UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
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contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED