UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4501

NAKEO T. VANCE,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Greenville.

Henry M. Herlong, Jr., District Judge.

(CR-99-987)

Submitted: January 10, 2001

Decided: February 2, 2001

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

David W. Plowden, Assistant Federal Public Defender, Greenville,

South Carolina, for Appellant. J. Rene Josey, United States Attorney,

E. Jean Howard, Assistant United States Attorney, Greenville, South

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Nakeo T. Vance appeals his sentence imposed following his guilty

plea to being a felon in possession of a firearm. Specifically, Vance

asserts that the district court erred in enhancing his offense level

under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (1998) and

in calculating the extent of an upward departure for the enhanced dangerousness of his offense. See USSG § 2K2.1, comment. (n.16). Finding no error, we affirm. 

The undisputed facts are set forth in the Presentence Investigation

Report. At approximately 2:30 in the morning of August 13, 1999,

officers were called to a Waffle House to disperse an unruly crowd.

Upon arrival, the officers noticed approximately one hundred young

adults outside and a crowd of approximately fifteen to twenty people

fighting. Vance was one of the people fighting. During this altercation, Vance retrieved a pistol from his car and fired approximately six

rounds away from the crowd. After officers ordered Vance to drop the

weapon, Vance fled on foot and was observed discarding the weapon.

Vance eventually surrendered after a brief foot pursuit. 

A sentencing court should apply the four-level enhancement under

§ 2K2.1(b)(5) if the Defendant used or possessed the firearm in connection with another felony offense. Here, the district court based its

enhancement on the finding that Vance had committed "resisting

arrest with a deadly weapon," a felony under South Carolina law.*

Vance contends that there was insufficient evidence that he used a

*Alternatively, the district court based the enhancement on the conclusion that Vance had committed the South Carolina felony of "unlawfully

carrying a pistol." Vance argues that "another felony offense" under the

guidelines does not include firearms possession offenses. See USSG

§ 2K2.1, comment. (n.18). Thus, Vance contends that, because unlawful

carrying of a pistol is merely a firearms possession offense, the enhancement was improper. The Government does not address this argument and

apparently concedes that unlawful carrying of a pistol was not a sufficient offense to justify the four-level enhancement. 

2 UNITED STATES v. VANCE
deadly weapon in resisting efforts to arrest him. He asserts that the

fact that he had a weapon in his hand during part of his flight was

insufficient to show that he "used" the weapon under the meaning of

the South Carolina statute. Vance relies on the Supreme Court’s holding in Bailey v. United States, 516 U.S. 137, 148 (1995), that "use"

of a firearm requires "active employment" under a specific federal

firearms statute. 

We find that, even under Bailey, Vance "used" the firearm during

his flight from police. Bailey held that clear examples of use included

"brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm." Id. Here, Vance fled

from police holding a firearm in his hand, from which he had recently

shot approximately six bullets. While Vance eventually dropped his

weapon, Vance was armed and apparently dangerous during part of

the foot chase. This evidence supports the conclusion that Vance was

displaying, if not brandishing, a firearm. In addition, the "use" was in

connection with his resisting arrest, because officers in pursuit must

treat an armed fugitive with greater caution than an unarmed one.

Accordingly, the district court did not err in concluding that Vance

had committed the South Carolina crime of "resisting arrest with a

deadly weapon." 

Vance next argues that the district court did not sufficiently explain

the extent of its upward departure. The extent of a departure is

reviewed for reasonableness under an abuse of discretion standard.

Koon v. United States, 518 U.S. 81, 100 (1996) (review of departures

generally). The district court departed seven offense levels based on

the substantial risk of death or bodily injury caused by the underlying

offense. USSG § 2K2.1, comment. (n.16). However, the district court

did give reasons for its seven-level departure, namely, the "enhanced

dangerousness of the situation" when Vance discharged his gun six

times in the vicinity of a crowd of up to one hundred people. (J.A. at

27.) Further, the court noted that shooting a gun in a "melee" escalates

the situation to the point where someone might return gunfire. In light

of the undisputed facts of the underlying situation, the district court’s

departure to a sentence well under the maximum for the offense was

not an abuse of discretion. 

Accordingly, we affirm Vance’s sentence. We dispense with oral

argument, because the facts and legal contentions are adequately preUNITED STATES v. VANCE 3
sented in the materials before the court and argument would not aid

the decisional process.

AFFIRMED

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