UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4247

JIMMY BIJOU, a/k/a Jimmy Bigou

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Richard L. Voorhees, District Judge.

(CR-02-7-V)

Submitted: January 30, 2004

Decided: April 13, 2004

Before WIDENER, LUTTIG, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Noell P. Tin, Charlotte, North Carolina, for Appellant. Robert J. Conrad, Jr., United States Attorney, Robert J. Gleason, Assistant United

States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

Vacated by Supreme Court, January 24, 2005
OPINION

PER CURIAM: 

Jimmy Bijou pleaded guilty to three counts of possession of a firearm by a convicted felon, 18 U.S.C. § 922(g) (2000). His guideline

range was 210-262 months. He was sentenced to 120 months on each

count, with the sentences on Counts Two and Three to run concurrently with each other and consecutively to the sentence on Count

One, for a total sentence of 240 months. Bijou appeals, arguing that

his sentence violates the rule of Apprendi v. New Jersey, 530 U.S. 466

(2000). We affirm. 

Bijou contends that his sentence was enhanced in violation of

Apprendi based on conduct charged in two counts that were dismissed. In Apprendi, the Supreme Court held, "Other than the fact of

a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt." Id. at 490. Apprendi

does not require that a jury decide facts that increase a guideline range

but do not increase the statutory maximum sentence. United States v.

Kinter, 235 F.3d 192, 201-02 (4th Cir. 2000). 

Further, if a defendant stands convicted on multiple counts of an

indictment and the guidelines mandate a sentencing range that is

greater than the highest statutory maximum of any single count, the

district court must impose consecutive terms of imprisonment to

achieve a punishment within the guideline range. USSG § 5G1.2(d);

United States v. White, 238 F.3d 537, 542-43 (4th Cir. 2001). There

is no Apprendi violation in such a situation unless the defendant is

sentenced to more than the statutory maximum on any of the counts

of conviction. Id.; see United States v. White, 240 F.3d 127, 135 (2nd

Cir. 2001). 

Applying these principles, because Bijou did not receive more than

the statutory maximum of ten years on any of the counts of conviction, Apprendi does not preclude enhancement of the sentence based

on conduct that was the subject of dismissed counts. Additionally, the

district court was obligated under the guidelines and case law to

impose consecutive terms of imprisonment in order that Bijou receive

2 UNITED STATES v. BIJOU
a sentence within the guideline range of 210-264 months. Bijou’s

240-month sentence does not offend Apprendi. 

We accordingly affirm. 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

UNITED STATES v. BIJOU 3