United States v. Broadnax

61 F. App'x 907

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 5, 2003
• Docket: 03-4108
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Thomas Henry Broadnax pled guilty to two counts of bank robbery, 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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 sentencing guidelines range but the sentence does not exceed the statutory maximum. United States v. Obi, 239 F.3d 662, 667 (4th Cir.), cert. denied, 534 U.S. 835, 122 S.Ct. 86, 151 L.Ed.2d 49 (2001); United States v. Kinter, 235 F.3d 192, 201-02 (4th Cir.2000), cert. denied, 532 U.S. 937, 121 S.Ct. 1393, 149 L.Ed.2d 316 (2001); see also Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (holding that brandishing is sentencing factor for offense under 18 U.S.C. § 924(c)(1)(A) (2000)).

Because Broadnax’s sentence does not exceed the statutory maximum, 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.