UNPUBLISHED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-cr-
00114-WO-2)
Submitted: October 14, 2010 Decided: November 4, 2010
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 base, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). We affirm.
Jacobs makes four challenges to his sentence. He
claims that the district court erred in (1) enhancing his
sentence for obstruction of justice and possession of a stolen
firearm; (2) calculating his criminal history; (3) failing to
impose a variant sentence based on the crack 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 for
reasonableness under an abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence. Id. First, the court must assess
whether the district court properly calculated the guidelines
range, considered the 28 U.S.C. § 3553(a) (2006) factors,
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. at 49-50; see
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (“[A]n
3
individualized explanation must accompany every sentence.”);
United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)
(same). 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.’” United
States v. Engle, 592 F.3d 495, 500 (4th Cir. 2010) (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 Sixth Amendment rights were violated because the
district court did not find the facts underlying the
enhancements beyond a reasonable doubt. We conclude that he is
mistaken.
4
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. See
United States v. Olano, 507 U.S. 725, 731-32 (1993); United
States v. White, 405 F.3d 208, 218-20 (4th Cir. 2005). Under
the plain error test, a defendant must show that (1) error
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 or public reputation of judicial
proceedings.” 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. Thus, Apprendi
5
and Booker do not apply (except to the extent that Booker makes
the Guidelines advisory on the sentencing court).
In any event, the district court properly imposed
sentencing enhancements for possession of a firearm and
obstructing justice. The facts underlying both 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. Specifically, he argues that his
2003 New Jersey controlled 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. The district court
considered the records of the New Jersey conviction and
6
concluded that Jacobs received a sentence of incarceration of
seventy-one days and was given credit for time served.
Crediting a defendant for time served does not equate to
imposing a sentence of probation only. We accordingly conclude
that the district court did not err 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 this court considers the substantive
reasonableness of the sentence, it takes into account the
totality of the circumstances. Gall, 552 U.S. at 51. In
assessing the substantive reasonableness of a sentence, 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. United States v. Evans,
526 F.3d 155, 160 (4th Cir.), cert. 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 100-
to-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 that they yield an excessive
sentence in a particular case.” 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. Id. at 844. However, it is
8
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.” USSG § 6A1.3(a). We
have “construed various Supreme Court decisions as
9
‘recogniz[ing] a due process right to be sentenced only on
information which is accurate.’” 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 relaxed
standard of evidence admission applied at sentencing. Moreover,
the court allowed the parties to voir dire the witness and
concluded that her testimony was reliable. We decline to
disturb that finding on appeal.
Accordingly, 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 the court and argument would not aid the decisional
process.
AFFIRMED
10