United States v. Gibson , 18 F. App'x 85 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 96-4369
BERNARD GIBSON, SR., a/k/a Bernard
Willis,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 96-4459
MARSTON EDWARD BLUE,
Defendant-Appellant.

On Remand from the United States Supreme Court.
(S. Ct. Nos. 99-7351 and 99-6775)
Submitted: August 14, 2001
Decided: September 6, 2001
Before WILKINS, MICHAEL, and WILLIAMS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A.,
Baltimore, Maryland, for Appellant Gibson; G. Alan DuBois, Assis-
2 UNITED STATES v. GIBSON
tant Federal Public Defender, Raleigh, North Carolina, for Appellant
Blue. Stephen M. Schenning, United States Attorney, Jan Paul Miller,
Assistant United States Attorney, Sandra Wilkinson, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This case is on remand from the United States Supreme Court for
further consideration in light of Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (holding that "[o]ther than the fact of a prior convic-
tion, any fact that increases the penalty for a crime beyond the pre-
scribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt"). The Court decided Apprendi after we
affirmed Bernard Gibson, Sr.’s, and Marston Edward Blue’s convic-
tions and sentences. United States v. Gibson, No. 96-4227(L) (4th Cir.
July 27, 2000) (unpublished), vacated, 531 U.S. 801 (2001). After
reviewing Gibson’s and Blue’s sentences for plain error in light of
Apprendi, we affirm in part, vacate in part, and remand for resentenc-
ing. See United States v. Promise, 255 F.3d 150, 154 (4th Cir. 2001)
(en banc) (discussing plain error standard of review).
A jury convicted Gibson and Blue of conspiracy to distribute her-
oin and cocaine, in violation of 21 U.S.C.A. § 846 (West 1999). Blue
also was convicted of possession with intent to distribute heroin, in
violation of 21 U.S.C.A. § 841 (West 1999 & Supp. 2001); being a
felon in possession of a firearm, in violation of 18 U.S.C.A.
§ 922(g)(1) (West 2000); and using or carrying a firearm during and
in relation to a drug trafficking offense, in violation of 18 U.S.C.A.
§ 924(c) (West 2000). The district court sentenced Gibson and Blue
to mandatory life sentences on the conspiracy count. Blue also
received concurrent life and fifteen-year sentences on the possession
UNITED STATES v. GIBSON 3
with intent to distribute and felon-in possession counts, respectively,
and a consecutive sixty-month sentence for the § 924(c) offense.1
Gibson and Blue contend on remand that their life sentences are
invalid after Apprendi because the district court, rather than the jury,
determined the drug amount and prior felonies supporting the
enhanced sentences. In applying Apprendi to drug offenses in §§ 841
and 846, we recently held that "the specific threshold [drug] quantity
must be treated as an element of an aggravated drug trafficking
offense, i.e., charged in the indictment and proved to the jury beyond
a reasonable doubt." Promise, 255 F.3d at 156-57 (footnotes omitted).
Here, drug quantity was not charged in the indictment or submitted
to the jury. We therefore find that there was error and that the error
was plain. Id. at 156-57, 160.
Because Gibson’s mandatory life sentence exceeded the thirty-year
statutory maximum for offenses under 21 U.S.C.A. § 841(b)(1)(C),
involving an unspecified amount of drugs where the defendant had a
prior conviction for a felony drug offense, we hold that the error in
Gibson’s sentence affected his substantial rights, id. at 160, and that
Gibson "can demonstrate that [his] sentence is ‘longer than that to
which he would otherwise be subject.’" United States v. Cotton, ___
F.3d ___, slip op. at 8 (4th Cir. Aug. 10, 2001) (quoting United States
v. Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en banc)). We also hold
that Blue’s substantial rights were affected because his mandatory life
sentence on the conspiracy count and concurrent life sentence on the
possession count exceeded the total statutory maximum prison term
of sixty years for multiple convictions involving an unspecified
amount of drugs where the defendant had a prior conviction for a fel-
ony drug offense. Angle, 254 F.3d at 518-19; United States v. White,
238 F.3d 537, 542-43 (4th Cir.), cert. denied, 121 S. Ct. 2235 (2001).
Having concluded that there is plain error that affected Gibson’s
and Blue’s substantial rights, we exercise our discretion to notice the
error. Cotton, slip op. at 8-13. The indictment charged Gibson and
Blue with conspiring to distribute an unspecified quantity of drugs,
see 21 U.S.C.A. § 841(b)(1)(C), but they "received a sentence for a
1
Blue does not challenge on appeal the consecutive sixty-month sen-
tence.
