* Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

May 25, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 se ntence 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 discreti on in allowing theNo. 04-60648

-2-

prosecutor to ask the victimleading 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. U nited 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 to uch the

vic tim’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, pursuan t 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 theNo. 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. B ooker applies to

Durant’s case. I d. 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. S ee 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.