                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-23-2008

USA v. Jacobs
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3135




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                                                         NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 06-3135
                                     ___________

                          UNITED STATES OF AMERICA


                                           v.

                                  MARK JACOBS,

                                                          Appellant.
                                     ___________

                   On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         (D.C. Criminal No. 00-cr-00313-03)
                      District Judge: Honorable J. Curtis Joyner
                                    ___________

                    Submitted Under Third Circuit L.A.R. 34.1(a),
                                September 11, 2008

          Before: SLOVITER, FUENTES, and ALDISERT, Circuit Judges.

                          (Opinion Filed: September 23, 2008)


                             OPINION OF THE COURT


FUENTES, Circuit Judge:

      Mark Jacobs appeals the reimposition of his original 404 month sentence after his


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case was remanded by the Supreme Court for resentencing in light of United States v.

Booker, 543 U.S. 220 (2005). He asserts that the District Court unreasonably trivialized

evidence of his post-conviction rehabilitation and failed to consider its ramifications for

his risk of recidivism under 18 U.S.C. § 3553(a). He also charges that the sentence was

substantively unreasonable. Because we find these arguments to be without merit, we will

affirm.

          In January 2000, Jacobs entered open guilty pleas to fourteen counts relating to his

extensive participation in a conspiracy to distribute cocaine and cocaine base, including a

charge of possession of a firearm in furtherance of a drug trafficking crime. He had no

previous convictions. On August 29, 2001, he was sentenced to 344 months’

imprisonment for the drug trafficking offenses and a consecutive 60 months’

imprisonment for the firearms offense. The total sentence of 404 months was within the

relevant Sentencing Guidelines range of 324 to 405 months. Jacobs’s sentence was

affirmed on appeal, but the case was remanded by the Supreme Court for resentencing

under Booker.

          At the resentencing hearing, Jacobs primarily presented evidence of his post-

conviction rehabilitation, including his progress in paying the fines assessed as part of his

sentence, his lack of disciplinary infractions in prison, his reportedly good behavior

overall, his successful pursuit of a G.E.D., and his diligent work with the heating,

ventilation, and air conditioning detail at the prison to develop marketable job skills .



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       In response to the evidence of Jacobs’ changed behavior, the District Court stated:

       The difficulty in your circumstances is that it had to take prison to make
       these changes in you. You had opportunities that were presented to you
       outside, like to get your high school diploma, your GED, but you shut that
       down while you were out in the Street. You were into making money. You
       were selling crack cocaine. It was a big hustle. You were living large. . . .

       Don’t get me wrong, I appreciate the efforts that you have made since
       you’ve been in prison . . . . But, like I said, it’s unfortunate that you didn’t
       take these opportunities when you had the freedom out there on the Street.

App. 14-16. The judge found that the original sentence of 404 months’ incarceration was

still appropriate, noting:

       I considered the totality of the person who appeared before me today, but I can’t
       erase the significant involvement that you had in the events that brought you here
       to this Court. . . . [The previous sentence] was an appropriate sentence pursuant to
       your involvement in the crimes charged, and the significant effect these crimes
       have had on the community. To sentence you to a lesser sentence . . . would
       depreciate the seriousness of the offense.

App. 22-23.

       “The record must demonstrate the trial court gave meaningful consideration to the

§ 3553(a) factors,” United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). Those

factors include the “nature and circumstances of the offense and the history and

characteristics of the defendant,” as well as the need for the sentence “to reflect the

seriousness of the offense,” “afford adequate deterrence to criminal conduct,” and

“protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a). The above

excerpts from the record make it clear that the District Court seriously considered Jacobs’

post-conviction rehabilitation within the framework of these factors and simply found it

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to be outweighed by the significance of his offense conduct.

       In light of the deference given to a trial court judge’s application of the § 3553(a)

factors, especially a judge who has imposed (or re-imposed) a sentence within the

Guidelines range, this conclusion represented a substantively reasonable balancing of the

statutory factors. Cooper, 473 F.3d at 330-31. This court has expressed its view that “a

court, except in unusual cases, should consider only conduct and circumstances in

existence at the time of the original sentencing when it resentences following a Booker

remand.” United States v. Lloyd, 469 F.3d 319, 325 (3d Cir. 2006). We agree with the

District Court that Jacobs’ post-conviction rehabilitation, while commendable, was not

exceptional enough to justify a reduction in his sentence when other federal prisoners

have behaved equally well yet have not had the opportunity to seek resentencing. See

id. at 325 (“After all, an approach permitting a defendant's post-sentencing rehabilitation

efforts to impact on a resentence ‘would unfairly disadvantage defendants who were

ineligible for re-sentencing and therefore had no opportunity to bring their rehabilitative

efforts before the sentencing court.’”) (citation omitted).

       As for Jacobs’ status as a first-time offender, that variable is already implictly

included in the calculation of the Sentencing Guidelines range by considering a

defendant’s criminal history category. In correctly computing the Guidelines range here,

which Jacobs has not challenged, the District Court sufficiently took account of Jacobs’

lack of a criminal history. See United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)



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(“ [A] court [need not] discuss and make findings as to each of the § 3553(a) factors if the

record makes clear the court took the factors into account in sentencing.”); cf. United

States v. Zastrow, 534 F.3d 854 (8th Cir. 2008) (finding that district court had considered

defendant’s clean criminal record because it had correctly used criminal history Category

I, for first-time offenders, in arriving at Guidelines range).

       For the foregoing reasons, the judgment of sentence will be affirmed.




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