US v. Winzel Jacobs, No. 09-5102 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5102 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WINZEL DALLAS JACOBS, a/k/a Star, a/k/a OG, Defendant - Appellant. No. 09-5104 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WINZEL DALLAS JACOBS, Defendant - Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro and Durham. William L. Osteen, Jr., District Judge. (1:08-cr-00319-WO-1; 1:09-cr00114-WO-2) Submitted: October 14, 2010 Decided: Before MOTZ, GREGORY, and WYNN, Circuit Judges. November 4, 2010 Affirmed by unpublished per curiam opinion. Marc L. Resnick, Washington, D.C., for Appellant. John W. Stone, Jr., Acting United States Attorney, Robert A. J. Lang, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Winzel Dallas Jacobs appeals his conviction and 96 month sentence for one count of possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006), and one count of conspiracy to distribute cocaine violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). Jacobs claims that makes the four challenges district court to erred base, in We affirm. his He (1) enhancing in sentence. his sentence for obstruction of justice and possession of a stolen firearm; impose (2) calculating a variant his sentence criminal based on history; the (3) failing crack to cocaine/powder cocaine sentencing disparity; and (4) admitting the testimony of a Government witness at sentencing on the issue of whether Jacobs is a member of a gang. An appellate court reviews a sentence reasonableness under an abuse-of-discretion standard. United States, 552 U.S. 38, 51 (2007). consideration of both the reasonableness of a sentence. Gall v. This review requires procedural Id. for and substantive First, the court must assess whether the district court properly calculated the guidelines range, analyzed considered any the 28 arguments U.S.C. presented § 3553(a) by (2006) the sufficiently explained the selected sentence. factors, parties, and Id. at 49-50; see United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) ( [A]n 3 individualized explanation must United v. 564 States (same). Carter, accompany F.3d 325, every 330 sentence. ); (4th Cir. 2009) An extensive explanation is not required as long as the appellate court is satisfied that [the district court] has considered the parties arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority. States v. Engle, 592 F.3d 495, 500 (4th Cir. 2010) United (quoting Rita v. United States, 551 U.S. 338, 356 (2007)), cert. denied, ___ U.S. ___, 2010 WL 23245029 (October 4, 2010). Even if the sentence is procedurally reasonable, the court must consider the substantive reasonableness of the sentence, examin[ing] the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a). United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). I. Obstruction and Firearm Enhancements Jacobs, citing Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543 U.S. 220 (2005), claims that his district Sixth Amendment rights court did find not were the enhancements beyond a reasonable doubt. mistaken. 4 violated facts because underlying the the We conclude that he is First, Jacobs specifically withdrew his objections to his obstruction of justice enhancement at sentencing. In addition, he did not object in district court to the enhancement for possessing a stolen firearm. Accordingly, these claims are not preserved for appeal and are reviewed for plain error. (1993); United States v. White, 405 F.3d 208, 218-20 (4th Cir. 2005). Under the error United States plain v. error Olano, test, a 507 U.S. defendant 725, must 731-32 See show that (1) occurred; (2) the error was plain; and (3) the error affected his substantial rights. Olano, 507 U.S. at 732. Even when these conditions are satisfied, we may exercise our discretion to notice the error only if the error seriously affect[s] the fairness, integrity proceedings. or public reputation of judicial Id. (internal quotation marks omitted). First, it is clear that Jacobs misreads Apprendi and Booker. Contrary to Jacobs s claim that those cases require a district court to find facts that will enhance a sentence beyond a reasonable doubt, Apprendi actually holds that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. 530 U.S. at 490. Here, Jacobs was not subjected to an enhanced penalty beyond the prescribed statutory maximum. 5 Thus, Apprendi and Booker do not apply (except to the extent that Booker makes the Guidelines advisory on the sentencing court). In any event, the sentencing enhancements for obstructing justice. The district court possession facts properly of underlying a both imposed firearm and enhancements were set forth in Jacobs s presentence report and in adopting those factual findings, the district court did not err, let alone plainly so. II. Criminal History Calculation Jacobs next argues that the court erred in calculating his criminal history category. 