UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 that his sentence was procedurally and substantively
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. Gall v. United States, 552 U.S.
38, 46 (2007). We first review for significant procedural
error, and if the sentence is free from such error, we then
consider the substantive reasonableness of the sentence. Id. at
51. Procedural error includes improperly 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 adequately explain the selected sentence. Id.
Substantive reasonableness is determined by considering the
totality of the circumstances, including the extent of any
deviation from the Guidelines range. Id. 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
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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 The district court properly calculated Jacobs’
Guidelines range (and Jacobs does not contend otherwise),
treated the range as advisory, and adequately explained the
selected sentence. The court specifically explained that
Jacobs’ above-Guidelines sentence was warranted by the heinous
quality of the crime, Jacobs’ extended involvement, and the
danger inherent in his promotion of dog fighting as a sport. In
addition, the court considered that no points were added for
Jacobs’ prior convictions, including assault with a deadly
weapon. In so doing, the court explicitly addressed Jacobs’
arguments concerning his age and selected a sentence
substantially shorter than the sentence advocated by the
Government. While the court did not specifically 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. Because the court
1
The advisory Guidelines range was eight to fourteen
months.
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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 the circumstances,
including the extent of the departure. Though Jacobs’ sentence
more than doubles the high-end of his Guidelines range, the
district court did not abuse its discretion in determining that
such a deviation was justified by the § 3553(a) factors,
including Jacobs’ criminal history, the need to protect the
public, and the need to provide adequate deterrence. Thus, we
conclude that Jacobs’ twenty-nine-month sentence is reasonable.
Accordingly, we affirm the district court’s judgment.
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
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