UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4216
COREY JACOBS, a/k/a Buck,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry Coke Morgan, Jr., District Judge.
(CR-93-117)
Submitted: October 3, 2003
Decided: October 24, 2003
Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert Ratliff, Mobile, Alabama, for Appellant. Paul J. McNulty,
United States Attorney, Laura M. Everhart, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. JACOBS
OPINION
PER CURIAM:
Corey Jacobs was convicted by a jury of conspiracy to possess with
intent to distribute and distribute, inter alia, more than five kilograms
of cocaine and more than fifty grams of cocaine base (crack), as well
as eighteen substantive drug counts and two counts of interstate travel
in aid of drug trafficking. While drug quantities were charged in the
conspiracy count and certain distribution counts, drug quantity was
not submitted to the jury as an element of any of the charged offenses.
Jacobs was sentenced to sixteen life sentences, two twenty-year sen-
tences, a forty-year sentence, and two five-year sentences, all concur-
rent. He appeals his convictions and sentence. We affirm.
The conspiracy ran from 1988 to 1993. Jacobs was not appre-
hended until 1999. He was tried in January 2000 and sentenced in
May 2000. Many of his co-conspirators testified during the six-day
trial. The government’s evidence showed that Jacobs and others trans-
ported large quantities of cocaine and crack from New York to Nor-
folk, Virginia, where the drugs were distributed. Jacobs testified that
he had no involvement in the drug conspiracy.
Jacobs first contends that the district court erred in permitting the
government to introduce evidence that several co-conspirators were
shot during the conspiracy and that he and other conspirators pur-
chased firearms, sometimes illegally, during the period of the conspir-
acy. He argues that, under Rule 404(b) of the Federal Rules of
Evidence, these events were not admissible because they were uncon-
nected with the charged drug offenses. Rule 404(b) provides that evi-
dence of a defendant’s "other crimes, wrongs, or acts is not
admissible to prove" bad character but may be admissible to prove
"motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident. . . ." Such evidence may not be
more prejudicial than probative. Fed. R. Evid. 403. The district
court’s decision to admit evidence of prior bad acts is reviewed for
abuse of discretion. United States v. Queen, 132 F.3d 991, 998 (4th
Cir. 1997). Rule 404(b) does not apply to acts that are "intrinsic to the
crime charged, and . . . not admitted solely to demonstrate bad charac-
ter. . . ." United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996). Here,
UNITED STATES v. JACOBS 3
all the evidence Jacobs complains of was directly connected to the
charged drug conspiracy, not evidence of other, unrelated crimes.
Therefore, Rule 404(b) did not apply and the district court did not
abuse its discretion in admitting the evidence.
Jacobs next alleges that he was prejudiced by statements made by
the government attorney during opening and closing argument. To
prevail on a claim of prosecutorial misconduct, a defendant must
show: (1) the government’s remarks and conduct were improper; and
(2) the remarks or conduct prejudicially affected his substantial rights
so as to deprive him of a fair trial. United States v. Golding, 168 F.3d
700, 702 (4th Cir. 1999). To determine whether such prejudice
resulted, the appellate court considers: "(1) the degree to which the
prosecutor’s remarks have a tendency to mislead the jury and to prej-
udice the accused; (2) whether the remarks were isolated or extensive;
(3) absent the remarks, the strength of competent proof introduced to
establish the guilt of the accused; and (4) whether the comments were
deliberately placed before the jury to divert attention to extraneous
matters." United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir.
1983). Having reviewed each of the statements complained of, we
conclude that Jacobs has not met this burden.
Jacobs challenges his conviction and sentence based on the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466
(2000) (holding that "[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statu-
tory maximum must be submitted to a jury and proved beyond a rea-
sonable doubt."). Apprendi was decided after Jacobs was sentenced,
but it is applicable to cases pending on direct appeal. Griffith v. Ken-
tucky, 479 U.S. 314, 328 (1987). However, because Jacobs did not
object to the jury instructions on the ground he raises here, the plain
error standard of review applies. United States v. Olano, 507 U.S.
725, 731-32 (1993) (before appellate court will notice plain error (1)
there must be error; (2) it must be plain under current law; (3) it must
affect substantial rights, typically meaning the defendant is prejudiced
by the error in that it affected the outcome of the proceedings; and (4)
the error must seriously affect the fairness, integrity, or public reputa-
tion of judicial proceedings). Apprendi does not affect the validity of
Jacobs’ conviction, but the government concedes that his sentences of
life imprisonment exceed the twenty-year statutory maximum sen-
4 UNITED STATES v. JACOBS
tence for counts charging an unspecified quantity of crack and
cocaine and are plain error under Apprendi. The government argues
that error did not affect Jacobs’s substantial rights.
