US v. Rashad Jacobs, No. 14-4090 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4090 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RASHAD JACOBS, Defendant - Appellant. No. 14-4092 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RASUL GATFORD, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:13-cr-00010-BO-3; 7:13-cr-00010-BO-2) Submitted: August 21, 2014 Decided: September 3, 2014 Before NIEMEYER, SHEDD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Ronald Cohen, Wilmington, North Carolina; Daniel Henry Johnson, WILLIS JOHNSON & NELSON, PLLC, Raleigh, North Carolina, for Appellants. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Shailika K. Shah, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Rashad Jacobs and Rasul Gatford each pled guilty, pursuant to a plea agreement, to brandishing a firearm during a drug trafficking crime, in violation of 18 U.S.C. §§ 2, 924(c) (2012). The district imprisonment, Sentencing an court upward Guidelines sentenced variance range. Manual § 2K2.4(b) (2013). of See them 36 U.S. to 120 months review the from Sentencing the Guidelines Jacobs and Gatford appeal, claiming that their sentences are substantively unreasonable. We months district court s We affirm. sentence, whether inside, just outside, or significantly outside the Guidelines range[,] for reasonableness discretion standard. 51 (2007). totality a deferential abuse-of- Gall v. United States, 552 U.S. 38, 41, Because Jacobs and Gatford do not challenge the procedural attention under reasonableness to of substantive the of their sentences, reasonableness circumstances, including variance from the Guidelines range. we turn and consider the extent Id. at 51. of our the any An upward variance is permitted where justified by the 18 U.S.C. § 3553(a) (2012) factors. See id. We must give due deference to the district decision that court s the § 3553(a) factors, on a whole, justify the extent of a variance, and [t]he fact that [we] might reasonably have concluded that a different sentence 3 was appropriate is insufficient district court. and justify reversal of the Id. Jacobs to Gatford assert that the district court improperly relied upon the need to avoid unwarranted sentencing disparities under 18 U.S.C. § 3553(a)(6) to the exclusion of the other statutory sentencing factors. court described how Appellants We disagree. individual The district actions were more culpable than those of defendants with similar charges and were analogous to discharging a firearm. We also conclude that the court did not improperly rely upon the sentence imposed on a codefendant to determine the length of the variance. Jacobs and Gatford also argue that their sentences are contrary to Congress intent for different mandatory minimum sentences to apply to brandishing and discharging a firearm. However, Congress left imposing sentences of district seven years firearm if the facts so warranted. (declining to set maximum courts or with more the for option brandishing of a See 18 U.S.C. § 924(c)(1)(A) sentence). Therefore, Congress intent in formulating § 924(c) does not render unreasonable the district court s imposition of 120-month sentences under § 924(c)(i)(A)(ii). To the extent Appellants raise new claims in their reply brief, those claims are not properly before the court. See United States v. Ashford, 718 F.3d 377, 383 n.* (4th Cir. 2013). 4 Accordingly, we hold that the upward variance imposed by the district court is substantively reasonable, and we affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 5
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