Vacated by Supreme Court, January 24, 2005




                                             UNPUBLISHED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                Affirmed by unpublished per curiam opinion.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. Con-
                rad, 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                Unpublished opinions are not binding precedent in this circuit.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).
2                       UNITED STATES v. BIJOU
                              OPINION

PER CURIAM:

   Jimmy Bijou pleaded guilty to three counts of possession of a fire-
arm 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 concur-
rently 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 dis-
missed. 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 convic-
tion, 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
                       UNITED STATES v. BIJOU                        3
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 materi-
als before the court and argument would not aid the decisional pro-
cess.

                                                          AFFIRMED
