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UNPUBLISHED PER CURIAM OPINION filed.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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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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
5
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