United States v. Durant

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 25, 2005
Charles R. Fulbruge III
Clerk
No. 04-60648
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARIN DWAYNE DURANT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:02-CR-15-1-WS
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Darin Dwayne Durant (“Durant”), a Choctaw Indian, appeals his
conviction and sentence 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 discretion in allowing the
*
Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
No. 04-60648
-2-
prosecutor to ask the victim leading 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. United 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 touch the
victim’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, pursuant 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 the
No. 04-60648
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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. Booker applies to
Durant’s case. Id. 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. See 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.