                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 04-4195



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

           versus


MAURICE A. PARKER,

                                                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR-
01-338)


Argued:   November 30, 2005                 Decided:   January 11, 2006


Before WILKINS, Chief Judge, and LUTTIG and WILLIAMS, Circuit
Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


ARGUED: Mary Elizabeth Davis, DAVIS & DAVIS, Washington, D.C., for
Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Christopher M. Davis, DAVIS & DAVIS, Washington, D.C., for
Appellant. Allen F. Loucks, United States Attorney, Ari S. Casper,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

     Maurice      A.   Parker    appeals   his   conviction   for    felon   in

possession of a firearm, 18 U.S.C.A. § 922(g)(1) (West 2000), and

his sentence of seventy-eight months’ imprisonment.                 Because we

conclude that any error the district court might have made in

admitting prior-act evidence was harmless, we affirm Parker’s

conviction.     Parker’s sentence, however, was based on facts not

found by the jury; therefore, we vacate his sentence and remand for

resentencing.



                                      I.

     On   April    24,   2001,    Corporal   Richard   Horn   of    the   Prince

George’s County (Maryland) Police Department was patrolling the

Glenarden Apartment complex in an unmarked car when a white 1990

Buick Regal with Pennsylvania tags passed him.                Because he was

looking for vehicles with out-of-state tags that had not been

registered in Maryland, Cpl. Horn ran a computer check on the tags

and learned that the car was reported stolen in Pennsylvania. Cpl.

Horn and another officer at the scene stopped the car and arrested

the driver, Maurice Parker.          As Cpl. Horn searched the car, he

found a loaded Norinco 7.62 semiautomatic firearm underneath the

front seat.     On June 20, 2001, a grand jury for the District of

Maryland returned a one-count indictment against Parker for felon

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


                                       3
     Prior to Parker’s trial, the Government notified the district

court and Parker’s counsel that it would seek to introduce evidence

establishing that Parker stole a firearm several years earlier.1

The evidence consisted of a security video tape at the liquor store

where Parker once worked purporting to show that Parker had stolen

a firearm and testimony from the store’s manager, Peter Watts. The

Government argued that this evidence would help show that Parker

was in knowing possession of the firearm at the time of his arrest

and that the gun was not in the car because of an accident or

mistake.    Parker objected to the evidence.

     At trial, Cpl. Horn testified to the circumstances of Parker’s

arrest, and the car’s rightful owner, Jamie Horn, also testified

that she did not own a gun and had not lent her car to anyone who

would have put a gun in the car.2       In addition, the district court

overruled    Parker’s   objection   to    Watts’s    testimony   and   the

introduction of the video tape.         Watts testified that he kept a

firearm on a shelf near the register for additional security.           In

February 1998, Watts noticed that the firearm was missing, so he

reviewed the store’s security video tape.           The video tape, which

was played to the jury, showed Parker standing behind the register

and reaching down to the area where the firearm was kept.          Parker


     1
      The gun stolen from the store was not the gun found in the
Buick.
     2
      It is unclear whether Cpl. Richard Horn and Jamie Horn are
related.

                                    4
then took an unidentified object, lifted up the front of his t-

shirt, tucked the object in his waistband, and put his shirt back

down.   Immediately after the jury received this evidence, the

district court instructed the jury that the evidence could only be

used to show Parker’s state of mind, i.e., his intent to possess

the firearm in the Buick, and that it could not be used as

substitute for proof that Parker committed the crime for which he

was being tried.   The district court repeated a similar limiting

instruction in its final charge to the jury.   The jury returned a

guilty verdict, and the district court sentenced Parker to seventy-

eight months’ imprisonment.   Parker noted a timely appeal.



                                II.

     Parker argues that the district court erred in admitting the

evidence that Parker took the gun from the liquor store.   We review

the district court’s decision to admit evidence under Rule 404(b)

for an abuse of discretion.   See United States v. Queen, 132 F.3d

991, 995 (4th Cir. 1997).

     “Rule 404(b) . . . prohibits the introduction of ‘[e]vidence

of other crimes, wrongs, or acts . . . to prove the character of a

person in order to show action in conformity therewith.’”     United

States v. Van Metre, 150 F.3d 339, 349 (4th Cir. 1998) (quoting




                                 5
Fed. R. Evid. 404(b)).3     The rule does, however, permit such

evidence to be introduced for other purposes, such as “proof of

motive,   opportunity,   intent,       preparation,   plan,   knowledge,

identity, or absence of mistake.”        Fed. R. Evid. 404(b).    If the

prior act evidence was erroneously admitted, the district court’s

evidentiary ruling “[is] subject to harmless error review.” United

States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997).

