United States v. Gibbs

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4511
BENJAMIN A. GIBBS, a/k/a Hev, a/k/a
Bubba,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4749
WENDELL RIVERS,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CR-98-322)
Submitted: September 28, 2001
Decided: October 16, 2001
Before NIEMEYER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. GIBBS
COUNSEL
James P. Rogers, Columbia, South Carolina; Stephen T. Schachte,
Charleston, South Carolina, for Appellants. Scott N. Schools, United
States Attorney, Robert H. Bickerton, Assistant United States Attor-
ney, Ann Agnew Cupp, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Benjamin A. Gibbs and Wendell S. Rivers appeal their convictions
and sentences of life and 60 months’ imprisonment, and 188 months’
and 60 months’ imprisonment, respectively. Appellants argue their
sentences violate Apprendi v. New Jersey, 530 U.S. 466 (2000), the
district court erred by not submitting to the jury an overt act in sup-
port of the conspiracy counts, and the Government made improper
comments at closing argument. Finding no reversible error, we affirm.
After a jury trial, Appellants were convicted of conspiracy to pos-
sess with intent to distribute and to distribute cocaine and cocaine
base, in violation of 21 U.S.C.A. §§ 841(a)(1), 846 (West 1999)
(Gibbs & Rivers); conspiracy to use and carry firearms in relation to
drug trafficking crimes, in violation of 18 U.S.C.A. § 924(c), (o)
(West 2000) (Gibbs & Rivers); using and carrying a firearm in rela-
tion to drug trafficking crimes, in violation of 18 U.S.C.A. § 924(c)(1)
and 18 U.S.C. § 2 (1994) (Gibbs); felon in possession of a firearm and
ammunition in interstate commerce, in violation of 18 U.S.C.A.
§§ 922(g)(1), 924(a)(2) (West 2000) and 18 U.S.C. § 2 (Gibbs); pos-
session with intent to distribute cocaine base, in violation of 21
U.S.C.A. § 841(a)(1) and 18 U.S.C. § 2 (Gibbs); possession with
intent to distribute cocaine, in violation of 21 U.S.C.A. § 841(a)(1);
UNITED STATES v. GIBBS 3
18 U.S.C. § 2 (Gibbs); and using and carrying a firearm in relation to
drug trafficking crimes, in violation of 18 U.S.C.A. § 924(c)(1) and
18 U.S.C. § 2 (Rivers).
Under Apprendi, "[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statu-
tory maximum must be submitted to a jury, and proved beyond a rea-
sonable doubt." Apprendi, 530 U.S. at 490. Concerning a violation of
21 U.S.C.A. § 841 (West 1999 & Supp. 2001), "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." United States v. Promise, 255 F.3d
150, 156-57 (4th Cir. 2001) (en banc) (footnotes omitted). The statu-
tory maximum for cocaine and crack cocaine trafficking offenses
under 21 U.S.C.A. § 841(b) is twenty years when drug quantity is not
charged in the indictment and found by a jury beyond a reasonable
doubt. Promise, 255 F.3d at 156.
Rivers’ sentence of 188 months’ imprisonment is below the 240-
month statutory maximum for a violation of § 841(a)(1) where no
drug quantity is charged in the indictment. Therefore, Rivers’ sen-
tence does not violate Apprendi. United States v. Angle, 254 F.3d 514,
518 (4th Cir. 2001) (en banc), petition for cert. filed, Aug. 16, 2001
(No. 01-5838).
Gibbs did not raise an Apprendi claim in the district court; there-
fore, we review for plain error. To find plain error, Gibbs "must dem-
onstrate that an error occurred, that the error was plain, and that the
error affected his substantial rights." Promise, 255 F.3d at 154 (citing
United States v. Olano, 507 U.S. 725, 732 (1993)). To affect substan-
tial rights, Gibbs must show the error was prejudicial, that it "actually
affected the outcome of the proceedings." United States v. White, 238
F.3d 537, 542 (4th Cir. 2001) (quoting United States v. Hastings, 134
F.3d 235, 240 (4th Cir. 1998)), cert. denied, ___ U.S. ___, 121 S. Ct.
2235 (2001).
We conclude that under White, Gibbs cannot show his substantial
rights were prejudiced. Gibbs received concurrent sentences of life
imprisonment, twenty years’ imprisonment, ten years’ imprisonment,
life imprisonment, and forty years’ imprisonment. Under United
4 UNITED STATES v. GIBBS
States Sentencing Guidelines Manual § 5G1.2(d), the district court
was obligated to impose consecutive sentences on Gibbs’ various
convictions until it reached the total punishment of life imprisonment.
White, 238 F.3d at 542-43. The Government filed an information
under 21 U.S.C. § 851 (1994); therefore, Gibbs’ maximum penalty as
to each of the drug counts was thirty years’ imprisonment. By stack-
ing Gibbs’ sentences as mandated by USSG § 5G1.2, the district court
was obligated to sentence Gibbs to 120 years’ imprisonment. Conse-
quently, Gibbs cannot show that his sentence of life imprisonment
was "longer than that to which he would otherwise be subject." White,
238 F.3d at 542; see also United States v. Roberts, 262 F.3d 286, ___,
2001 WL 929847, at *3 (4th Cir. Aug. 16, 2001) (No. 99-4919)
(applying the White analysis in the context of a life sentence). There-
fore, Gibbs has not shown prejudice to his substantial rights.
We reject the remainder of Gibbs’ claims. We find no error in the
court’s jury instructions or the admission of the testimony regarding
the murder of Audrey Stoeckle. As to the Government’s closing argu-
ment, because Gibbs invited the Government’s comments, and that
the district court gave a curative instruction, we are satisfied that no
prejudice resulted. See United States v. Young, 470 U.S. 1, 12-13
(1985); United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir.
1983).
We therefore affirm Gibbs’ and Rivers’ convictions and sentences.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED