                              UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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