                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5075



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


CHARLES A. JACOBS, a/k/a Supa, a/k/a Arthur
Charles Jacobs,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-00-362)


Submitted:   December 20, 2006            Decided:   January 29, 2007


Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


James G. Connell, III, DEVINE & CONNELL, PLC, Fairfax, Virginia,
for Appellant. Lawrence J. Leiser, Michael Rich, Assistant United
States Attorneys, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A   jury    convicted      Charles    Jacobs   of   conspiracy   to

distribute five kilograms or more of cocaine and one kilogram or

more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000);

conspiracy to import five kilograms or more of cocaine and one

kilogram or more of heroin, in violation of 21 U.S.C. §§ 846,

952(a) (2000); and aiding and abetting distribution of five hundred

grams or more of cocaine, in violation of 18 U.S.C. § 2, 21 U.S.C.

§ 841(a)(1) (2000). Jacobs was sentenced prior to United States v.

Booker, 543 U.S. 220 (2005). Treating the sentencing guidelines as

mandatory, the district court sentenced Jacobs to concurrent life

sentences on the three counts.              Pursuant to United States v.

Hammoud, 378 F.3d 426 (4th Cir.) (order), opinion issued by 381

F.3d 316 (4th Cir. 2004) (en banc), vacated, 543 U.S. 1097 (2005),

the district court announced an alternative sentence of concurrent

220-month terms on the three counts.

            On appeal, Jacobs challenges his convictions and his

sentence.       For    the   reasons    that     follow,   we   affirm   Jacobs’

convictions, vacate his sentence, and remand to the district court

for resentencing consistent with Booker.1



     1
      Jacobs timely appealed and moved to remand his case to the
district court for resentencing in light of Booker. Because his
docketing statement indicated he also intended to challenge his
convictions, we deferred action on the motion to remand and
reinstated the briefing schedule.   We now deny as moot Jacobs’
pending motion to remand.

                                       - 2 -
             First,    Jacobs   claims   the   Government   impermissibly

bolstered and vouched for the testimony of its witnesses, initially

through the testimony of an agent of the Drug Enforcement Agency

(“DEA agent”) and then during the prosecutor’s closing argument.

Bolstering is an implication by the Government that the testimony

of a witness is corroborated by evidence that the Government knows,

but that the jury does not know.         United States v. Lewis, 10 F.3d

1086, 1089 (4th Cir. 1993).       Vouching occurs when an agent of the

Government indicates a personal belief in the credibility of a

witness.     Id.     Bolstering and vouching are generally, though not

necessarily, committed by the prosecutor during closing argument.

See United States v. Rosario-Diaz, 202 F.3d 54, 65 (1st Cir. 2000)

(stating prosecutor may not permissibly bolster witness through

other witnesses’ testimony); United States v. Piva, 870 F.2d 753,

760   (1st    Cir.    1989)   (stating   prosecutor’s   solicitations   of

trustworthiness from other Government witnesses may constitute

impermissible vouching).        Impermissible bolstering and vouching

mandate retrial when they “so infect[] the trial with unfairness as

to make the resulting conviction a denial of due process.”         United

States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997) (internal

quotation marks omitted).

             Jacobs alleges the Government committed “evidentiary

bolstering” through the DEA agent’s testimony.          Jacobs claims the

agent implied additional information not known to the jury by


                                    - 3 -
referring to information gleaned from individuals who did not

testify;   stating     he   and   a   fellow   DEA   agent   shared   “all   the

information” they had, even though the fellow DEA agent’s testimony

only concerned a single event; and explaining what steps he took

“to confirm or corroborate” information provided by Jacobs’ co-

defendants who testified for the Government.                 We conclude such

bolstering did not occur in this context.             Cf. Rosario-Diaz, 202

F.3d at 61 (finding FBI agent impermissibly opined concerning star

witness’   veracity    and   effectiveness      of   agency’s   interrogation

techniques rather than “properly [testifying] as to the actions he

took to corroborate [the witness’] testimony”).

            Jacobs further alleges the district court abused its

discretion when it denied his motion for a new trial, following the

prosecutor’s allegedly improper statements during closing argument.

On rebuttal, the prosecutor praised the DEA agent, contending the

agent’s hard work and diligence uncovered a large drug trafficking

network    and   led   to   Jacobs’    prosecution.      Jacobs   claims     the

prosecutor vouched for the DEA agent by equating hard work with

truthfulness and bolstered the agent’s testimony by implying the

agent’s investigation involved additional facts not known to the

jury.   However, we conclude the prosecutor neither vouched for nor

bolstered testimony.         See Sanchez, 118 F.3d at 198 (vouching

involves explicit, personal assurances of witness’ credibility or

trustworthiness); United States v. Francisco, 35 F.3d 116, 120 (4th


                                      - 4 -
Cir. 1994) (stating “the prosecution may make fair inferences from

the facts” because “closing argument is not merely a time for

recitation of uncontroverted facts”).

