United States of America v.  Michael Orlando Downey

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4733 
MICHAEL ORLANDO DOWNEY,
Defendant-Appellant. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-02-69)
Submitted: January 30, 2003
Decided: February 6, 2003
Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
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, Randall S.
Galyon, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.

-- 1 of 2 --

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael O. Downey pled guilty to bank robbery in violation of 18
U.S.C. § 2113(a) (2000). He contests the 96-month sentence imposed
by the district court, arguing that the district court erred by enhancing
his base offense level by three levels for brandishing or possessing a
firearm during the offense when that fact was not alleged in the
indictment. See U.S. Sentencing Guidelines Manual § 2K2.1(b)(4)
(2001). We affirm.
Downey contends that, under Apprendi v. New Jersey, 530 U.S.
466, 490 (2000), facts that increase 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 sentencing guideline
range but the sentence does not exceed the statutory maximum. Har-
ris v. United States, 122 S. Ct. 2406, 2418 (2002). The statutory maxi-
mum for Downey’s offense is 240 months.
Because the issue raised by Downey lacks merit, we affirm the sen-
tence 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
2 UNITED STATES v. DOWNEY

-- 2 of 2 --