United States of America v. TERRENCE GIBBS a/k/a Terry, a/k/a T Terrence Gibbs

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 01-1262
UNITED STATES OF AMERICA
v.
TERRENCE GIBBS
a/k/a Terry, a/k/a T
Terrence Gibbs,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 96-cr-00539-2)
District Judge: Hon. Harvey Bartle, III
Submitted Under Third Circuit LAR 34.1(a)
September 2, 2003
Before: SLOVITER, NYGAARD and ROTH, Circuit Judges
(Filed: September 18, 2003)
OPINION OF THE COURT

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SLOVITER, Circuit Judge.
Terrence Gibbs appeals from the order of the District Court denying his motion
under 28 U.S.C. § 2255 alleging that his sentence violated his constitutional rights as
enunciated by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Gibbs was convicted in May 1997 of one count of conspiracy to distribute cocaine,
one count of bribery of a public official, one count of operating a continuing criminal
enterprise, 15 counts of use of a telephone to facilitate a drug felony, and two counts of
conspiracy to launder money. Gibbs contends, and the Government does not deny, that
there was no physical evidence introduced at trial to establish the quantity of drugs
attributed to Gibbs. He was sentenced by the court to life imprisonment, a sentence
authorized by the applicable statute. Gibbs appealed his conviction and sentence to this
court and we affirmed. United States v. Gibbs, 190 F.3d 188 (3d Cir. 1999), cert. denied
528 U.S. 1131 (2000).
Gibbs then filed a motion under 28 U.S.C. § 2255 alleging that his sentence
violated the rule enunciated in Apprendi because the issue of drug quantity was not
submitted to the jury and because the trial court did not apply the beyond-a-reasonable-
doubt standard in making its sentence determination. The District Court denied Gibbs’
motion, holding that Apprendi did not apply retroactively to cases on collateral review.
See United States v. Gibbs, 125 F. Supp. 2d 700 (E.D. Pa. 2000). Gibbs appealed to this
court. We issued a Certificate of Appealability (COA) on the following two issues: (1)

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whether the Supreme Court’s decision in Apprendi applies retroactively to cases on initial
collateral review; and (2) whether Gibbs is procedurally barred from challenging his
conviction and sentence on Apprendi grounds because he failed to raise the argument on
direct appeal. We directed the appointment of counsel, and the parties filed briefs
directed to the issues listed in the COA. In his brief to this court, Gibbs argued that
Apprendi effected a substantive change in the definition of crimes which is to be applied
retroactively. He also argued that there is no controlling authority precluding this court
from applying Apprendi retroactively to the case at bar, noting specifically that the Third
Circuit has not made a dispositive ruling on this issue.
Earlier this year this court, in two decisions, rejected Gibbs’ claim. In United
States v. Swinton, 333 F.3d 481 (3d Cir. 2003), we rejected Swinton’s contention that
Apprendi was a substantive rule and held instead that Apprendi announced a new rule of
criminal procedure that must be analyzed for its retroactive application pursuant to the
decision of the Supreme Court in Teague v. Lane, 489 U.S. 288 (1989). Applying the
Teague analysis, we concluded that the rule of criminal procedure announced in Apprendi
does not apply retroactively to cases on collateral review. Swinton, 333 F.3d at 489-91.
This was the same conclusion reached by the Courts of Appeals for the Fourth, Fifth,
Seventh and Eleventh Circuits. See United States v. Brown, 305 F.3d 304 (5th Cir.
2002), cert. denied, 123 S. Ct. 1919 (2003); Curtis v. United States, 294 F.3d 841 (7th
Cir.), cert. denied,123 S. Ct. 451 (2002); McCoy v. United States, 266 F.3d 1245 (11th

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Cir. 2001), cert. denied, 536 U.S. 906 (2002); United States v. Sanders, 247 F.3d 139 (4th
Cir.), cert. denied, 534 U.S. 1032 (2001). In another opinion issued several weeks earlier,
we also held that Apprendi does not apply retroactively to cases on collateral review. See
United States v. Jenkins, 333 F.3d 151 (3d Cir. 2003). These cases are dispositive of the
first issue on which we granted a Certificate of Appealability, thus mooting the second
issue.
In his response to our request that the parties file contemporaneous memoranda
discussing the effect of Swinton and Jenkins on the issue raised by Gibbs, Gibbs argues
that he presents an argument that neither Swinton nor Jenkins addressed, i.e., that the
right to trial by jury guaranteed by the Sixth Amendment would be diminished if his
sentence can be increased from a statutory maximum of 20 years to life without a jury
finding the facts necessary to justify such a sentence. This court did not grant a
Certificate of Appealability on that issue. Nor did it grant a Certificate of Appealability
on Gibbs’ contention that appellate counsel was ineffective for not arguing that his
sentence violated Jones v. United States, 526 U.S. 227 (1999). We will confine ourselves
to the issues on which we granted a Certificate of Appealability.
For the reasons set forth above, we will affirm the order of the District Court.

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TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge

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