Vacated by Supreme Court, January 7, 2008
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4052
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTWYON SKIPPER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (2:06-cr-00157)
Submitted: May 25, 2007 Decided: July 11, 2007
Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Edward H. Weis, Assistant Federal Public Defender, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, John J. Frail, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antwyon Skipper appeals from his 100-month sentence
imposed pursuant to his guilty plea to possession with intent to
distribute cocaine base. On appeal, he asserts that the district
court utilized the wrong standard in choosing his sentence, that
the court erred by failing to consider whether the “unique”
circumstances of his case warranted use of the 100:1 cocaine
powder/cocaine base guidelines ratio (“100:1 ratio”), and that his
sentence was unreasonable. We affirm.
Skipper first claims that the district court applied the
improper standard at his sentencing. Specifically, he asserts that
the district court attempted to impose a “reasonable” sentence,
applying a presumption that a reasonable sentence would be one
within the advisory guideline range. Skipper contends that the
proper standard should have been to impose a sentence sufficient,
but not greater than necessary, to fulfill the purposes of
sentencing, giving no undue weight to the guidelines range.
Skipper correctly states that the district court’s
mandate is “to impose a sentence sufficient, but not greater than
necessary, to comply with the purposes of section 3553(a)(2).”
United States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006).
“Reasonableness is the appellate standard of review in judging
whether a district court has accomplished its task.” Id.
(emphasis in original). However, our review of the record reveals
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that the district court understood and applied the correct
standard. Thus, this issue is without merit.
Next, Skipper contends that the district court improperly
failed to consider whether, under the specific facts of his case,
the guidelines’ tougher treatment of crack cocaine crimes resulted
in a sentence greater than necessary to advance the goals of
sentencing in his case. In United States v. Eura, 440 F.3d 625,
634 (4th Cir. 2006), petition for cert. filed (June 20, 2006), we
concluded that a “district court’s categorical rejection of the
100:1 ratio impermissibly usurps Congress’s judgment about the
proper sentencing policy for cocaine offenses.” However, Skipper
points to the Eura Court’s further conclusions that “it does not
follow that all defendants convicted of crack cocaine offenses must
receive a sentence within the advisory sentencing range. We
certainly envision instances in which some of the § 3553(a) factors
will warrant a variance from the advisory sentencing range in a
crack cocaine case.” Id. (emphasis in original).
Skipper asserts that his is such a case. He points to
his non-violent record and the fact that he was a low-level dealer.
He contends that, because the 100:1 ratio was adopted to target
major drug dealers, the facts in his case would justify a variance
sentence, as the 100:1 ratio resulted in a harsher sentence than
necessary.
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Skipper has misread Eura. Eura does not conclude that,
in given cases, the court may alter or disregard the 100:1 ratio;
rather, the language Skipper points to in Eura stands for the
unremarkable conclusion that the court must consider the guidelines
range as well as the 18 U.S.C.A. § 3553 (West 2000 & Supp. 2007)
factors in fashioning a sentence and that, in an appropriate case,
the § 3553 factors may warrant a lower sentence, even for a
defendant convicted of a crack cocaine offense. Eura does not say
that one of the considered factors can be the unfairness of the
ratio in certain cases. In fact, Eura plainly states that “in
arriving at a reasonable sentence, the court simply must not rely
on a factor that would result in a sentencing disparity that
totally is at odds with the will of Congress.” 440 F.3d at 634.
Thus, the district court properly declined to impose a variance
sentence based on any perceived unfairness in the 100:1 ratio.
Finally, Skipper contends that his sentence was
unreasonable because the district court did not properly take into
account relevant factors, including the non-violent nature of the
crime, his cooperation, and his relatively innocuous criminal
history. In addition, Skipper claims that the purposes of the
100:1 ratio, which drove the guideline calculations, are not
present in his relatively minor, non-violent conviction. Skipper’s
sentence, which was within the proper advisory guidelines range, is
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presumptively reasonable. See United States v. Johnson, 445 F.3d
339, 341 (4th Cir. 2006).
The issues Skipper raises to support his claim that his
sentence is unreasonable were raised at sentencing and considered
by the district court. The court noted that Skipper posed a risk
of future substance abuse, that he had a long history of using and
selling drugs, and that the amount of drugs involved in the instant
crime was greater than in his prior convictions. In addition, the
non-violent nature of his crime and the fact that he accepted
responsibility were already considered in the calculation of the
guideline range.
Neither Skipper nor the record suggests any information
so compelling as to rebut the presumption that a sentence within
the properly calculated guideline range is reasonable. Congress
has never stated that the 100:1 ratio is only applicable in certain
cases, and as discussed above, district courts are not permitted to
consider any unfairness in application of the ratio when
determining a sentence. Accordingly, we find that Skipper’s
sentence, which was well under the statutory maximum and at the low
end of the properly calculated guideline range, was reasonable.
Accordingly, Skipper’s sentence is affirmed. 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
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