                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4939



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


WILLIE K. PARSONS,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-04-118)


Submitted:   March 30, 2005                  Decided:   May 9, 2005


Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Michael L. Desautels, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, Monica K. Schwartz, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Willie K. Parsons pled guilty to possession of a firearm

by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2)(2000).    He   appeals   his   twenty-four    month   sentence,

contending that the district court erred in finding that he used

the firearm in connection with another felony offense and enhancing

his sentence accordingly.     See U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(5) (2000).     We affirm the conviction and uphold the

district court’s finding that Parsons used the firearm during the

felony of wanton endangerment. However, we vacate the sentence and

remand for resentencing consistent with United States v. Booker,

125 S. Ct. 738 (2005).

          Parsons and his girlfriend, Cathy Eagle, had a prolonged

argument that resulted in Eagle leaving their mobile home and

getting into her truck parked next to the home.          An intoxicated

Parsons followed Eagle and slashed her tires, causing them to

flatten and prompting Eagle to leave her truck and go inside the

mobile home next door that belonged to her son.        Parsons went back

into his mobile home and retrieved a 30-30 high powered rifle.

Standing on his front porch, Parsons fired two shots into the

truck, striking the rear quarter panel and the gas tank, causing a

large gasoline leak.     The truck was parked in close proximity to

several homes when Parsons fired the shots, but no people were




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outside.      Eagle and her son stood in the doorway of the son’s

mobile home and watched Parsons shoot her truck.

             West Virginia charged Parsons with wanton endangerment in

violation of W. Va. Code Ann. § 61-7-12 (Michie 2000), but dropped

the charge in favor of federal prosecution. Parsons pled guilty to

possession of a firearm by a convicted felon.                       The probation

officer      recommended   a    four-level          enhancement    under    USSG   §

2K2.1(b)(5) for use of a firearm in connection with another felony,

that of wanton endangerment under W. Va. Code Ann. § 61-7-12.

Parsons objected, arguing that no substantial risk existed to any

specific person because nobody was outside when he fired the rifle.

The district court found the enhancement warranted because firing

a   rifle    in   a   densely   populated      residential        area   created   a

substantial risk of death or serious bodily injury to people in the

area, whether or not Parsons was shooting at any particular person,

and sentenced him to twenty-four months imprisonment and three

years   of    supervised    release.          The    court    overruled    Parson’s

objection that his sentence violated Blakely v. Washington, 124 S.

Ct.   2531    (2004),   because   it    was    based     on   judge-found    facts.

Parsons timely appeals.

             The district court’s determination that Parsons’ conduct

amounted to wanton endangerment under W. Va. Code Ann. § 61-7-12 is

a legal one that we review de novo.                 United States v. Daughtrey,

874 F.2d 213, 217 (4th Cir. 1989).                   The statute provides that


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“[a]ny person who wantonly performs any act with a firearm which

creates a substantial risk of death or serious bodily injury to

another shall be guilty of a felony.”          W. Va. Code Ann. § 61-7-12.

Relying on cases interpreting a similar provision of Tennessee law,

because no cases interpret the West Virginia statute, Parsons

argues that a “substantial” risk must be an actual risk to an

identifiable person, not merely a possible risk.            See, e.g., State

v. Payne, 7 S.W.3d 25 (Tenn. 1999) (people must be in a “zone of

danger” in which “a reasonable probability of danger existed” to

constitute reckless endangerment); State v. Fox, 947 S.W.2d 865

(Tenn.   Crim.    App.    1996)   (reversing    conviction      for   reckless

endangerment where defendant fired gun in residential area with no

nearby people).

           While Parsons’ arguments are not patently unreasonable,

the   district    court    correctly   concluded     that    Parsons    acted

recklessly because firing a rifle in a residential area is an

inherently   dangerous     activity,   magnified    in   this    instance   by

Parsons’ intoxication, anger, and lack of foresight.                   Parsons

argued that shooting the car did not pose any danger to a person,

but when he shot the car he hit the gasoline tank and caused a

large gasoline leak.      Any spark could have caused major damage to

the three nearby mobile homes and serious injury to Eagle and her

son, as well as to anyone in one of the nearby homes.




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          Parsons also claims that the district court improperly

enhanced his sentenced because the felony enhancement was not

admitted, found by a jury, or proven beyond a reasonable doubt, in

violation of Booker.    In Booker, the Supreme Court concluded that

the mandatory manner in which the federal sentencing guidelines

required courts to impose sentencing enhancements based on facts

found by the judge by a preponderance of the evidence violated the

Sixth Amendment.    Booker, 125 S. Ct. at 746, 750.

          Parsons made a timely objection to the enhancement,

citing Blakely.    Without the enhancement, Parsons would have faced

a sentencing range of twelve to eighteen months.      The enhancement

increased that range to twenty-one to twenty-seven months, and he

received a twenty-four month sentence.    Parsons did not admit the

facts used to enhance his sentence, and they were neither presented

to a jury nor found to exist beyond a reasonable doubt.     “Any 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.”     Booker,

125 S. Ct. at 756. Parsons’ sentence violated the Sixth Amendment,

and we vacate the judgment of the district court and remand for

resentencing.

          Finally, Parsons claims that after Blakely and Booker the

district court lacked statutory authority to impose a term of


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supervised release.        This argument is meritless.           See Booker, 125

S. Ct. at 764-68.       Because Parsons’ sentence is vacated in light of

Booker, however, the district court may, of course, reconsider the

length    of     the    supervised     release     term   to     be    imposed     on

resentencing.

               We affirm the conviction and uphold the district court’s

finding that Parsons used the firearm during the felony of wanton

endangerment.       We vacate the sentence and remand for resentencing

consistent with Booker. 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




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