                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-6-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2711




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                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                    NO. 05-2711
                                  ________________

                           UNITED STATES OF AMERICA

                                            v.

                               ORLANDO JACOBS,
                                                Appellant.
                      ____________________________________

                    On Appeal From the United States District Court
                      For the Western District of Pennsylvania
                             (D.C. Crim. No. 93-cr-00141-1)
                    District Judge: Honorable Thomas M. Hardiman
                             __________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 13, 2005

        BEFORE: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES

                                (Filed : January 6, 2006 )

                                  _________________

                                      OPINION
                                  _________________


PER CURIAM

      Appellant Orlando Jacobs was convicted following a jury trial in United States

District Court for the Western District of Pennsylvania of possession of a weapon by a

convicted felon in violation of 18 U.S.C. §§ 922(g)(1). The indictment alleged that
Jacobs possessed a .357 magnum revolver, after having been previously convicted in the

Court of Common Pleas of Allegheny County, Pennsylvania, for the crime of burglary.

Applying the "Armed Career Criminal" provision of the Guidelines, U.S.S.G. § 4B1.4,

the sentencing court concluded that Jacobs' guidelines' sentencing range was 262 to 327

months, and the court sentenced him to imprisonment for 22 years.

       We affirmed in United States v. Jacobs, 44 F.3d 1219 (3d Cir. 1995), and Jacobs’

petition for writ of certiorari was denied. A motion to vacate sentence under 28 U.S.C. §

2255 was denied by the sentencing court, and, in 1999, we denied Jacobs’ request for a

certificate of appealability with respect to that decision. We then denied an application

made by Jacobs in 2001 for leave to file a second or successive section 2255 motion.1

       In May 2004, Jacobs filed a motion in the district court for clarification and

correction of sentence pursuant to 18 U.S.C. § 3582(c)(2). He argued that Amendment

599 to the Guidelines applied to him and would lower his applicable sentencing range.

He also contended that a four-level enhancement under U.S.S.G. § 2K2.1(b)(5) for

recklessly endangering the arresting officer was improperly assessed under United States

v. Fenton, 309 F.3d 825 (3d Cir. 2002), a case we decided after the conclusion of Jacobs’

section 2255 proceedings. In a somewhat related claim, he contended that the offense

conduct of recklessly endangering the arresting officer was impermissibly double counted

   1
     In that application, Jacobs had contended that his sentence was enhanced pursuant to
the Armed Career Criminal Act even though the indictment did not charge him with, nor
did the jury find him guilty of, violating 18 U.S.C. § 924(e)(1), which imposes a fifteen
year minimum sentence for career criminals who violate section 922(g).

                                             2
under both § 4B1.4(b)(3) and § 2K2.1(b)(5).

       The District Court addressed Jacobs’ claim concerning the applicability of

Amendment 599 as one properly raised pursuant to 18 U.S.C. § 3582(c)(2), but the court

would not consider the remaining claims, because they did not involve an amendment to

the Guidelines. Relief was denied as to Amendment 599 because it did not apply to

Jacobs. Jacobs filed a timely motion for reconsideration, which was denied in an order

entered on May 12, 2005. Jacobs appeals.

       We will affirm. Section 3582(c)(2) provides that, upon motion of a defendant, the

court may reduce a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).

Amendment 599 went into effect on November 1, 2000 and expanded the commentary to

U.S.S.G. § 2K2.4 on use of a firearm during or in relation to certain crimes. It was made

retroactive pursuant to § 1B1.10. Amendment 599 was intended to clarify the

circumstances in which a defendant sentenced for a violation of 18 U.S.C. § 924(c) in

conjunction with convictions for other offenses may receive weapon enhancements

contained in the Guidelines for those other offenses. See U.S. Sentencing Guidelines

Manual app. C, vol. II, at 69-70 (2003).

