                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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




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