United States of America v.  Thomas Henry Broadnax

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4108 
THOMAS HENRY BROADNAX,
Defendant-Appellant. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., District Judge.
(CR-02-291)
Submitted: April 24, 2003
Decided: May 5, 2003
Before NIEMEYER, GREGORY, and SHEDD, 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Affirmed by unpublished per curiam opinion.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, Michael A.
DeFranco, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Thomas Henry Broadnax pled guilty to two counts of bank rob-
bery, in violation of 18 U.S.C. §§ 2113 (a), (d) (2000). On appeal, he
contests his 90-month sentence arguing that the district court erred by
enhancing his base offense level by three levels for brandishing or
possessing a dangerous weapon during the robbery when that fact was
not alleged in the indictment. See U.S. Sentencing Guidelines Manual
§ 2B3.1(b)(2)(E) (2002). We affirm.
Broadnax 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. He concedes, however, that Apprendi is not implicated when
the sentencing court makes factual findings that increase the sentenc-
ing guidelines range but the sentence does not exceed the statutory
maximum. United States v. Obi, 239 F.3d 662, 667 (4th Cir.), cert.
denied, 122 S. Ct. 86 (2001); United States v. Kinter, 235 F.3d 192,
201-02 (4th Cir. 2000), cert. denied, 532 U.S. 937 (2001); see also
Harris v. United States, 536 U.S. 545 (2002) (holding that brandish-
ing is sentencing factor for offense under 18 U.S.C. § 924(c)(1)(A)
(2000)).
Because Broadnax’s sentence does not exceed the statutory maxi-
mum, we affirm the sentence imposed by the district court. We dis-
pense 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. BROADNAX

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