                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-7-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3241




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"USA v. Jacobs" (2004). 2004 Decisions. Paper 862.
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                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 01-3241




                UNITED STATES OF AMERICA

                                 v.

                    QUADRE JACOBS
                            a/k/a
                       Quadree Jackson

                               Quadre Jacobs,

                                       Appellant




ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
           EASTERN DISTRICT OF PENNSYLVANIA

                   (Dist. Court No. 00-CR-313-09)
          District Court Judge: Honorable J. Curtis Joyner


                      Argued March 29, 2004

      Before: ALITO, FISHER, and ALDISERT, Circuit Judges.

                  (Opinion Filed: April 7, 2004)

                                            WILLIAM T. CANNON(Argued)
                                            Law Offices of William T.
                                            Cannon
                                                       100 South Broad Street
                                                       1910 Land Title Building
                                                       Philadelphia, PA 19110

                                                       Counsel for Appellant

                                                       KATHY A. STARK (Argued)
                                                       Suite 1250
                                                       Office of the United States
                                                       Attorney
                                                       615 Chestnut Street
                                                       Philadelphia, PA 19106

                                                       Counsel for Appellee




                              OPINION OF THE COURT


PER CURIAM:

      This is a direct appeal in a criminal case. We find Jacobs’s claims to be without

merit and affirm the District Court’s judgment and sentence.

      First, even though the jury acquitted Jacobs of the conspiracy count, the District

Court properly increased his sentence based on his significant involvement in the

distribution of approximately 11 kilos of crack cocaine. See United States v. Miele, 989

F.2d 659, 663 (3d Cir. 1993). While we agree with the District Court that the proper

standard for the District Court to use was “preponderance of the evidence” and not “clear

and convincing evidence,” compare Miele, 989 F.2d 659, 663 fn. 3 with United States v.

Kikumura, 918 F.2d 1084, 1110-1111 (3d Cir. 1990), we find that, under either standard,


                                            2
the District Court properly increased Jacobs’s sentence. The Government provided ample

evidence, including surveillance, cooperating witnesses, and physical evidence, that

convincingly showed the Jacobs acted in cahoots with his brothers, Mark and Rasheed, to

distribute over 11 kilos of crack cocaine. Not only did Jacobs help to sell crack to a

government witness, but other witnesses testified that Jacobs was often seen dealing

drugs on the corner with his brothers. Furthermore, other members of the conspiracy

testified that the brothers worked as team. With such evidence in the record, we cannot

find that the District Court was clearly erroneous in its sentencing. See Mazzocchi Bus

Co., Inc. v. C.I.R., 14 F.3d 923, 934 fn. 19 (3d Cir. 1994). Thus, any error by the District

Court in applying the proper standard was harmless.

       Second, the District Court did not err in refusing to overturn Jacobs’s firearms

convictions. Viewed in “the light most favorable to the government,” there was sufficient

evidence to prove guilt beyond a reasonable doubt. See United States v. Frorup, 963 F.2d

41, 42 (3d Cir. 1992). The jury could have believed that the firearm was in plain sight

near the door of the house. The house was used to “cook” and store substantial quantities

of crack. The jury could have believed that the firearm was kept near the door so that any

of the drug dealers residing there could readily obtain and use it against rivals in the drug

trade, law enforcement, or others. Thus, despite Jacobs’s claim that the firearm was in

the sole possession of his brother, Mark, a rational trier of fact could have found that

Quadre Jacobs, as well as his brother, had constructive possession of the firearm. See



                                              3
United States v. Demes, 941 F.2d 220, 223 (3d Cir. 1991)(proximity of guns and drugs

gives strong inference that the gun was used to further the drug crime); United States v.

Garth, 188 F.3d 99, 111-112 (3d Cir. 1999)(defining constructive possession.)

              For the above reasons, we affirm.




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