
    UNITED STATES of America, Plaintiff-Appellee, v. Walter M. STEWART, Jr., Defendant-Appellant.
    No. 04-30005.
    United States Court of Appeals, Ninth Circuit.
    
      Submitted Dec. 7, 2004.
    
    Submission vacated Dec. 9, 2004.
    Resubmitted Feb. 7, 2005.
    Decided Feb. 7, 2005.
    Klaus P. Richter, Esq., USBI-Office of the U.S. Attorney, Billings, MT, for Plaintiff-Appellee.
    Brian Kohn, Billings, MT, for Defendant-Appellant.
    Before: HAWKINS, THOMAS, and MCKEOWN, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

The district court did not abuse its discretion by denying Stewart’s motion for a new trial. Stewart’s claim of ineffective assistance of counsel is inappropriate for resolution on direct appeal. See United States v. Daychild, 357 F.3d 1082, 1095 (9th Cir.2004).

The district court’s upward adjustments pursuant to U.S.S.G. §§ 4A1.3 and 5K2.14 were based on findings not made by the jury and, thus, violate the Sixth Amendment per United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We therefore vacate Stewart’s sentence and remand for resentencing.

Because under Booker the district court may still consider the correct guideline range before imposing a sentence on remand, we take this opportunity to note that the district court misapplied Section 5K2.14. This enhancement should not be based on a defendant’s criminal history or likelihood of recidivism; rather, the district court may increase the sentence “to reflect the nature and circumstances of the offense.” U.S.S.G. § 5K2.14 (emphasis added). Moreover, because drunk driving will always involve endangering the public to some degree, an increase is only appropriate in exceptional circumstances. See, e.g., United States v. Semsak, 336 F.3d 1123, 1126-27 (9th Cir.2003).

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     