UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4593
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH DEE JACOBS, a/k/a Weezo,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior
District Judge. (3:14-cr-00667-JFA-18)
Submitted: July 28, 2016 Decided: August 1, 2016
Before MOTZ and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jessica Salvini, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. John David Rowell, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Dee Jacobs appeals his conviction and 188-month
sentence imposed following his guilty plea to conspiracy to
distribute and possess with intent to distribute a quantity of
cocaine, in violation of 21 U.S.C. § 846 (2012). On appeal,
Jacobs’ counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal but questioning whether the
Government breached the plea agreement in declining to move for
a downward departure and whether the district court imposed an
unreasonable sentence. Jacobs was notified of his right to file
a pro se supplemental brief but has not done so. The Government
has declined to file a response brief. For the reasons that
follow, we affirm.
Jacobs first asserts that the Government breached its
obligations under the plea agreement by failing to move for a
downward departure based on substantial assistance. Because
Jacobs did not raise this argument in the district court, we
review the issue for plain error. Puckett v. United States, 556
U.S. 129, 133-34 (2009); see Henderson v. United States, __ U.S.
__, 133 S. Ct. 1121, 1126-27 (2013) (describing standard). A
defendant alleging a breach has the burden to prove by a
preponderance of the evidence that the Government breached the
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plea agreement. United States v. Conner, 930 F.2d 1073, 1076
(4th Cir. 1991).
The plain language of Jacobs’ plea agreement obligated the
Government to move for a downward departure only if it deemed
Jacobs’ cooperation as substantial assistance in the
investigation or prosecution of another person. Because defense
counsel candidly admitted at sentencing that Jacobs’ cooperation
had not arisen to the level of substantial assistance, and the
record provides no basis to conclude otherwise, we find no
breach of the plea agreement.
Jacobs’ counsel also questions whether the district court
imposed an unreasonable sentence. We review Jacobs’ sentence
for reasonableness, applying “a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 46 (2007). We
first ensure that the court “committed no significant procedural
error,” such as improper calculation of the Sentencing
Guidelines, insufficient consideration of the 18 U.S.C.
§ 3553(a) (2012) factors, and inadequate explanation of the
sentence imposed. United States v. Lynn, 592 F.3d 572, 575 (4th
Cir. 2010) (internal quotation marks omitted). If we find the
sentence procedurally reasonable, we also review its substantive
reasonableness under “the totality of the circumstances.” Gall,
552 U.S. at 51. We presume that a within-Guidelines is
substantively reasonable. United States v. Louthian, 756 F.3d
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295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
Jacobs bears the burden to rebut this presumption “by showing
that the sentence is unreasonable when measured against the 18
U.S.C. § 3553(a) factors.” Id.
Our review of the record indicates that Jacobs’ sentence is
reasonable. The court properly calculated the applicable
Sentencing Guidelines range, considered the parties’ sentencing
arguments, and provided a reasoned explanation for the sentence
it imposed, expressly grounded in various § 3553(a) factors.
The court specifically considered Jacobs’ request for a downward
departure or variance but reasonably declined to sentence him
below the Guidelines range, concluding that such a reduction was
unwarranted based on the nature and circumstances of the
offense—including the substantial benefit Jacobs had received by
pleading to a lesser included offense—and in order to avoid
unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1),
(6). Further, Jacobs fails to rebut the presumption of
substantive reasonableness accorded his within-Guidelines
sentence.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Jacobs, in writing, of
the right to petition the Supreme Court of the United States for
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further review. If Jacobs requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Jacobs.
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
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