                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 03-4110



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JAMES EDWARD HARDY, JR.,

                                              Defendant - Appellant.



Appeal from the United States District        Court for the Middle
District of North Carolina, at Durham.         James A. Beaty, Jr.,
District Judge. (CR-02-263)


Submitted:   June 19, 2003                 Decided:   June 24, 2003


Before NIEMEYER, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


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, Robert A.J.
Lang, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     James Edward Hardy, Jr., pled guilty to possession of a

firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1)

(2000),   and   was   sentenced   to       a    term   of   sixty-five    months

imprisonment.   On appeal, he challenges the four-level enhancement

he received for using the firearm in connection with another felony

offense, U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2002), a

fact not charged in the indictment.             We affirm.

     Hardy contends that, under Apprendi v. New Jersey, 530 U.S.

466, 490 (2000), any fact that increases the sentencing guideline

range must be charged in the indictment and proved beyond a

reasonable doubt.     However, Apprendi is not implicated when the

sentencing court makes factual findings that increase the guideline

range but the sentence does not exceed the statutory maximum.

Harris v. United States, 536 U.S. 545 (2002).                In this case, the

statutory maximum was ten years.               We note that, although Hardy

raised the legal issue at sentencing, he did not contest the fact

that he used the gun to shoot another person.

     Because the issue raised here lacks merit, 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


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