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


4-23-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2608




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"USA v. Jacobs" (2004). 2004 Decisions. Paper 787.
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                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 01-2608




                UNITED STATES OF AMERICA

                                 v.

                       RASHEED JACOBS

                                       Appellant




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

                   (Dist. Court No. 00-CR-313-10)
          District Court Judge: Honorable J. Curtis Joyner


                      Argued March 29, 2004

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

                  (Opinion Filed: April 23, 2004)

                                            MARLENE S. COOPERMAN
                                            (Argued)
                                            Suite 940
                                            6 th & Chestnut Streets
                                            Public Ledger Building
                                            Philadelphia, PA 19106
                                                       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 fn. (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,

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

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


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

distribute over 11 kilos of crack cocaine. Jacobs lived in the same house as his two

brothers, used the same crack cocaine cooker as his brother Mark, and 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

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

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.



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

             For the above reasons, we affirm.




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