UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4726
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON MICHAEL JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:08-cr-00105-D-2)
Submitted: May 13, 2014 Decided: May 22, 2014
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brandon Michael Jones appeals his total sentence of
272 months of imprisonment after his guilty plea to drug and
firearm offenses and following his resentencing in light of
Alleyne v. United States, 133 S. Ct. 2151 (2013), and United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). On
appeal, Jones contends that his sentence continues to violate
Alleyne. We affirm.
We review Jones’ constitutional challenge to his
sentence de novo. United States v. Mackins, 315 F.3d 399, 405
(4th Cir. 2003). As Alleyne explained, the Due Process Clause
and the Sixth Amendment generally require that any factual
finding that raises the minimum or maximum sentence a defendant
faces must be charged in the indictment and admitted by
defendant or proven to a jury beyond a reasonable doubt. See
Alleyne, 133 S. Ct. at 2156, 2160-63. However, Alleyne
specifically preserved the distinction, for constitutional
purposes, between facts that circumscribe the range in which a
district court may impose sentence and facts that inform the
district court’s choice of sentence within that range. See id.
at 2163. As Alleyne noted, “factfinding used to guide judicial
discretion in selecting a punishment within limits fixed by law”
does not offend the Sixth Amendment. Id. at 2161 n.2 (internal
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quotation marks omitted); see United States v. Umaña, __ F.3d
__, __, 2014 WL 1613886, at *20 (4th Cir. Apr. 23, 2014).
Here, Jones pled guilty to, among other offenses,
using and carrying a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(2012). Although not alleged in Jones’ indictment or proven
beyond a reasonable doubt, it is undisputed that Jones’ § 924(c)
offense involved he and his co-conspirators using firearms to
threaten and intimidate a seemingly innocent bystander while
they attempted to rob a drug dealer. Based on that conduct, the
district court found it appropriate to vary upward from the
mandatory minimum of sixty months of imprisonment to eighty-four
months of imprisonment.
Although Jones argues that such a sentence runs
directly counter to Alleyne, we disagree. Only if the district
court had regarded the sentence imposed as a mandatory minimum
below which it could not venture would Jones’ constitutional
rights have been violated. The district court clearly did not
do so but, instead, properly exercised its sentencing
discretion.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
3
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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