UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4244
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHONIKA GAIL ECKLES, a/k/a Nika,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:05-cr-00009-3)
Submitted: June 29, 2009 Decided: July 24, 2009
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
James E. Quander, Jr., QUANDER & RUBAIN, P.A., Winston-Salem,
North Carolina, for Appellant. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Shonika Gail Eckles of conspiracy to
possess with intent to distribute more than fifty grams of crack
cocaine, more than five kilograms of cocaine, and more than 1000
kilograms of marijuana, in violation of 21 U.S.C. § 846 (2006);
possession with intent to distribute a quantity of cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2006); and possession with
intent to distribute more than five grams of crack cocaine, in
violation of § 841(a)(1). The district court sentenced her to a
total of 262 months of imprisonment. Eckles’ counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that, in his view, there are no meritorious issues for
appeal but questioning whether the evidence supported the jury’s
verdict and whether the sentence is reasonable. Eckles was
informed of her right to file a pro se supplemental brief, but
she did not do so. We affirm the convictions, vacate the
sentence, and remand for resentencing.
Counsel first questions whether the evidence supported
the jury’s verdict, asserting that the witnesses lacked
credibility. This court, however, “do[es] not weigh the
evidence or assess the credibility of witnesses, but assume[s]
that the jury resolved any discrepancies [in the testimony] in
favor of the government.” United States v. Kelly, 510 F.3d 433,
440 (4th Cir. 2007), cert. denied, 128 S. Ct. 1917 (2008).
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Moreover, our review of the trial testimony convinces us that
substantial evidence supported the jury’s verdict on each count.
See Glasser v. United States, 315 U.S. 60, 80 (1942) (providing
standard); United States v. Reid, 523 F.3d 310, 317 (4th Cir.)
(discussing elements of § 846 offense), cert. denied, 129 S. Ct.
663 (2008); United States v. Collins, 412 F.3d 515, 519 (4th
Cir. 2005) (discussing elements of offense of possession with
intent to distribute). We therefore affirm Eckles’ convictions.
Counsel next questions whether Eckles’ 262-month
sentence is reasonable. We review a sentence for reasonableness
under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, __, 128 S. Ct. 586, 597 (2007). This review
requires appellate consideration of both the procedural and
substantive reasonableness of a sentence. Id. In determining
whether a sentence is procedurally reasonable, this court must
first assess whether the district court properly calculated the
defendant’s advisory guidelines range. Id. at 596-97. We then
must consider whether the district court considered the factors
in 18 U.S.C. § 3553(a) (2006), analyzed the arguments presented
by the parties, and made “an individualized assessment based on
the facts presented.” Id. at 597; see United States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009). Finally, we review the
substantive reasonableness of the sentence, “taking into account
the totality of the circumstances, including the extent of any
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variance from the Guidelines range.” United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007).
While Eckles’ appeal was pending, the Supreme Court
decided Kimbrough v. United States, 552 U.S. 85, __, 128 S. Ct.
558, 575 (2007) (holding that “it would not be an abuse of
discretion for a district court to conclude when sentencing a
particular defendant that the crack/powder disparity yields a
sentence ‘greater than necessary’ to achieve § 3553(a)’s
purposes, even in a mine-run case”). Eckles’ counsel preserved
the Kimbrough issue for appellate review by asking the district
court to consider a sentence below the advisory guidelines range
in light of the crack-to-powder cocaine sentencing disparity and
Eckles’ circumstances. Although counsel does not raise
specifically a Kimbrough issue on appeal, we may raise the issue
sua sponte pursuant to Anders. See Griffith v. Kentucky, 479
U.S. 314, 328 (1987) (“[A] new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases . . .
pending on direct review or not yet final, with no exception for
cases in which the new rule constitutes a ‘clear break’ with the
past.”).
Because Eckles preserved her Kimbrough claim, the
Government bears the burden of showing that the error in
applying the crack-to-powder ratio in a mandatory fashion did
not affect her substantial rights. United States v. Rodriguez,
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433 F.3d 411, 416 (4th Cir. 2006) (discussing harmless error
standard of review); see Fed. R. Crim. P. 52(a) (“Any error . .
. that does not affect substantial rights must be
disregarded.”). “The Government can . . . show[] [an error is
harmless] if the sentencing court indicated that it would not
have imposed a lesser sentence under an advisory (rather than a
mandatory) [g]uidelines regime.” United States v. Sullivan, 455
F.3d 248, 266 (4th Cir. 2006). We find that the error is not
harmless because there is nothing in the record to suggest that
the district court would have imposed the same 262-month
sentence had the district court had the benefit of Kimbrough and
Gall at the time of sentencing. See id. Accordingly, we vacate
the sentence and remand for resentencing.
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 IN PART,
VACATED IN PART,
AND REMANDED
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