                                                         NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                               No. 08-3276




                    UNITED STATES OF AMERICA,

                                    v.

                           RASHEED JACOBS,
                     also known as RASHID JACOBS

                                 Rasheed Jacobs,
                                            Appellant


              On Appeal from the United States District Court
                 for the Eastern District of Pennsylvania
                      (D.C. No. 2-00-cr-00313-010)
                District Judge: Honorable J. Curtis Joyner


                Submitted Under Third Circuit LAR 34.1(a)
                             April 12, 2010

Before: SLOVITER, NYGAARD, Circuit Judges, and RESTANI* , Judge

                          (Filed: April 13, 2010)


                                OPINION
                                _______



          *
            Hon. Jane A. Restani, Chief Judge, United States Court of
   International Trade, sitting by designation.
SLOVITER, Circuit Judge.

       Appellant Rashid Jacobs appeals his conviction and sentence for (1) possession

with the intent to distribute cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1); (2)

possession with the intent to distribute cocaine base (crack) within 1,000 feet of a school,

in violation of 21 U.S.C. § 860; (3) use of a firearm during and in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and (4) possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). We will affirm.

                                              I.

       Rashid Jacobs and his younger brother Quadre worked for their older brother,

Mark, who controlled drug operations on the 2900 block of Bonsall Street in North

Philadelphia.1

       During a search of the Jacobs brothers’ house, law enforcement officers recovered

a loaded .40 caliber pistol, bulk and packed crack cocaine and crack cocaine packaged for

sale in clear vials. Rashid, along with thirteen other individuals, was indicted with

conspiracy to distribute more than fifty grams of cocaine base in violation of 21 U.S.C. §

846, and related distribution and firearms offenses. Several co-conspirators testified

about the drug operation run by the Jacobs brothers. For example, Arnold Eugene Mack

testified that he “began cooking crack cocaine” for Mark and Rashid in 1998. App. at 82.




                    1
                      We will hereafter distinguish between the Jacobs brothers
             by referring to them by their first name.

                                              2
Rashid was convicted by a jury of one count of possession of crack with the intent to

distribute, in violation of 21 U.S.C. § 841(a)(1); one count of possession of crack with the

intent to distribute within 1,000 feet of a school, in violation of 21 U.S.C. § 860; one

count of using a firearm during and in relation to a drug trafficking crime, in violation of

18 U.S.C. § 924(c)(1)(A); and one count of possession of a firearm by a convicted felon,

in violation of 18 U.S.C. § 922(g)(1).

       At the original sentencing hearing, the District Court, after considering the

testimony presented, agreed with the conclusion in the presentence report (“PSR”) that

Rashid and his brothers were responsible for the distribution of 11.2 kilograms of crack.

It further found that Rashid was in criminal history category I, and sentenced him to a

total of 374 months imprisonment, six years of supervised release, a $2,000 fine, and a

$400 special assessment.

       Rashid appealed his conviction and sentence and this court affirmed both. See

United States v. Jacobs, 96 Fed. Appx. 812 (3d Cir. 2004) (per curiam). He then

petitioned for certiorari. Shortly after issuing its decision in United States v. Booker, 543

U.S. 220 (2005), the Supreme Court vacated Rashid’s sentence and remanded for further

consideration in accordance with that decision. See United States v. Jacobs, 543 U.S.

1102 (2005).

       At the Booker resentencing hearing, Rashid challenged the quantity determination



                                              3
contained in the PSR that was adopted by the District Court. He contended that it was

based exclusively on Mack’s testimony, which he argued was too speculative. The

District Court rejected Rashid’s challenge to the quantity determination, stating that

nothing he presented provided a basis to change its earlier determination. Rashid asked

the court to impose a 240-month sentence, arguing primarily that he was “similarly

situated” to his brother Quadre, who had received that sentence at his Booker

resentencing. App. at 4. The Government responded that Rashid was more culpable than

Quadre, and that the 30-to 45-year sentences other co-defendants had received after their

Booker resentencing reflected their greater culpability. After reviewing the Section

3553(a) factors, the District Court sentenced Rashid to 240 months imprisonment, more

than eleven years less than the sentence previously imposed and below the advisory

guideline range. Rashid filed a timely notice of appeal.2

                                             II.

       We review a district court’s sentencing decision for reasonableness, United States

v. Grier, 475 F.3d 556, 568-69 (3d Cir. 2007) (en banc) (citing Booker, 543 U.S. at

260-61), and its drug quantity findings for clear error. United States v. Yeung, 241 F.3d

321, 322 (3d Cir. 2001). Under the Sentencing Guidelines, the base offense level for a

drug offense is determined by the weight of the controlled substance for which the




                   2
                    This court has jurisdiction pursuant to 28 U.S.C. § 1291
            and 18 U.S.C. § 3742.

                                             4
defendant is held accountable. See U.S.S.G. § 2D1.1. The determination of the drug

quantity must be supported by a preponderance of the evidence, and such evidence “must

possess sufficient indicia of reliability to support its probable accuracy.” United States v.

Gibbs, 190 F.3d 188, 203 (3d Cir. 1999)(quoting United States v. Miele, 989 F.2d 659,

663 (3d Cir. 1993)(internal quotation marks omitted).

       In arguing that the drug quantity for which he was held responsible was based

entirely upon the “speculative” testimony of Mack, Rashid cites to Lee v. Illinois, 476

U.S. 530, 545 (1986), where the Court stated that “a codefendant’s confession is

presumptively unreliable as to the passages detailing the defendant’s conduct or

culpability . . . .” However, in making the quantity determination, the District Court did

not rely solely on Mack’s testimony but on extensive other testimony which was

presented at trial and subject to cross-examination.

       This included the testimony by law enforcement officers about the activity that

occurred at the corner where Rashid worked, testimony from a drug user who purchased

from Rashid, and testimony from a drug seller about the activity that was going on at the

corner where the Jacobs brothers worked. There was ample evidence to support the

District Court’s conclusion that the Government proved by preponderance of the evidence

that Jacobs distributed 11.2 kilograms of crack cocaine.

                                             III.

       Rashid next challenges his sentence of twenty years because he received the same



                                              5
sentence as his brother Quadre, who had a higher criminal history category. As we noted

already, Rashid had initially argued that he was similarly situated to his brother Quadre,

and he asked the Court to impose a comparable, if not identical, sentence. The

Government responds that Rashid was more culpable than Quadre as there is evidence

that Quadre worked for both Mark and Rashid. We have made clear that disparate

sentences are reasonable where facts on the record justify the disparity. United States v.

Parker, 462 F.3d 273, 278 (3d Cir. 2006). In its discretion, the District Court decided that

the distinction between Quadre’s and Rashid’s criminal histories did not warrant a lower

sentence for Rashid because it was outweighed by Rashid’s greater degree of culpability.

We have no basis to disagree.

       Nor do we agree with Rashid that his sentence was unreasonable. Rashid’s crime

involved the distribution of crack in concert with his brothers over a period of years,

accompanied by possession of a gun. These are crimes for which Congress and the

Sentencing Commission have advocated substantial sentences. Moreover, in imposing

sentence, the District Court followed the required sentencing protocol by taking into

consideration the Section 3553(a) factors.

                                             IV.

       For the reasons set forth above, we will affirm the District Court’s judgment of

sentence.




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