           Next,   Jacobs     contends   the     district   court   improperly

admitted into evidence an Internal Revenue Service certification

stating Jacobs did not file an income tax return from 1999 to 2002.

On cross-examination, Jacobs claimed he filed tax returns during

this period; the Government sought to use the certification to

impeach Jacobs’ credibility pursuant to Fed. R. Evid. 608(b).

           A witness’ credibility may not be impeached by extrinsic

evidence of specific instances of conduct, other than by evidence

of a conviction, see United States v. Blackshire, 538 F.2d 569, 572

(4th Cir. 1976), unless the extrinsic evidence is probative of a

material issue in the case.            United States v. Smith Grading &

Paving, Inc., 760 F.2d 527, 531 (4th Cir. 1985).               However, even

assuming   the     district    court     erred     in   admitting    the   IRS

certification under Rule 608(b), our weighing of the evidence of

Jacobs’ guilt gives us confidence that any such error did not

affect the jury’s verdict.2        See United States v. Ince, 21 F.3d


     2
      The parties disagree concerning the appropriate standard of
review.   The Government, noting Jacobs’ stated objection solely
concerned the time period covered by the IRS certification,
contends the issue should be reviewed for plain error. See Fed. R.
Crim. P. 52(b).     Jacobs, noting the district court expressly
discussed the IRS certification’s appropriateness under Rule
608(b), contends the scope of his objection was broader and the
issue was sufficiently preserved for appellate review. Out of an
abundance of caution, we have reviewed the issue for harmless

                                   - 5 -
576, 583 (4th Cir. 1994).             Jacobs’ trial lasted over a week and

featured more than a dozen witnesses. In addition to the testimony

of   several    cooperating     witnesses      linking     Jacobs   to    the   drug

conspiracy, the DEA agent’s telephone toll analysis linked Jacobs

to the cooperating witnesses.           We accordingly conclude “with fair

assurance, after pondering all that happened without stripping the

erroneous action from the whole,” that the jury’s verdict was not

substantially swayed by any error in admitting extrinsic evidence

under Rule 608(b).        Kotteakos v. United States, 328 U.S. 750, 765

(1946).

            Finally, Jacobs contends his concurrent life sentences

violate Booker.         Because Jacobs preserved this issue by objecting

under     Blakely   v.     Washington,       542   U.S.    296    (2004),   during

sentencing, our review is for harmless error.                    United States v.

Rodriguez, 433 F.3d 411, 415 (4th Cir. 2006).               Booker held that the

mandatory      manner    in   which    the   federal      sentencing     guidelines

required courts to impose sentencing enhancements based on facts

found by the court by a preponderance of the evidence violated the

Sixth Amendment.        Booker, 543 U.S. at 233-34.          The Court remedied

the constitutional violation by making the Guidelines advisory

through the removal of two statutory provisions that had rendered

them mandatory. United States v. Hughes, 401 F.3d 540, 546-47 (4th

Cir. 2005).


error.    See Fed. R. Crim. P. 52(a).

                                       - 6 -
               As the Government concedes, the district court sentenced

Jacobs      under     the   mandatory   federal    sentencing     guidelines   and

enhanced Jacobs’ sentence based on facts not found by the jury

beyond a reasonable doubt or admitted by Jacobs.                     This error3

affected Jacobs’ substantial rights.                    Accordingly, although we

affirm Jacobs’ convictions, we vacate his sentence and remand for

resentencing consistent with Booker and Hughes.4                 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 AND REMANDED IN PART




       3
      Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Jacobs’ sentencing. 401 F.3d at 545 n.4.
       4
      Although the sentencing guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 543
U.S. at 264. On remand, the district court should first determine
the appropriate sentencing range under the guidelines, making all
factual findings appropriate for that determination. Hughes, 401
F.3d at 546. The court should consider this sentencing range along
with the other factors described in 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2006), and then impose a sentence. Hughes, 401 F.3d
at 546. If that sentence falls outside the guidelines range, the
court should explain its reasons for the departure as required by
18 U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2006). Hughes, 401
F.3d at 546. The sentence must be “within the statutorily
prescribed range and . . . reasonable.” Id. at 547.

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