US v. Frank Jacobs, No. 13-4219 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4219 UNITED STATES OF AMERICA, Plaintiff Appellee, v. FRANK JACOBS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, District Judge. (7:12-cr-00084-FL-4) Submitted: October 25, 2013 Decided: November 19, 2013 Before MOTZ, DIAZ, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Mark D. Stewart, BURCH LAW OFFICE, Greenville, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Frank Jacobs appeals from his twenty-nine-month sentence imposed pursuant to his guilty plea to conspiracy to possess and train animals for a fighting venture. On appeal, he claims substantively that his sentence was procedurally and unreasonable because the district court (1) did not adequately explain the chosen sentence, (2) did not address each of Jacobs sentencing arguments, and (3) selected a sentence based in part on the sovereign citizen documents. We affirm. We review a sentence for reasonableness, applying an abuse of discretion standard. 38, 46 (2007). We first Gall v. United States, 552 U.S. review for significant procedural error, and if the sentence is free from such error, we then consider the substantive reasonableness of the sentence. 51. Procedural error includes improperly Id. at calculating the Guidelines range, treating the Guidelines range as mandatory, failing to consider the 18 U.S.C. § 3553(a) (2012) factors, and failing to Substantive totality of adequately explain reasonableness the the is selected determined circumstances, including deviation from the Guidelines range. Id. by the sentence. Id. considering the extent of any An upward variance is permitted where justified by the § 3553(a) factors. See id. We must give due deference to the district court s determination that the § 3553(a) factors justify the extent of a variance, and 2 the fact that we might find a different sentence appropriate is insufficient to justify reversal of the district court. Id. We conclude that Jacobs above-Guidelines sentence is reasonable. 1 Guidelines treated The range the selected district court (and Jacobs as advisory, range sentence. The properly does not and court calculated contend adequately specifically Jacobs otherwise), explained explained the that Jacobs above-Guidelines sentence was warranted by the heinous quality of the crime, Jacobs extended involvement, and danger inherent in his promotion of dog fighting as a sport. the In addition, the court considered that no points were added for Jacobs prior weapon. convictions, including assault with a deadly In so doing, the court explicitly addressed Jacobs arguments concerning his substantially shorter Government. While age and than the sentence the court did selected not a advocated specifically sentence by the address Jacobs assertions regarding his compliance on release and his plans for a new church, the court did state that it took into consideration all the sentencing factors. 1 The advisory Guidelines months. 3 range was Because the court eight to fourteen clearly considered the individual circumstances of the case, we conclude that Jacobs sentence is procedurally reasonable. 2 We also find that Jacobs sentence is substantively reasonable, considering the totality of including the extent of the departure. more than doubles the high-end of the circumstances, Though Jacobs sentence his Guidelines range, the district court did not abuse its discretion in determining that such a including deviation Jacobs was justified criminal by history, the the § need 3553(a) to factors, protect public, and the need to provide adequate deterrence. the Thus, we conclude that Jacobs twenty-nine-month sentence is reasonable. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 2 Regarding the sovereign citizen documents, the district court did not refer to them when imposing sentence. Thus, while the court did express concern regarding these documents earlier in the sentencing hearing, it is far from certain that they carried any weight in the court s final decision. Nonetheless, the PSR described the documents as indicating that Jacobs believed he was not subject to the law, and Jacobs presented no evidence either showing that the documents did not exist or were misconstrued. Thus, the court was free to accept the information in the PSR as true. See United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). 4