             Vacated by Supreme Court, January 7, 2008



                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4052



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ANTWYON SKIPPER,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (2:06-cr-00157)


Submitted:   May 25, 2007                  Decided:   July 11, 2007


Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Edward H. Weis, Assistant Federal Public Defender, Charleston, West
Virginia, for Appellant.       Charles T. Miller, United States
Attorney, John J. Frail, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                Antwyon   Skipper      appeals    from    his    100-month     sentence

imposed pursuant to his guilty plea to possession with intent to

distribute cocaine base.            On appeal, he asserts that the district

court utilized the wrong standard in choosing his sentence, that

the   court      erred    by   failing    to   consider     whether      the   “unique”

circumstances of his case warranted use of the 100:1 cocaine

powder/cocaine base guidelines ratio (“100:1 ratio”), and that his

sentence was unreasonable.             We affirm.

                Skipper first claims that the district court applied the

improper standard at his sentencing. Specifically, he asserts that

the district court attempted to impose a “reasonable” sentence,

applying a presumption that a reasonable sentence would be one

within the advisory guideline range.                   Skipper contends that the

proper standard should have been to impose a sentence sufficient,

but   not   greater       than   necessary,       to   fulfill     the   purposes    of

sentencing, giving no undue weight to the guidelines range.

                Skipper   correctly      states    that    the    district     court’s

mandate is “to impose a sentence sufficient, but not greater than

necessary, to comply with the purposes of section 3553(a)(2).”

United States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006).

“Reasonableness is the appellate standard of review in judging

whether     a    district      court    has    accomplished       its    task.”     Id.

(emphasis in original).          However, our review of the record reveals


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that   the   district   court   understood   and   applied   the   correct

standard.     Thus, this issue is without merit.

             Next, Skipper contends that the district court improperly

failed to consider whether, under the specific facts of his case,

the guidelines’ tougher treatment of crack cocaine crimes resulted

in a sentence greater than necessary to advance the goals of

sentencing in his case.     In United States v. Eura, 440 F.3d 625,

634 (4th Cir. 2006), petition for cert. filed (June 20, 2006), we

concluded that a “district court’s categorical rejection of the

100:1 ratio impermissibly usurps Congress’s judgment about the

proper sentencing policy for cocaine offenses.”        However, Skipper

points to the Eura Court’s further conclusions that “it does not

follow that all defendants convicted of crack cocaine offenses must

receive a sentence within the advisory sentencing range.                We

certainly envision instances in which some of the § 3553(a) factors

will warrant a variance from the advisory sentencing range in a

crack cocaine case.”     Id. (emphasis in original).

             Skipper asserts that his is such a case.        He points to

his non-violent record and the fact that he was a low-level dealer.

He contends that, because the 100:1 ratio was adopted to target

major drug dealers, the facts in his case would justify a variance

sentence, as the 100:1 ratio resulted in a harsher sentence than

necessary.




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           Skipper has misread Eura.    Eura does not conclude that,

in given cases, the court may alter or disregard the 100:1 ratio;

rather, the language Skipper points to in Eura stands for the

unremarkable conclusion that the court must consider the guidelines

range as well as the 18 U.S.C.A. § 3553 (West 2000 & Supp. 2007)

factors in fashioning a sentence and that, in an appropriate case,

the § 3553 factors may warrant a lower sentence, even for a

defendant convicted of a crack cocaine offense.    Eura does not say

that one of the considered factors can be the unfairness of the

ratio in certain cases.    In fact, Eura plainly states that “in

arriving at a reasonable sentence, the court simply must not rely

on a factor that would result in a sentencing disparity that

totally is at odds with the will of Congress.”      440 F.3d at 634.

Thus, the district court properly declined to impose a variance

sentence based on any perceived unfairness in the 100:1 ratio.

           Finally,   Skipper   contends   that   his   sentence   was

unreasonable because the district court did not properly take into

account relevant factors, including the non-violent nature of the

crime, his cooperation, and his relatively innocuous criminal

history.   In addition, Skipper claims that the purposes of the

100:1 ratio, which drove the guideline calculations, are not

present in his relatively minor, non-violent conviction. Skipper’s

sentence, which was within the proper advisory guidelines range, is




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presumptively reasonable.     See United States v. Johnson, 445 F.3d

339, 341 (4th Cir. 2006).

           The issues Skipper raises to support his claim that his

sentence is unreasonable were raised at sentencing and considered

by the district court.   The court noted that Skipper posed a risk

of future substance abuse, that he had a long history of using and

selling drugs, and that the amount of drugs involved in the instant

crime was greater than in his prior convictions.       In addition, the

non-violent nature of his crime and the fact that he accepted

responsibility were already considered in the calculation of the

guideline range.

           Neither Skipper nor the record suggests any information

so compelling as to rebut the presumption that a sentence within

the properly calculated guideline range is reasonable.          Congress

has never stated that the 100:1 ratio is only applicable in certain

cases, and as discussed above, district courts are not permitted to

consider   any   unfairness   in    application   of   the   ratio   when

determining a sentence.       Accordingly, we find that Skipper’s

sentence, which was well under the statutory maximum and at the low

end of the properly calculated guideline range, was reasonable.

           Accordingly, Skipper’s sentence is affirmed. 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



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