United States v. Eckles

UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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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