                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4076



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


LARRY C. RICHARDSON, a/k/a Too,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-02-62; CR-03-51)


Submitted:   April 20, 2005                 Decided:    May 31, 2005


Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


John J. Pizzuti, MCCAMIC, SACCO & PIZZUTI, P.L.L.C., Wheeling, West
Virginia, for Appellant.      Thomas E. Johnston, United States
Attorney, John C. Parr, Assistant United States Attorney, Wheeling,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Larry C. Richardson appeals his convictions and sentence

following a guilty plea to conspiracy to engage in interstate

travel in aid of a racketeering enterprise, in violation of 18

U.S.C.    §§    1952(a)(3),   371    (2000),   and   use   of   telephone   to

facilitate the distribution of heroin, 21 U.S.C. §§ 843(b), (d)(1)

(2000).     We affirm Richardson’s convictions, vacate the sentence

imposed by the district court, and remand for reconsideration of

the sentence.

               Richardson contends that the district court erred in

calculating the drug amounts attributable to him at sentencing.

Specifically, he complains that distribution of crack should not

have been included as part of the relevant conduct because it was

not part of the same course of conduct or a common scheme or plan

as his heroin distribution.

               A district court’s determination of the drug quantity

attributable to a defendant is a factual finding reviewed for clear

error.    United States v. Randall, 171 F.3d 195, 210 (4th Cir.

1999). The Government bears the burden of proving relevant conduct

by a preponderance of the evidence.          United States v. Cook, 76 F.3d

596, 604 (4th Cir. 1996).       In calculating drug amounts, the court

may   consider      any   relevant    information,     provided    that     the

information has sufficient indicia of reliability to support its

accuracy.       United States v. Uwaeme, 975 F.2d 1016, 1021 (4th Cir.


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1992).    Under the guidelines, drug quantities not specified in the

counts of conviction are considered relevant conduct when they are

part of the same course of conduct or common plan or scheme.                         U.S.

Sentencing Guidelines Manual § 1B1.3(a)(2) (2002).                         Richardson’s

crack    distribution,       which       involved     the     same     customers      he

distributed heroin to contemporaneously, is similar enough in

degree and regularity to include crack distribution in Richardson’s

relevant conduct.       See USSG § 1B1.3, comment. (n.9(B)).                    We find

that the district court did not clearly err in determining the

relevant    conduct     amount      of     drug    quantities      attributable       to

Richardson including activity involving the distribution of crack.

            Richardson       next    contends       that     the     district      court

erroneously enhanced his offense level for use of a firearm during

the     course    of   his    illegal       activities,       pursuant        to     USSG

§ 2D1.1(b)(1). Richardson’s argument primarily relies on his claim

that the Government’s witnesses provided unreliable testimony.

            The district court’s enhancement under § 2D1.1(b)(1) is

reviewed for clear error.            United States v. McAllister, 272 F.3d

228, 234 (4th Cir. 2001).            “In order to prove that a weapon was

present,    the    Government       need    show    only    that     the    weapon   was

possessed    during    the    relevant       illegal       drug    activity.”        Id.

Further, witness credibility is not generally subject to review by

this court.       United States v. Saunders, 886 F.2d 56, 60 (4th Cir.

1989).


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            At sentencing, Frankie Cosco, William Lynch, Kenneth

Nestor,    and    Jason     Thorn   all   testified           that   they   witnessed

Richardson possess a firearm during illegal drug transactions. The

district court found the testimony of all four witnesses to be

credible.    Our review of the record leads us to conclude that the

district court did not clearly err in assessing Richardson a two-

level enhancement for possession of a firearm.

            Richardson argues that he should be resentenced in light

of Blakely v. Washington, 124 S. Ct. 2531 (2004), because his

sentence was enhanced on judicially found facts.                       Specifically,

Richardson       objects    to   the   inclusion         of    crack   distribution

activities as relevant conduct at sentencing and the application of

a   two-level     firearm     enhancement      pursuant         to   USSG   §   2D1.1.

Following the Supreme Court’s decisions in Blakely and United

States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), this court

held, in United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir.

2005), that a sentence that is impermissibly enhanced based on

facts found by the court constitutes plain error that affects the

defendant’s substantial rights and warrants vacating the sentence

and remanding for resentencing under Booker.                   Because Richardson’s

enhancement occurred under the mandatory guidelines scheme and

affected    his    substantial      rights,    as   it    resulted     in   a   higher

guidelines range, the district court committed plain error.                       See

Hughes, 401 F.3d at 547-48.


                                       - 4 -
            We accordingly affirm Richardson’s convictions, vacate

the   sentence   imposed   by   the    district   court,   and   remand    for

resentencing under Hughes.      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 IN PART, AND REMANDED




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