UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4919
DARRYL LEON BAILEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-00-151)
Submitted: April 12, 2001
Decided: April 20, 2001
Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, William C. Ingram, First
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Walter C. Holton, Jr., United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
2 UNITED STATES v. BAILEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Darryl Leon Bailey was convicted of one count of bank robbery,
one count of armed bank robbery and one count of aiding and abetting
the carrying and using a firearm during a crime of violence in viola-
tion of 18 U.S.C.A. §§ 2 & 924(c)(1)(A)(iii) (West 2000). With
regard to the firearm conviction, the district court found at sentencing
that the firearm was discharged. Accordingly, the court sentenced
Bailey to 10 years’ imprisonment for that conviction, the statutory
minimum. See 18 U.S.C.A. § 924(c)(1)(A)(iii). On appeal, Bailey
contends that "brandished" and "discharged" as found in 18 U.S.C.A.
§ 924(c) are elements of separate offenses and not merely sentencing
factors. Because these elements were not found by the jury beyond a
reasonable doubt, Bailey argues that he should have been sentenced
to the statutory minimum term of 5 years’ imprisonment as authorized
under 18 U.S.C. § 924(c)(1)(A)(i). We affirm the conviction and sen-
tence.
This court recently rejected Bailey’s argument and held that the
"brandished" clause under 18 U.S.C. § 924(c)(1)(A)(ii) was a sentenc-
ing factor. See United States v. Harris, ___ F.3d ___, 2001 WL
273146 (4th Cir. Mar. 20, 2001). This holding applies to the "dis-
charged" clause found under 18 U.S.C. § 924(c)(1)(A)(iii).
Accordingly, we affirm Bailey’s convictions and sentences. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED