eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fourth Circuit
 2003-01

United States v. Gibson , 54 F. App'x 401 ( 2003 )


Menu:
 
  •                          UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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