       Jacobs was convicted of violating § 922(g)(1). He was not charged with violating

18 U.S.C. § 924(c), and his sentence was not based on guidelines germane to that statute.

Amendment 599 does not apply to or modify the guidelines under which he was



                                            3
sentenced. The District Court did not err in rejecting this claim.

       We further agree with the District Court that the remaining claims cannot be

brought under section 3582(c)(2), because they are not founded on a change in the

Guidelines. In Fenton, 309 F.3d 826, we held that, for purposes of applying the four-level

enhancement under § 2K2.1(b)(5), the phrase “another felony offense” means a felony or

act other than the one used by the sentencing court to calculate the base offense level. Id.

at 827. More recently, in United States v. Lloyd, 361 F.3d 197 (3d Cir. 2004), we

explained that: “We read Fenton ... as standing for the proposition that, where a defendant

is convicted for possession of firearms resulting from a theft of those same firearms, that

theft is effectively a "firearms possession ... offense." Id. at 202.

       Fenton thus concerned the interpretation of an existing Guideline. It did not

involve a sentencing range that subsequently had been lowered “by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). Jacobs’ claim under Fenton, and his related

double counting claim involving § 4B1.4(b)(3) and § 2K2.1(b)(5), are the kinds of

contentions appropriately raised on direct appeal, or, if waived, in a section 2255 motion

to vacate sentence upon a showing of cause and prejudice. United States v. Frady, 456

U.S. 152 (1982).

       Second collateral challenges to a conviction and sentence, like this one of Jacobs’

involving our decision in Fenton, are barred under the Antiterrorism and Effective Death

Penalty Act, see 28 U.S.C. §§ 2255 and 2244, unless they are certified by a court of



                                               4
appeals to contain a prima facie showing of newly discovered evidence that would be

sufficient to establish that no reasonable factfinder would have found the movant guilty of

the offense or a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable. These claims have not

been appropriately certified nor would certification be warranted.

       The Fenton and related double counting claims lack merit in any event. Jacobs

was sentenced as an armed career criminal under U.S.S.G. § 4B1.4. Jacobs, 44 F.3d at

1227. The enhancement under § 2K2.1(b)(5) played no role in the actual determination

of his sentence. In addition, Fenton does not affect the applicability of the armed career

offender guideline in Jacobs’ case. The government’s evidence established that, as the

arresting officer approached with his gun drawn, Jacobs pulled his weapon from his

waistband and pointed it at him. Jacobs, 44 F.3d at 1221. His act of doing so establishes

that he possessed the gun in connection with another felony offense; thus, an

enhancement was warranted under either § 2K2.1(b)(5) or § 4B1.4(b)(3). The crime of

recklessly endangering another in violation of 18 Pa. Cons. Stat. Ann. § 2705 involves a

sufficient distinction in conduct from the crime of possession so as to constitute "another

felony offense" for purposes of § 2K2.1(b)(5). See generally Lloyd, 361 F.3d at 204

(holding that state law crime of criminal mischief is distinct from crime of possession of

unregistered explosives under Blockburger).2

   2
    Like the state law crime at issue in Lloyd, this second degree misdemeanor with
which Jacobs was charged is punishable by up to two years in prison, 18 Pa. Cons. Stat.

                                             5
       Finally, Jacobs has argued in his informal brief that his sentence enhancement for

pointing a gun at the arresting officer violates the Sixth Amendment because it was based

on facts determined by a judge instead of a jury, but we recently held that Booker v.

United States, 125 S. Ct. 738 (2005), does not apply retroactively to cases on collateral

review. Lloyd v. United States, 407 F.3d 608, 614-16 (3d Cir.), cert. denied, 126 S. Ct.

288 (U.S. October 3, 2005).

       We will affirm the order of the District Court denying the motion for clarification

and correction of sentence.




Ann. § 1104(2), and it thus is sufficient to constitute a felony under the Guidelines.
Lloyd, 361 F.3d at 204 (citing U.S.S.G. § 2K2.1, cmt. n.7).

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