NOT PRECEDENTIAL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
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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
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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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