4 UNITED STATES v. GIBSON
crime—an aggravated drug trafficking offense under section
841(b)(1)(A) [and (b)(1)(B)]—with which they were neither charged
nor convicted." Cotton, slip op. at 9. Thus, we vacate Gibson’s and
Blue’s mandatory life sentences on the conspiracy count and Blue’s
concurrent life sentence on the possession count and remand for
resentencing consistent with United States Sentencing Guidelines
Manual §§ 5G1.1(a), 5G1.2(d) and White, 238 F.3d at 543.
Next, Blue asserts that his fifteen-year mandatory minimum sen-
tence as an armed career criminal under 18 U.S.C.A. § 924(e) (West
2000) violates Apprendi because the statutory maximum sentence for
being a felon in possession of a firearm is ten years under 18
U.S.C.A. 924(a)(2) (West 2000).2 Apprendi does not apply to Blue’s
enhanced sentence, however, because the application of § 924(e) is
based upon his prior convictions, a factor that was specifically
excluded from the holding of Apprendi. 530 U.S. at 490. Moreover,
Apprendi expressly upheld Almendarez-Torres v. United States, 523
U.S. 224 (1998) (holding that prior felony convictions are merely sen-
tencing enhancements, rather than elements of the offense). Apprendi,
530 U.S. at 490; see United States v. Skidmore, 254 F.3d 635, 641-42
(7th Cir. 2001) (holding that Apprendi does not affect enhanced sen-
tence under § 924(e)); United States v. Dorris, 236 F.3d 582, 586-88
(10th Cir. 2000) (same), cert. denied, 121 S. Ct. 1635 (2001); United
States v. Mack, 229 F.3d 226, 235 n.12 (3d Cir. 2000) (same), cert.
denied, 121 S. Ct. 2015 (2001). Although Blue attempts to distinguish
Almendarez-Torres, we do not find his arguments persuasive. We
therefore find no plain error in Blue’s fifteen-year sentence on the
felon-in-possession count. See Promise, 255 F.3d at 154 (stating stan-
dard of review).
Gibson and Blue also argue that, after Apprendi, § 841 is unconsti-
tutional. This argument has been rejected by the Fifth, Sixth, Seventh,
Tenth, and Eleventh Circuits. United States v. Cernobyl, ___ F.3d
___, 2001 WL 733406 (10th Cir. June 29, 2001); United States v.
2
Although the Government argues that Blue has abandoned this claim
and that Gibson and Blue have abandoned their challenge to the constitu-
tionality of § 841 after Apprendi, we find that review of these issues is
not foreclosed by the mandate rule. See United States v. Bell, 5 F.3d 64,
66-67 (4th Cir. 1993).
UNITED STATES v. GIBSON 5
Martinez, 253 F.3d 251, 256 n.6 (6th Cir. 2001); United States v.
Fort, 248 F.3d 475, 482-83 (5th Cir. 2001); United States v. Brough,
243 F.3d 1078, 1080 (7th Cir. 2001); United States v. Candelario, 240
F.3d 1300, 1311 n.16 (11th Cir.), cert. denied, 121 S. Ct. 2535 (2001).
We find that Gibson and Blue are not entitled to relief on this claim.
Finally, Gibson raises two claims in his pro se supplemental brief,
neither of which has merit. Contrary to his assertion that the indict-
ment is fatally defective because it failed to charge an offense, our
review of the superseding indictment leads us to conclude that it prop-
erly charged the offense of which Gibson was convicted. Promise,
255 F.3d at 160 (finding indictment sufficient where it charged defen-
dant with conspiracy to possess with intent to distribute "a quantity
of cocaine and cocaine base"). With regard to Gibson’s claim that
Count 1 of the superseding indictment is duplicitous because it
charged conspiracy and sought criminal forfeiture of assets under 18
U.S.C.A. § 853 (West 2000), we rejected this claim in the initial
appeal. Because this claim is not implicated by Apprendi, review is
foreclosed by the mandate rule. United States v. Bell, 5 F.3d 64, 66-
67 (4th Cir. 1993).
Accordingly, we vacate Gibson’s and Blue’s mandatory life sen-
tences on the conspiracy count and Blue’s concurrent life sentence on
the possession count and remand for resentencing with instructions to
sentence Gibson and Blue to a term of imprisonment not to exceed
the thirty-year statutory maximum in § 841(b)(1)(C). We affirm the
judgment in all other respects. 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 IN PART, AND REMANDED