UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished 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Unpublished opinions are not binding precedent in this circuit.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