                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4705


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DEWAYNE LAMONT RICHMOND,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00055-CCE-1)


Submitted:   February 27, 2014            Decided:   March 4, 2014


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen III, Federal Public Defender, Mireille P. Clough,
Assistant   Federal   Public   Defender,   Winston-Salem,  North
Carolina, for Appellant.     Lisa Blue Boggs, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Dewayne       Lamont        Richmond           pled        guilty      to    felon       in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2)       (2012).         He   now     appeals          the       resulting        115-month

sentence,       arguing    a    four-level            enhancement         for      possessing        a

firearm in connection with another felony offense, pursuant to

U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (2012), was

unconstitutionally applied because it was not charged in the

indictment.        Richmond       has      filed       a    pro    se    supplemental          brief

raising    the    same    issue.           The       Government         declined        to    file   a

responsive brief.         We affirm.

            In     the     district          court,          Richmond          challenged        the

application of the sentencing enhancement, arguing the facts did

not   support     the     enhancement.                On    appeal,       however,           Richmond

argues    that    the     application        of       the    enhancement           violated       his

Sixth Amendment right to a trial by jury, as articulated in

Alleyne    v.    United    States,         133       S.    Ct.    2151     (2013).           Because

Richmond    objected       to     the      application            of    the     enhancement          at

sentencing only on the ground that the factual foundation was

lacking, not that the enhancement violated his constitutional

rights, our review is for plain error.                             Under the plain error

standard, a defendant “must establish that the district court

erred,    that    the     error      was    plain,          and    that       it   affected      his

substantial rights.”            United States v. Robinson, 627 F.3d 941,

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954 (4th Cir. 2010) (internal quotation marks and alterations

omitted)      (citing       United    States      v.    Olano,       507      U.S.    725,   734

(1993)).      And even if a defendant meets this heavy burden, an

appellate court has “discretion whether to recognize the error,

and should not do so unless the error seriously affects the

fairness,          integrity     or        public       reputation             of     judicial

proceedings.”         United States v. Hargrove, 625 F.3d 170, 184 (4th

Cir. 2010) (internal quotation marks omitted).

              Here,    the     district      court      did    not    commit         error—much

less plain error—and we therefore affirm its application of the

sentencing enhancement.              In Alleyne, the Supreme Court held that

any   fact,    other     than    a    prior    conviction,           that     increases      the

statutory minimum punishment is an element that must be charged

in the indictment and proved beyond a reasonable doubt.                                 133 S.

Ct. 2151, 2155, 2162–63 (2013).                     The Court cautioned that its

holding did not disturb judicial factfinding at sentencing for

facts that do not impact the statutory punishment.                              Id. at 2163.

The sentencing enhancement Richmond challenges affects only the

advisory Guidelines calculations and not the statutory mandatory

minimum     punishment.              See     USSG       §     2K2.1(b)(6)(B)           (2012).

Therefore,      the     district      court       did   not    err       in    applying      the

enhancement.

              In    accordance       with      Anders,        we     have      reviewed      the

remainder      of     the    record     in     this     case       and      have     found    no

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meritorious       issues     for    appeal.         We     therefore      affirm     the

judgment.     This court requires that counsel inform Richmond, in

writing,    of    the   right      to   petition    the    Supreme     Court    of   the

United States for further review.                  If Richmond requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.                     Counsel’s motion must

state that a copy thereof was served on Richmond.                         We dispense

with oral argument because the facts and legal contentions are

adequately       presented    in    the   material        before   this    court     and

argument will not aid the decisional process.


                                                                               AFFIRMED




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