US v. Joseph Jacob


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:14-cr-00667-JFA-18 Copies to all parties and the district court/agency. [999901126].. [15-4593]

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Appeal: 15-4593 Doc: 47 Filed: 08/01/2016 Pg: 1 of 5 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4593 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH DEE JACOBS, a/k/a Weezo, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:14-cr-00667-JFA-18) Submitted: July 28, 2016 Before MOTZ and Circuit Judge. HARRIS, Decided: Circuit Judges, and August 1, 2016 DAVIS, Senior Affirmed by unpublished per curiam opinion. Jessica Salvini, SALVINI & BENNETT, LLC, Greenville, South Carolina, for Appellant. John David Rowell, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4593 Doc: 47 Filed: 08/01/2016 Pg: 2 of 5 PER CURIAM: Joseph sentence Dee Jacobs imposed appeals following his his conviction guilty plea and to 188-month conspiracy to distribute and possess with intent to distribute a quantity of cocaine, in violation of 21 U.S.C. § 846 (2012). On appeal, Jacobs’ Anders counsel has California, 386 meritorious issues filed U.S. 738 for a brief (1967), appeal pursuant stating but to that there questioning v. are whether no the Government breached the plea agreement in declining to move for a downward departure and whether the district court imposed an unreasonable sentence. Jacobs was notified of his right to file a pro se supplemental brief but has not done so. has declined to file a response brief. The Government For the reasons that follow, we affirm. Jacobs first asserts that the Government breached its obligations under the plea agreement by failing to move for a downward departure based on substantial assistance. Because Jacobs did not raise this argument in the district court, we review the issue for plain error. Puckett v. United States, 556 U.S. 129, 133-34 (2009); see Henderson v. United States, __ U.S. __, 133 S. Ct. 1121, 1126-27 (2013) (describing standard). A defendant a alleging a breach has the burden to prove by preponderance of the evidence that the Government breached the 2 Appeal: 15-4593 Doc: 47 Filed: 08/01/2016 plea agreement. Pg: 3 of 5 United States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991). The plain language of Jacobs’ plea agreement obligated the Government to move for a downward departure only if it deemed Jacobs’ cooperation as substantial assistance investigation or prosecution of another person. in the Because defense counsel candidly admitted at sentencing that Jacobs’ cooperation had not arisen to the level of substantial assistance, and the record provides no basis to conclude otherwise, we find no breach of the plea agreement. Jacobs’ counsel also questions whether the district court imposed an unreasonable sentence. We review Jacobs’ sentence for reasonableness, applying “a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 46 (2007). We first ensure that the court “committed no significant procedural error,” such Guidelines, § 3553(a) as improper insufficient (2012) sentence imposed. calculation consideration factors, and inadequate of of the the Sentencing 18 explanation U.S.C. of the United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010) (internal quotation marks omitted). If we find the sentence procedurally reasonable, we also review its substantive reasonableness under “the totality of the circumstances.” 552 U.S. at 51. We substantively reasonable. presume that a Gall, within-Guidelines is United States v. Louthian, 756 F.3d 3 Appeal: 15-4593 295, Doc: 47 306 Filed: 08/01/2016 (4th Cir.), cert. Pg: 4 of 5 denied, 135 S. Ct. 421 (2014). Jacobs bears the burden to rebut this presumption “by showing that the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id. Our review of the record indicates that Jacobs’ sentence is reasonable. The court properly calculated the applicable Sentencing Guidelines range, considered the parties’ sentencing arguments, and provided a reasoned explanation for the sentence it imposed, expressly grounded in various § 3553(a) factors. The court specifically considered Jacobs’ request for a downward departure or variance but reasonably declined to sentence him below the Guidelines range, concluding that such a reduction was unwarranted based on the nature and circumstances of the offense—including the substantial benefit Jacobs had received by pleading to a lesser included offense—and in order to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1), (6). rebut Further, substantive Jacobs fails reasonableness to accorded the his presumption of within-Guidelines sentence. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court’s judgment. This court requires that counsel inform Jacobs, in writing, of the right to petition the Supreme Court of the United States for 4 Appeal: 15-4593 Doc: 47 further review. Filed: 08/01/2016 Pg: 5 of 5 If Jacobs 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 Jacobs. 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 5

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