment. (n.7).

              The Government has the burden of proving the necessary

facts by a preponderance of the evidence.                           United States v.

Garnett, 243 F.3d 824, 828 (4th Cir. 2001).                       Factual findings are

reviewed for clear error.                United States v. Daughtrey, 874 F.2d

213, 217 (4th Cir. 1989).             Clear error occurs when the court, upon

reviewing the record as a whole, is left with the “‘definite and


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firm conviction that a mistake has been committed.’”                          United

States v. Powell, 124 F.3d 655, 667 (5th Cir. 1997) (quoting United

States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).                     We

have reviewed the record and conclude there was sufficient evidence

for   the   district   court        to   find    Harper    used   the    firearm   in

connection    with   the     felony      offense   of     attempted     first-degree

murder.      See   Tenn.     Code    Ann.   §    39-13-202(a)(2)        (2002).    We

therefore conclude Harper’s argument is without merit.

             Harper’s sentence, however, violated the rule announced

in United States v. Booker, 125 S. Ct. 738 (2005).1                        In United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005), we held that

when a sentence calculated under the Sentencing Guidelines exceeds

the maximum sentence authorized by the facts found by the jury

alone, the defendant could demonstrate plain error that warranted

resentencing under Booker.               Because it is undisputed that the

district court made factual determinations beyond facts Harper

admitted to that increased his sentence, Harper is entitled to

resentencing.      See id.    Accordingly, we affirm Harper’s conviction

but vacate his sentence and remand for resentencing “consistent




      1
      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 Harper’s sentencing.

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with the remedial scheme set forth in Justice Breyer’s opinion for

the Court in Booker.”2   Id. at 544.

          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 AND REMANDED IN PART




     2
      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 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.

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