United States v. Gibson

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 02-4182 LEWIS DEAN GIBSON, a/k/a Dean Forney, Defendant-Appellant.  Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (CR-97-310) Submitted: December 19, 2002 Decided: January 16, 2003 Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. COUNSEL Allen E. Shoenberger, LOYOLA LAW SCHOOL, Chicago, Illinois, for Appellant. Robert J. Conrad, Jr., United States Attorney, Char- lotte, North Carolina; Thomas R. Ascik, Assistant United States Attorney, Asheville, North Carolina, for Appellee. 2 UNITED STATES v. GIBSON Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: Lewis Dean Gibson appeals from his amended judgment imposed after re-sentencing in accordance with our opinion affirming his con- viction for violation of 21 U.S.C.A. § 846 (West 1999) and vacating and remanding the case for resentencing in accordance with Apprendi v. New Jersey, 530 U.S. 466 (2000). Gibson received a 240-month term of imprisonment on re-sentencing. Gibson challenges his conviction and sentence arguing that he suf- fered a constitutional violation by the indictment’s failure to charge a specific drug quantity and the failure of facts used to determine his sentence to be found by a jury beyond a reasonable doubt. We hold that Gibson’s 240-month conviction and sentence do not violate the principles of Apprendi and its progeny, including Ring v. Arizona, 122 S. Ct. 2428 (2002). See United States v. Cotton, 122 S. Ct. 1781, 1785 (2002); United States v. Kinter, 235 F.3d 192, 199-202 (4th Cir. 2000), cert. denied, 532 U.S. 937 (2001). Finally, Gibson challenged the district court’s determination of drug quantity. We find that the district court did not clearly err in its determination. See United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999) (clear error standard of review); United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (witness credibility is not subject to appellate review). We therefore affirm the judgment. 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