                            UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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

                                             4
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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