United States v. Hardy ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4110
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES EDWARD HARDY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-02-263)
Submitted: June 19, 2003 Decided: June 24, 2003
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William C. Ingram,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Robert A.J.
Lang, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Edward Hardy, Jr., pled guilty to possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1)
(2000), and was sentenced to a term of sixty-five months
imprisonment. On appeal, he challenges the four-level enhancement
he received for using the firearm in connection with another felony
offense, U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2002), a
fact not charged in the indictment. We affirm.
Hardy contends that, under Apprendi v. New Jersey, 530 U.S.
466, 490 (2000), any fact that increases the sentencing guideline
range must be charged in the indictment and proved beyond a
reasonable doubt. However, Apprendi is not implicated when the
sentencing court makes factual findings that increase the guideline
range but the sentence does not exceed the statutory maximum.
Harris v. United States, 536 U.S. 545 (2002). In this case, the
statutory maximum was ten years. We note that, although Hardy
raised the legal issue at sentencing, he did not contest the fact
that he used the gun to shoot another person.
Because the issue raised here lacks merit, we affirm the
sentence imposed by the district court. 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
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