     In Queen, we articulated a four-prong test for determining the

admissibility of prior-act evidence: “(1) the prior-act evidence

must be relevant to an issue other than character, such as intent;

(2) it must be necessary to prove an element of the crime charged;

(3) it must be reliable; and (4) as required by Federal Rule of

Evidence 403, its probative value must not be ‘substantially

outweighed’ by its prejudicial nature.”       Id. at 995.     We need not

decide whether the district court erred in admitting the evidence

regarding Parker’s prior gun possession.         Even if the district


     3
      Rule 404(b) states in full:

     Evidence of other crimes, wrongs, or acts is not
     admissible to prove the character of a person in order to
     show action in conformity therewith. It may, however, be
     admissible for other purposes, such as proof of motive,
     opportunity, intent, preparation, plan, knowledge,
     identity, or absence of mistake or accident, provided
     that upon request by the accused, the prosecution in a
     criminal case shall provide reasonable notice in advance
     of trial, or during trial if the court excuses pretrial
     notice on good cause shown, of the general nature of any
     such evidence it intends to introduce at trial.

Fed. R. Evid. 404(b).

                                   6
court so erred, “we do not believe that its erroneous admission

warrants reversal of . . . [Parker’s] conviction[] because the jury

was presented with overwhelming evidence of his guilt.”      United

States v. Aramony, 88 F.3d 1369, 1379 (4th Cir. 1996).    The jury

heard evidence that Parker took Jamie Horn’s car and that Parker

was the only person in the car when Cpl. Horn stopped him.    Horn

did not own a gun, and she did not lend her car to anyone who would

have put a gun there. Furthermore, immediately after the prior-act

evidence had been presented -- and again in the final charge -- the

district court gave limiting instructions to the jury about the use

of the prior-act evidence.   In light of the other evidence showing

that the presence of the gun was not a mistake or accident, we are

convinced that any error in admitting the prior act evidence did

not “substantially sway[]” the jury’s verdict. Brooks, 111 F.3d at

371 (internal quotation marks omitted).     Because any error was

harmless, we affirm Parker’s conviction.



                               III.

     Parker also contends that he is entitled to be resentenced in

light of United States v. Booker, 125 S. Ct. 738 (2005), because

his sentence was enhanced based on facts not found by the jury in

violation of his Sixth Amendment rights.     The jury found Parker

guilty of possessing the firearm, but the district court found that

Parker possessed the gun in connection with another felony --


                                 7
possessing a stolen car -- and that Parker had obstructed justice

by escaping from home electronic monitoring.            Because Parker did

not object to the district court making these factual findings, we

review for plain error.       United States v. Hughes, 401 F.3d 540, 547

(4th Cir. 2005).        Without these judge-found facts, Parker would

have been assigned an offense level of fourteen, and, with a

criminal history category of VI, he would have been sentenced

within a guideline range of 37-46 months’ imprisonment.               See U.S.

Sentencing Guidelines Manual (2001).           Based on these facts, Parker

was assigned an offense level of twenty and was sentenced to

seventy-eight months’ imprisonment.

      Because Parker was sentenced to a term of imprisonment that

exceeded the maximum authorized by the jury verdict alone, Parker’s

Sixth Amendment rights were violated. See United States v. Booker,

125   S.   Ct.   738,   756   (2005)   (“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.”).         Accordingly, “we conclude that

the district court plainly erred in imposing a sentence on [Parker]

that exceeded the maximum allowed based on the facts found by the

jury alone.”4      Hughes, 401 F.3d at 547.            We therefore vacate


      4
      “We of course offer no criticism of the district judge, who
followed the law and procedure in effect at the time of [Parker’s]
sentencing.”   United States v. Hughes, 401 F.3d 540, 545 n.4

                                       8
Parker’s sentence and remand his case to the district court for

resentencing.   In determining Parker’s sentence on remand,

     the district court should first determine the appropriate
     sentencing range under the Guidelines, making all factual
     findings appropriate for that determination. 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), and then impose a sentence.      Id.   If that
     sentence falls outside the Guideline range, the court
     should explain its reasons for the departure, as required
     by 18 U.S.C. § 3553(c)(2). Hughes, 401 F.3d at 546. The
     sentence must be “within the statutorily prescribed range
     and . . . reasonable.” Id. at 547.

United States v. Gray, 405 F.3d 227, 244 n.10 (4th Cir. 2005).



                                IV.

     For the foregoing reasons, we affirm Parker’s conviction.   We

also vacate his sentence and remand for resentencing.



                                                 AFFIRMED IN PART,
                                                  VACATED IN PART,
                                                      AND REMANDED




(2005).

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