United States v. Eric Skipwith , 609 F. App'x 146 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4961
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC LAVELL SKIPWITH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:14-cr-00092-JFM-2)
Submitted: June 16, 2015 Decided: July 2, 2015
Before DIAZ, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nancy S. Forster, KADISH FORSTER AND FASTOVSKY, Baltimore,
Maryland, for Appellant. Christopher John Romano, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Lavell Skipwith appeals the district court’s judgment
sentencing him to 72 months’ imprisonment for conspiracy to
possess with the intent to distribute 500 grams or more of
cocaine, in violation of 21 U.S.C. § 846 (2012). In accordance
with Anders v. California, 386 U.S. 738 (1967), Skipwith’s
counsel filed a brief certifying that there are no meritorious
grounds for appeal but questioning whether the district court
imposed an unreasonable sentence in light of the lesser sentence
imposed on Skipwith’s codefendant. Skipwith filed a pro se
supplemental brief, alleging that the district court erred in
sentencing him above the mandatory minimum because his criminal
history score overstated his criminal history, and that the
district court engaged in impermissible judicial fact-finding in
violation of Alleyne v. United States, 133 S. Ct. 2151 (2013).
We affirm.
We review a defendant’s sentence for reasonableness using
an abuse-of-discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). We must first review for “significant
procedural error,” which includes improperly calculating the
Sentencing Guidelines range, failing to consider the 18 U.S.C.
§ 3553(a) factors, sentencing based on clearly erroneous facts,
or failing to adequately explain the sentence. Id.
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If we find no significant procedural error, we examine the
substantive reasonableness of the sentence under “the totality
of the circumstances.” Id. The sentence imposed must be
“sufficient, but not greater than necessary” to satisfy the
goals of sentencing. See 18 U.S.C. § 3553(a) (2012). We
presume on appeal that a sentence within a properly calculated
Guidelines range is reasonable. United States v. Louthian, 756
F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
The appellant bears the burden to rebut the presumption by
showing that the sentence is unreasonable when measured against
the § 3553(a) factors. Id.
Skipwith argues that his sentence runs afoul of 18 U.S.C.
§ 3553(a)(6) because his codefendant was sentenced to only 15
months’ imprisonment. Section 3553(a)(6) is aimed at
eliminating national sentencing disparities, not sentencing
disparities among codefendants. United States v. Quinn, 359
F.3d 666, 682 (4th Cir. 2004); United States v. Withers, 100
F.3d 1142, 1149 (4th Cir. 1996). The district court did,
however, consider the potential sentence of Skipwith’s
codefendant, but found that in light of the § 3553(a) factors as
a whole, a 72-month sentence was appropriate for Skipwith.
Moreover, the district court did not err in declining to
depart downward on the basis that Skipwith’s criminal history
score overstated his criminal history. Because no motion for a
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downward departure was made below, we review for plain error.
United States v. Slade, 631 F.3d 185, 189 (4th Cir. 2011). A
downward departure is warranted “when a defendant’s criminal
history category exaggerates the seriousness of his past
criminal conduct or the likelihood that he will commit further
crimes.” United States v. Stockton, 349 F.3d 755, 764 (4th Cir.
2003). Here, the district court considered the fact that many
of Skipwith’s past convictions were for alcohol-related offenses
and not controlled substance offenses; however, the court found
Skipwith’s criminal history sufficiently serious to justify the
sentence imposed. Thus, the district court did not err in
declining to sua sponte depart downward, and when measured
against the § 3553(a) factors as a whole, Skipwith’s within-
Guidelines sentence is reasonable.
Finally, Skipwith’s pro se claim that his sentence runs
contrary to Alleyne is without merit. Alleyne applies to
statutory mandatory minimums, not Guidelines sentences. See
Alleyne, 133 S. Ct. at 2163. Moreover, the court used the exact
quantity of cocaine charged in the indictment and to which
Skipwith stipulated, and by pleading guilty Skipwith waived his
right to have the jury decide if those facts were proven. Id.
at 2160.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
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therefore affirm the district court’s judgment. This court
requires that counsel inform Skipwith, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Skipwith requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Skipwith.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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