                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 02-4148
DANTE XAVIER DUFFY,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Western District of North Carolina, at Charlotte.
                Lacy H. Thornburg, District Judge.
                            (CR-01-45)

                      Submitted: August 29, 2002

                      Decided: September 24, 2002

   Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.



Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.


                              COUNSEL

Aaron E. Michel, Charlotte, North Carolina, for Appellant. Robert J.
Conrad, Jr., United States Attorney, Brian S. Cromwell, 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Unpublished opinions are not binding precedent in this circuit.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. DUFFY
                             OPINION

PER CURIAM:

   Dante Xavier Duffy appeals his convictions after a guilty plea to
bank robbery, aiding and abetting, in violation of 18 U.S.C. §§ 2,
2113(a) (2000); bank larceny, aiding and abetting, in violation of
§§ 2, 2113(b) (2000); armed bank robbery, aiding and abetting, in
violation of §§ 2, 2113(d) (2000); and using, carrying, and brandish-
ing a firearm during and in relation to bank robbery, aiding and abet-
ting, in violation of 18 U.S.C. § 924(c) (2000). The district court
sentenced Duffy to consecutive terms of seventy-two months and
eighty-four months imprisonment. Duffy argues the district court
erred by denying his motion to elect between two charges, and by
enhancing his sentence for amount of loss, role in the offense, and
obstruction of justice. We affirm Duffy’s convictions, vacate the sen-
tence, and remand to the district court for resentencing.

   Duffy filed a motion asking the Government to elect to proceed to
trial on either the armed bank robbery count or the brandishing a fire-
arm during a crime of violence count. The district court denied the
motion. We review de novo this legal question. See United States v.
Imngren, 98 F.3d 811, 813 (4th Cir. 1996). Duffy contends the impo-
sition of sentences on both counts violates due process. To the extent
Duffy bases his argument on Apprendi v. New Jersey, 530 U.S. 466
(2000), we conclude without difficulty that separate sentencing upon
two separately charged offenses does not run afoul of Apprendi. See
id. at 490. Nor are Duffy’s arguments concerning the Due Process
Clause, the Double Jeopardy Clause, or the Eighth Amendment per-
suasive. Although Duffy argues the district court erred by imposing
the sentences consecutively, § 924(c) mandates that any sentence
under that section be imposed consecutively to any other term of
imprisonment. See United States v. Gonzales, 520 U.S. 1, 11 (1997).

   Duffy challenges the enhancement of his base offense level under
the sentencing guidelines for amount of loss, role in the offense, and
obstruction of justice. Duffy argues because those factors increased
the maximum penalty under the sentencing guidelines, they were ele-
ments that had to be charged in the indictment. This Court has
rejected that argument. See United States v. Kinter, 235 F.3d 192,
                        UNITED STATES v. DUFFY                         3
199-202 (4th Cir. 2000), cert. denied, 532 U.S. 937 (2001). Contrary
to Duffy’s claim, Kinter is fully applicable to Duffy’s due process
arguments. Id. at 200.

   Duffy contends the district court erred in imposing a two-level
enhancement pursuant to U.S. Sentencing Guidelines Manual
§ 3B1.1(c) (2001) for his role in the offense because he was not a
leader of the bank robbery. The district court’s determination is
reviewed for clear error. United States v. Perkins, 108 F.3d 512, 518
(4th Cir. 1997). Under USSG § 3B1.1(c), a two-level enhancement is
applied if the defendant was an organizer, leader, manager, or super-
visor of any criminal activity that did not involve five or more partici-
pants and was not otherwise extensive. The district court relied on the
investigating FBI agent’s testimony that Duffy recruited his co-
defendants, planned the robbery, and sketched the plan of the build-
ing. We have reviewed the record and the testimony presented at the
sentencing hearing and cannot conclude that the district court clearly
erred in finding the enhancement was appropriate.

   Finally, Duffy contests the adjustment for obstruction of justice.
This court reviews the district court’s findings for clear error. United
States v. Puckett, 61 F.3d 1092, 1095 (4th Cir. 1995). The district
court made two findings to support the adjustment: first, that Duffy
made materially false statements to law enforcement officers that
impeded their investigation; and second, that Duffy resisted arrest.
From our review of the record, we are unable to find sufficient evi-
dence under either theory to support this enhancement.

   The district court applied the enhancement for obstruction of jus-
tice because of Duffy’s "continuous efforts to mislead the investigat-
ing officers in a material way." However, some of the statements
relied on by the Government, including Duffy’s statement that his co-
conspirator left town after the crime, do not appear to be false.
Duffy’s denial of knowledge about the robbery, or the van used in the
robbery, cannot, without more, form the basis for an obstruction
enhancement. USSG § 3C1.1, comment. (nn. 4(g), 5(b)). It is not
clear on the present record that these statements substantially pro-
longed or impeded the investigation. Moreover, although Duffy was
involved in a standoff with local law enforcement officials who
sought to arrest him on a domestic violence charge, and those officers
4                      UNITED STATES v. DUFFY
learned of the bank robbery warrant during the standoff, there is no
testimony suggesting that Duffy knew of, or was attempting to evade
arrest on, the bank robbery arrest warrant. Because the current record
does not support the obstruction enhancement, we vacate Duffy’s sen-
tence and remand for further proceedings.

   We affirm Duffy’s convictions, vacate his sentence, and remand
for further proceedings. 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 IN PART; VACATED
                                      AND REMANDED IN PART
