
    UNITED STATES of America, Plaintiff-Appellee, v. James Edward HARDY, Jr., Defendant-Appellant.
    No. 03-4110.
    United States Court of Appeals, Fourth Circuit.
    Submitted June 19, 2003.
    Decided June 24, 2003.
    Louis C. Allen, III, Federal Public Defender, William C. Ingram, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Robert A.J. Lang, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee.
    Before NIEMEYER, KING, and GREGORY, Circuit Judges.
    Affirmed by unpublished PER CURIAM opinion.
   PER CURIAM.

James Edward Hardy, Jr., pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (2000), and was sentenced to a term of sixty-five months imprisonment. On appeal, he challenges the four-level enhancement he received for using the firearm in connection with another felony offense, U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2002), a fact not charged in the indictment. We affirm.

Hardy contends that, under Apprendi v. New Jersey, 580 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), any fact that increases the sentencing guideline range must be charged in the indictment and proved beyond a reasonable doubt. However, Apprendi is not implicated when the sentencing court makes factual findings that increase the guideline range but the sentence does not exceed the statutory maximum. Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). In this case, the statutory maximum was ten years. We note that, although Hardy raised the legal issue at sentencing, he did not contest the fact that he used the gun to shoot another person.

Because the issue raised here lacks merit, we affirm the sentence imposed by the district court. 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.  