United States of America v. Ronald Whethers

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3328
UNITED STATES OF AMERICA
v.
RONALD WHETHERS,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 95-cr-00036)
District Judge: Honorable Robert J. Cindrich
Submitted Under Third Circuit LAR 34.1(a)
June 23, 2003
Before: RENDELL, SMITH and ALDISERT, Circuit Judges.
(Filed August 6, 2003 )
OPINION OF THE COURT
RENDELL, Circuit Judge.
Ronald Whethers appeals the order of the District Court for the Western District of
Pennsylvania denying his motion for post-conviction relief under 28 U.S.C. §2255
(2001). Because Apprendi v. New Jersey, 230 U.S. 466 (2000), cannot be applied

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retroactively to initial motions for post-conviction relief, we will affirm.
Ronald Whethers was charged with operating a large-scale cocaine trafficking ring
in Southwestern Pennsylvania from 1989 to 1996. After a jury trial he was convicted of
conspiracy to distribute and to possess with intent to distribute cocaine and money
laundering. The amount of drugs involved was not submitted to the jury. The District
Court found by a preponderance of the evidence that Whethers was responsible for more
than 150 kilograms of cocaine. Based on this quantity, Whethers was sentenced to the
statutory maximum, life in prison. 21 U.S.C. § 841 (b)(1)(A). The District Court
explained that the harsh sentence was due to evidence of the violent nature of Whethers’
drug organization.
On appeal, we upheld Whethers’ conviction in a not-precedential opinion on July
10, 1998. United States v. Whethers, 159 F.3d 1354 (3rd Cir. 1998). On December 23,
1999, he filed a motion to vacate his sentence, pursuant to 28 U.S.C. § 2255. On June 26,
2000, the Supreme Court decided Apprendi v. New Jersey, 230 U.S. 466 (2000), holding
that any facts increasing the statutory maximum sentence to which a defendant could be
subject must be proved beyond a reasonable doubt and found by a jury at trial. On March
29, 2001, Whethers filed a motion to amend his Section 2255 motion, challenging his
sentence under Apprendi.
The District Court had subject matter jurisdiction under 28 U.S.C. § 2255, and we
exercise jurisdiction pursuant to Title 28 U.S.C. § 1291, and 28 U.S.C. § 2253 (a). We

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review the issue of the retroactivity of Apprendi de novo. United States v. Lloyd, 188
F.3d 184, 186 (3rd Cir. 1999).
Whethers argues that the Apprendi rule is a substantive, not a procedural, rule. In the
alternative, Whethers urges that if Apprendi is a procedural rule, to be analyzed using the rule
set forth in Teague v. United States, 489 U.S. 288 (1989), it is nonetheless entitled to
retroactive effect because Apprendi fits into one of the two exceptions to the general rule
against retroactivity.
Whethers’ arguments are to no avail. Recently, in United States v. Swinton, No. 01-
1004, 2003 WL (3d Cir. June 23, 2003), and United States v. Jenkins, No. 01-1722, 2003 WL
21398812 (3d Cir. June 18, 2003), we have held that the Supreme Court’s rule in Apprendi is
a rule of criminal procedure that should be analyzed using the standard set forth in Teague.
We determined further that Apprendi did not fit into either exception under Teague, because
it did not “place[] certain kinds of conduct beyond the power of the criminal law-making
authority to proscribe,” or “require[] the observance of those procedures that… . are implicit
in the concept of ordered liberty.” Teague, 489 U.S. at 288. Jenkins and Swinton thus
foreclose Whethers’ arguments.
For the foregoing reasons, we will deny Whethers’ §2255 motion for post-conviction
relief.
_________________________

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TO THE CLERK OF COURT:
Please file the foregoing opinion.
/s/Marjorie O. Rendell
___________________________
Circuit Judge
Dated:

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