Jacobs made no objections to the presentence report. His offense
level was 46 and he was in criminal history category II. Thus, his
undisputed guideline range was life imprisonment. His convictions
exposed him, under Apprendi, to a total statutory maximum prison
term of 390 years. United States v. Angle, 254 F.3d 514, 518-19 (4th
Cir. 2001) (en banc) (applying United States v. White, 238 F.3d 537,
542-43 (4th Cir. 2001)). Had the district court sentenced Jacobs in
accord with Apprendi, it would have been required to "stack" Jacobs’
sentences consecutively under U.S. Sentencing Guidelines Manual
§ 5G1.2(d) (1998), to achieve a sentence within the guideline range,
if possible. United States v. Roberts, 262 F.3d 286, 291 (4th Cir.
2001), cert. denied, 535 U.S. 991 (2002). Jacobs would thus have
been sentenced to 390 years imprisonment, in effect a life sentence.
As in Roberts, Jacobs did not contest the drug quantities alleged in the
indictment and has not shown that he would have been exposed to
less than a life sentence on every count for which he received a life
sentence.* Therefore, Jacobs has not shown that his substantial rights
were affected.
Jacobs contests the three-level role enhancement he received on the
ground that it increased his guideline range but was not submitted to
the jury. This issue is without merit. This court has held that factual
determinations that do not increase the statutory maximum sentence
need not be submitted to the jury. United States v. Kinter, 235 F.3d
192, 201 (4th Cir. 2000).
Next, Jacobs argues that his conviction was based on insufficient
evidence. A jury’s verdict "must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to sup-
port it." Glasser v. United States, 315 U.S. 60, 80 (1942).
*We noted in Roberts that, if "a defendant had received three concur-
rent life sentences under a statute with a 20-year statutory maximum, we
would be much more hesitant to apply this rationale, as it is possible that
a defendant could live for 60 more years." Roberts, 262 F.3d at 292.
UNITED STATES v. JACOBS 5
Jacobs here contends that the government failed to prove his
involvement in the conspiracy, proving at most that he had a buyer-
seller relationship with certain witnesses. He argues that the evidence
proved at best five separate conspiracies involving his co-defendants
and co-conspirators, but not a single conspiracy in which he was
implicated. We find his argument unpersuasive. A single conspiracy
exists where there is one overall agreement or business venture.
United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988). While the
materials submitted on appeal do not contain the entire trial transcript,
the testimony that has been made available establishes that Jacobs
was deeply involved with at least one person (usually more) in each
of the five groups of people that Jacobs seeks to portray as separate
conspiracies. The evidence shows that Jacobs was involved with
many people in the pursuit of his continuing drug business, rather
than separate conspiracies.
Arguing for a change in the existing law, Jacobs concedes that this
court has held that a trial court should not define the term "reasonable
doubt." United States v. Najjar, 300 F.3d 466, 486 (4th Cir.), cert.
denied, 537 U.S. 1094 (2002). Even if we were so inclined, a panel
may not overrule or reconsider a precedent set by another panel. Id.
n.8.
Jacobs contends that his attorney was ineffective in failing to
research case law under Apprendi, failing to cross examine witnesses
concerning drug amounts, and failing to secure the appearance of a
Mr. Bratcher. Claims of ineffective assistance of counsel are not prop-
erly raised on direct appeal unless the record conclusively reveals that
the defendant’s representation was defective. United States v. Vin-
yard, 266 F.3d 320, 333 (4th Cir. 2001), cert. denied, 536 U.S. 922
(2002). The record is not conclusive in this case. Apprendi had not
been decided when Jacobs was convicted and sentenced and Jacobs
does not explain why Mr. Bratcher’s appearance would have been
significant. Therefore, his claim of ineffective assistance should be
raised in a motion to vacate pursuant to 28 U.S.C. § 2255 (2000). See
United States v. Goddard, 170 F.3d 435, 438 (4th Cir. 1999) (second,
substantive § 2255 motion not precluded by prior § 2255 motion
seeking reentry of judgment to permit direct appeal).
Finally, Jacobs argues that the government violated the federal
bribery law, 18 U.S.C. § 201(c)(2) (2000), when it promised immu-
6 UNITED STATES v. JACOBS
nity and the possibility of sentence reductions to co-defendants who
testified at his trial. We have previously rejected this argument. See
United States v. Stitt, 250 F.3d 878, 900 (4th Cir. 2001), cert. denied,
535 U.S. 1074 (2002).
We therefore affirm the conviction and sentence imposed by the
district court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED