United States v. Schnippel , 371 F. App'x 418 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4710
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SKYLAR MARTI SCHNIPPEL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:09-cr-00072-LMB-1)
Submitted: February 25, 2010 Decided: March 25, 2010
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Thomas M. Dawson, Leavenworth, Kansas, for Appellant. Neil H.
MacBride, United States Attorney, Daniel J. Grooms, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a bench trial, Skylar Marti Schnippel was
convicted of conspiracy to distribute heroin, the use of which
resulted in death and serious bodily injury, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 (2006) (Count 1),
possession with intent to distribute heroin resulting in death,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 2), and
obstruction of justice, in violation of 18 U.S.C. § 1503(a)
(2006) (Count 4). The judgment reflects that Schnippel also was
convicted of distribution of heroin resulting in death, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 3). On
appeal, Schnippel argues that the evidence was insufficient to
show his involvement in the conspiracy and his distribution of
heroin resulting in serious bodily injury and death to another.
He also claims the twenty-year minimum statutory sentence for
the drug convictions is unconstitutional in light of Spears v.
United States, 129 S. Ct. 840 (2009); Kimbrough v. United
States, 552 U.S. 85 (2007); and United States v. Booker, 543
U.S. 220 (2005). Finding no error, we affirm the convictions.
We also find no merit to the claim that the minimum statutory
sentence is unconstitutional. However, because the judgment is
inconsistent with the oral findings made at the conclusion of
the bench trial, we vacate the sentence and remand for the
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limited purpose of having the district court enter a revised
judgment that reflects the oral findings.
When a defendant challenges the sufficiency of the
evidence, this court considers whether the evidence, when viewed
in the light most favorable to the Government, was sufficient
for a rational trier of fact to have found the essential
elements of the crime beyond a reasonable doubt. Glasser v.
United States, 315 U.S. 60, 80 (1942); United States v. Stewart,
256 F.3d 231, 250 (4th Cir. 2001). If substantial evidence
exists to support a verdict, the verdict must be sustained.
Glasser, 315 U.S. at 80. This court does not review the
credibility of witnesses and assumes the factfinder resolved all
contradictions in the testimony in favor of the Government.
United States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002). “[A]n
appellate court’s reversal of a conviction on grounds of
insufficient evidence should be confined to cases where the
prosecution’s failure is clear.” United States v. Jones, 735
F.2d 785, 791 (4th Cir. 1984) (citation and internal quotation
marks omitted).
Under 21 U.S.C. § 841(b)(1)(A), if it is found that
death or serious bodily injury resulted from the use of the
heroin during the course of the conspiracy, the defendant is
subjected to a twenty-year minimum sentence. In order to
establish beyond a reasonable doubt the final element of the
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offense, the Government must show that the victim’s use of the
heroin received from Schnippel was a but for cause of her death.
See United States v. Hatfield, 591 F.3d 945, 948 (7th Cir.
2010). It is not necessary to show that the serious injury or
death be foreseeable to the defendant. Id. If a defendant
supplies the drugs the use of which results in the victim’s
death, then the element is proven and the defendant is subject
to an enhanced mandatory minimum sentence. See United States v.
De La Cruz, 514 F.3d 121, 137 (1st Cir. 2008).
We find the evidence is more than sufficient to
establish that Schnippel’s involvement in the drug conspiracy on
March 4, 2008, led to the victim dying of a heroin overdose. He
was actively involved in procuring the heroin and making sure it
got into the victim’s hands the night she died.
We further find Schnippel’s sentencing argument to be
without merit. The Supreme Court held in Kimbrough that
“sentencing courts remain bound by the mandatory minimum
sentences prescribed [by the Anti-Drug Abuse Act of 1986].”
Kimbrough, 552 U.S. at 107. Other circuits have held that,
after Kimbrough, district courts are generally not authorized to
sentence a defendant below the statutory minimum. United
States v. Harris, 531 F.3d 507, 516 (7th Cir. 2008) (“because
Harris’s sentence of 240 months reflects the statutory mandatory
minimum, there is no need to remand . . . pursuant to
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Kimbrough”); United States v. Black, 523 F.3d 892, 892-93 (8th
Cir. 2008) (“Kimbrough . . . does not authorize district courts
to sentence below the Congressionally-mandated statutory minimum
sentences.”).
However, because the judgment of conviction is
inconsistent with the oral findings made at the conclusion of
the bench trial, we vacate the judgment and remand for the
limited purpose of having the district court enter a revised
judgment that reflects the oral findings. At the close of the
bench trial, the district court specifically declined to rule on
Count Three, finding it should merge with Count Two, of which
Schnippel was found by the court to be guilty. The court stated
“there’s no sense in finding the defendant guilty of both
counts. I’m going to find him guilty of Count 2 . . . . I
think that that is more than sufficient.” (J.A. at 441).
Subsequently, the court stated “in my view, [Counts] 2 and 3
should merge so that the final judgment order would indicate
conspiracy, Count 1, and the conviction on Count 2.” (J.A. at
442). The judgment indicates Schnippel was guilty of Counts 1,
2 and 3, as well as Count 4. Because the district court
specifically did not find Schnippel guilty of Count 3, on remand
the judgment should be revised to reflect the court’s oral
findings in this regard.
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At the conclusion of the bench trial, the district
court also found beyond a reasonable doubt that Schnippel was
responsible for 1000 grams, or one kilogram, of heroin. The
judgment, however, indicates Schnippel was guilty of conspiracy
to distribute 100 grams of heroin, the use of which resulted in
death and serious bodily injury, in violation of 21 U.S.C.
§§ 846 and 841(a)(1), (b)(1)(A). A finding of 100 grams of
heroin exposes a defendant to being sentenced under 21 U.S.C.
§ 841(b)(1)(B). On remand, this typographical error should be
corrected to show Schnippel was guilty of conspiracy to
distribute 1000 grams of heroin.
Accordingly, we affirm the convictions and vacate the
sentence and remand for the limited purpose of having the
district court enter a revised judgment that reflects the oral
findings made at the conclusion of the bench trial. 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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