Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-23-2008
USA v. Jacobs
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3135
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"USA v. Jacobs" (2008). 2008 Decisions. Paper 505.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 06-3135
___________
UNITED STATES OF AMERICA
v.
MARK JACOBS,
Appellant.
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 00-cr-00313-03)
District Judge: Honorable J. Curtis Joyner
___________
Submitted Under Third Circuit L.A.R. 34.1(a),
September 11, 2008
Before: SLOVITER, FUENTES, and ALDISERT, Circuit Judges.
(Opinion Filed: September 23, 2008)
OPINION OF THE COURT
FUENTES, Circuit Judge:
Mark Jacobs appeals the reimposition of his original 404 month sentence after his
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case was remanded by the Supreme Court for resentencing in light of United States v.
Booker, 543 U.S. 220 (2005). He asserts that the District Court unreasonably trivialized
evidence of his post-conviction rehabilitation and failed to consider its ramifications for
his risk of recidivism under 18 U.S.C. § 3553(a). He also charges that the sentence was
substantively unreasonable. Because we find these arguments to be without merit, we will
affirm.
In January 2000, Jacobs entered open guilty pleas to fourteen counts relating to his
extensive participation in a conspiracy to distribute cocaine and cocaine base, including a
charge of possession of a firearm in furtherance of a drug trafficking crime. He had no
previous convictions. On August 29, 2001, he was sentenced to 344 months’
imprisonment for the drug trafficking offenses and a consecutive 60 months’
imprisonment for the firearms offense. The total sentence of 404 months was within the
relevant Sentencing Guidelines range of 324 to 405 months. Jacobs’s sentence was
affirmed on appeal, but the case was remanded by the Supreme Court for resentencing
under Booker.
At the resentencing hearing, Jacobs primarily presented evidence of his post-
conviction rehabilitation, including his progress in paying the fines assessed as part of his
sentence, his lack of disciplinary infractions in prison, his reportedly good behavior
overall, his successful pursuit of a G.E.D., and his diligent work with the heating,
ventilation, and air conditioning detail at the prison to develop marketable job skills .
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In response to the evidence of Jacobs’ changed behavior, the District Court stated:
The difficulty in your circumstances is that it had to take prison to make
these changes in you. You had opportunities that were presented to you
outside, like to get your high school diploma, your GED, but you shut that
down while you were out in the Street. You were into making money. You
were selling crack cocaine. It was a big hustle. You were living large. . . .
Don’t get me wrong, I appreciate the efforts that you have made since
you’ve been in prison . . . . But, like I said, it’s unfortunate that you didn’t
take these opportunities when you had the freedom out there on the Street.
App. 14-16. The judge found that the original sentence of 404 months’ incarceration was
still appropriate, noting:
I considered the totality of the person who appeared before me today, but I can’t
erase the significant involvement that you had in the events that brought you here
to this Court. . . . [The previous sentence] was an appropriate sentence pursuant to
your involvement in the crimes charged, and the significant effect these crimes
have had on the community. To sentence you to a lesser sentence . . . would
depreciate the seriousness of the offense.
App. 22-23.
“The record must demonstrate the trial court gave meaningful consideration to the
§ 3553(a) factors,” United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). Those
factors include the “nature and circumstances of the offense and the history and
characteristics of the defendant,” as well as the need for the sentence “to reflect the
seriousness of the offense,” “afford adequate deterrence to criminal conduct,” and
“protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a). The above
excerpts from the record make it clear that the District Court seriously considered Jacobs’
post-conviction rehabilitation within the framework of these factors and simply found it
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to be outweighed by the significance of his offense conduct.
In light of the deference given to a trial court judge’s application of the § 3553(a)
factors, especially a judge who has imposed (or re-imposed) a sentence within the
Guidelines range, this conclusion represented a substantively reasonable balancing of the
statutory factors. Cooper, 473 F.3d at 330-31. This court has expressed its view that “a
court, except in unusual cases, should consider only conduct and circumstances in
existence at the time of the original sentencing when it resentences following a Booker
remand.” United States v. Lloyd, 469 F.3d 319, 325 (3d Cir. 2006). We agree with the
District Court that Jacobs’ post-conviction rehabilitation, while commendable, was not
exceptional enough to justify a reduction in his sentence when other federal prisoners
have behaved equally well yet have not had the opportunity to seek resentencing. See
id. at 325 (“After all, an approach permitting a defendant's post-sentencing rehabilitation
efforts to impact on a resentence ‘would unfairly disadvantage defendants who were
ineligible for re-sentencing and therefore had no opportunity to bring their rehabilitative
efforts before the sentencing court.’”) (citation omitted).
As for Jacobs’ status as a first-time offender, that variable is already implictly
included in the calculation of the Sentencing Guidelines range by considering a
defendant’s criminal history category. In correctly computing the Guidelines range here,
which Jacobs has not challenged, the District Court sufficiently took account of Jacobs’
lack of a criminal history. See United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)
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(“ [A] court [need not] discuss and make findings as to each of the § 3553(a) factors if the
record makes clear the court took the factors into account in sentencing.”); cf. United
States v. Zastrow, 534 F.3d 854 (8th Cir. 2008) (finding that district court had considered
defendant’s clean criminal record because it had correctly used criminal history Category
I, for first-time offenders, in arriving at Guidelines range).
For the foregoing reasons, the judgment of sentence will be affirmed.
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