**UN PUBLISHED** 
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 un published 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 Attorney s , Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: Brandon Michael Jones appeals h is total sentence of 272 months of imprisonment after his guilty plea to drug and firearm offenses and following his resentencing in light of
A lleyne 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 rea sonable 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 t he 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 (inter nal3 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 us ing firearms to threaten and intimidate a seemingly innocent bystander while they attempt ed to rob a drug dealer . Based on that conduct, the district court foun d it appropriate to vary upward from the mandatory minimum of sixty months of imprisonment to eighty

- four months of imprisonment

. Alt hough Jones argues that such a sentence runs directly counter to Alleyne , we disagree. O nly 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 dist r ict court clearly did not do so but, instead, properly exercised its sentencing discretion

. Accordingl y, we affirm the district court’ s judgment. We dispense with oral argument because the facts and legal4 contentions are adequately presented in the materials before th is court and argument would not aid the decisional process.

AFFIRMED