UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4672

TAUNYA NICOLE RORIE,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-98-367)

Submitted: February 8, 2000

Decided: February 24, 2000

Before MURNAGHAN, MICHAEL, and TRAXLER,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Brian M. Aus, Durham, North Carolina, for Appellant. Walter C. Hol-
ton, Jr., United States Attorney, Paul A. Weinman, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Taunya Nicole Rorie was convicted by a jury of bank robbery, see
18 U.S.C.A. § 2113(a) (West Supp. 1999), 18 U.S.C. § 2 (1994), and
received a sentence of 108 months imprisonment. Her sentence
included an enhancement for use of a firearm pursuant to U.S. Sen-
tencing Guidelines Manual § 2B3.1(b)(2)(B) (1998). Rorie appeals
her sentence, alleging that because she was acquitted of a second
charge of armed bank robbery, application of the firearm enhance-
ment violated the Double Jeopardy Clause by depriving her of her
right to have a jury determine facts that increase the severity of the
punishment for the crime. She also contends that the district court was
collaterally estopped from making the firearm enhancement by the
acquittal, and that there was insufficient evidence to support the
enhancement. We affirm.

Legal issues concerning the sentence are reviewed de novo. See
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Rorie
first notes that armed bank robbery is a separate offense from bank
robbery and has a greater statutory maximum sentence.* She relies on
Jones v. United States, 526 U.S. 227, 232 (1999), for the principle
that a jury must find facts that determine the defendant's guilt of a
particular offense (and thus his statutory sentence) beyond a reason-
able doubt. She argues that, in her case, the district court's application
of the firearm enhancement after the jury specifically rejected the ele-
ment of use of a dangerous weapon violated her Sixth Amendment
right to a jury determination on a material issue. However, the judge's
finding by a preponderance of the evidence that the firearm was rea-
sonably foreseeable to Rorie did not increase her statutory maximum
sentence. Rorie was sentenced within the statutory range for bank
robbery, the offense for which the jury had convicted her.

Moreover, the Supreme Court held, in United States v. Watts, 519
U.S. 148, 155 (1997), that a general verdict of not guilty is not a find-
_________________________________________________________________
*The statutory maximum sentence for armed bank robbery is 25 years.
18 U.S.C.A. § 2113(d). The statutory maximum sentence for bank rob-
bery is 20 years. 18 U.S.C.A. § 2113(a).

                     2
ing of fact or a rejection of any fact, but only an acknowledgment that
the government failed to prove an essential element beyond a reason-
able doubt. The sentencing court's "`consideration of information
about the defendant's . . . conduct at sentencing does not result in
"punishment" for any offense other than the[offense of conviction],'"
Id. (quoting Witte v. United States, 515 U.S. 389, 401 (1995)), but
instead means that the sentence reflects "`the fact that the present
offense was carried out in a manner that warrants increased punish-
ment.'" Id. (quoting Witte, 515 U.S. at 403). Thus, "a jury's verdict
of acquittal does not prevent the sentencing court from considering
conduct underlying the acquitted charge, so long as that conduct has
been proved by a preponderance of the evidence." Id. at 157. There-
fore, in Rorie's case, the district court did not violate due process or
the Double Jeopardy Clause by considering whether she was account-
able under the sentencing guidelines for Williams' use of a firearm
during the robbery.

Next, Rorie claims that her acquittal on the armed bank robbery
charge precluded relitigation of the issue, and that the district court's
application of the firearm enhancement violated the Double Jeopardy
Clause. She cites Shiro v. Farley, 510 U.S. 222 (1994), in support of
her position. However, Shiro teaches that the sentencing phase of a
single prosecution does not violate the Double Jeopardy Clause. See
Shiro, 510 U.S. at 230. Rather, the focus of the Clause is protection
against a second prosecution for the same offense following either
conviction or acquittal and against multiple punishments for one
offense. Id. at 229. Thus, the district court did not violate the Double
Jeopardy Clause by considering Rorie's relevant conduct when sen-
tencing her for bank robbery.

Last, Rorie argues that the district court clearly erred because there
was no evidence that she knew in advance that a gun would be used
in the robbery. The district court's factual determination that the fire-
arm was reasonably foreseeable to Rorie is reviewed under the clearly
erroneous standard. See Daughtrey, 874 F.2d at 217. For certain
crimes where firearms are frequently used, the foreseeability of a fire-
arm's presence may be inferred from the nature of the crime. See
United States v. Burton, 126 F.3d 666, 679 (5th Cir. 1997) (bank rob-
bery); United States v. White, 875 F.2d 427, 433 (4th Cir. 1989) (drug
conspiracy). Here, the district court found that the use of a firearm

                     3
was reasonably foreseeable in a bank robbery. This factual finding
was not clearly erroneous.

We therefore affirm the sentence. 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

                    4
