US v. Joseph Jacob

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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plea agreement.

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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

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295,

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306

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(4th

Cir.),

cert.

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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
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further review.

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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

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