2003 New Jersey controlled Specifically, he argues that his substance distribution conviction should have been counted as one criminal history point, rather than two, because he received a sentence of probation. Jacobs correctly notes that if the conviction were accorded one point, rather than two, his total criminal history points would be nine rather than ten, and he would have a criminal history category of IV, rather than V. See U.S. Sentencing Guidelines Manual (USSG) Chapter 5, part A. Pursuant to USSG § 4A1.1(b), two points are added to the defendant s criminal history score for each prior sentence of imprisonment of at least sixty days. considered the records of the 6 New The district court Jersey conviction and concluded that Jacobs received a sentence of incarceration of seventy-one Crediting days was given defendant a and for time credit served imposing a sentence of probation only. that the district court did not err for does time not served. equate to We accordingly conclude in calculating Jacobs s criminal history. III. Sentencing Disparity Jacobs next argues that the district court erred by not considering a departure from the Guidelines based on the sentencing disparities between powder cocaine and cocaine base. This is essentially a challenge to the substantive reasonableness of the sentence. Jacobs did not request a sentence below the Guidelines; rather, he specifically requested one at the low end of his advisory Guidelines range. Moreover, he did not request that the district court consider the crack/powder disparity when imposing a sentence. Our review is therefore for plain error. See Olano, 507 U.S. at 731-32. After reasonableness totality assessing of the this of the the court considers sentence, circumstances. substantive it the takes Gall, reasonableness 552 of into U.S. a substantive account at the 51. sentence, In this court presumes that a sentence within the advisory Guidelines 7 range is reasonable. Rita, 551 U.S. at 347; United States v. Smith, 566 F.3d 410, 414 (4th Cir. 2009). Even if we would have imposed a different sentence, this fact alone is insufficient to justify reversing the district court. 526 F.3d 155, 160 (4th Cir.), cert. United States v. Evans, denied, 129 S. Ct. 476 (2008). Contrary to Jacobs s representations, the district court did consider the cocaine base/cocaine powder sentencing disparity. Specifically, the court noted that: [W]hile I am well aware of the criticism of the 100to-1 ratio as well as the 20-to-1 ratio and various positions both of the Department of Justice and the Sentencing Commission at the present time in this case . . . some of the very serious attendant harms to the crack cocaine . . . that is, gang membership and at least arming oneself . . . with a firearm . . . suggest that a sentence within the guideline range constitutes a reasonable sentence. In Spears v. United States, 129 S. Ct. 840 (2009), the Supreme Court acknowledged that Kimbrough v. United States, 552 U.S. 85 (2007), stood for the proposition that sentencing courts have the authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination sentence in a particular case. that they yield an excessive Spears, 129 S. Ct. at 843. In Spears, the Supreme Court approved of the sentencing court s decision to apply a twenty-to-one ratio when imposing a sentence in a typical crack cocaine case. 8 Id. at 844. However, it is one thing to say that a district court may vary from a Guideline on policy grounds; it is quite a leap, however, to hold that it must. See id. (holding we now clarify that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines ). Here, the district court clearly understood it had the authority to vary below the Guidelines based on a consideration of something less than the current sentencing disparity between crack and powder cocaine. It properly calculated the Guidelines using the current base offense level for the quantity of crack cocaine for which Jacobs was held responsible. Accordingly, we decline to conclude that the sentence was not reasonable. IV. Evidence of Jacobs s Gang Membership Jacobs finally claims error in the court s decision to allow Kymberli Oakes, a police officer and purported expert on gang investigation, to testify that in her opinion, Jacobs was a member of the Valentine Bloods gang. A sentencing court may consider any relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability. have construed various Supreme 9 USSG § 6A1.3(a). Court decisions We as recogniz[ing] a due process right information which is accurate. to be sentenced only on United States v. Nichols, 438 F.3d 437, 440 (4th Cir. 2006) (quoting United States v. Lee, 540 F.2d 1205, 1211 (4th Cir. 1976)). Here, the district court recognized the standard of evidence admission applied at sentencing. the court allowed concluded that the her parties testimony to was voir dire the reliable. We relaxed Moreover, witness decline and to disturb that finding on appeal. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 10

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