[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-11180 AUGUST 23, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00023-CR-CB-S
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARREL JACOBS,
a.k.a. Big D,
a.k.a. DJ Big D,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 23, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before ANDERSON, CARNES and WILSON, Circuit Judges.
PER CURIAM:
This case is before the Court for consideration in light of United States v.
Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). We previously affirmed Darrel
Jacobs’s sentence in United States v. Jacobs, No. 04-11180 (11th Cir. December
27, 2004). In that opinion, we affirmed the district court’s denial of safety-valve
relief and found no error regarding his Blakely v. Washington, 542 U.S. 296, 124 S.
Ct. 2531 (2004), now Booker, claim as a result of United States v. Reese, 382 F.3d
1308, 1312 (11th Cir., 2004), vacated, 397 F.3d 1337 (11th Cir. 2005). On May 2,
2005, the Supreme Court vacated our prior decision and remanded the case to us
for further consideration in light of its decision in Booker.
Jacobs was indicted on January 30, 2003, pled guilty pursuant to a plea
agreement on May 22, 2003, and was sentenced on February 17, 2004 – all prior to
the Supreme Court’s issuance of Blakely and Booker. At no point during or prior
to the sentencing hearing did Jacobs raise a constitutional challenge to his sentence
or assert any error based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348
(2000), or its progeny.
Since Jacobs did not preserve Booker error in district court, we review for
plain error. United States v. Shelton, 400 F.3d 1325, 1328-29 (11th Cir. 2005);
United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005). We may not
correct an error that the defendant failed to raise in the district court unless there is
(1) error (2) that is plain and (3) that affects substantial rights and (4) seriously
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affects the fairness, integrity, or public reputation of judicial proceedings.
Rodriguez, 398 F.3d at 1297.
Based on the Supreme Court’s holding, we have stated that there could be
two Booker errors: (1) Sixth Amendment error – the error of imposing a sentencing
enhancement under a mandatory guidelines regime based on judicial findings that
go beyond the facts admitted by the defendant or found by the jury; and (2)
statutory error – the error of being sentenced under a mandatory guidelines system.
See Shelton, 400 F.3d at 1330-31.
There was no Sixth Amendment error in this case because Jacobs admitted
in his factual résumé, which was incorporated by reference into his plea agreement,
that he was responsible for 1,000 pounds of marijuana. See United States v.
Cartwright, 413 F.3d 1295, 1300 (11th Cir. 2005); Plea Agreement, Att. Factual
Résumé, p. 6-7 (“The parties agree that Jacobs is accountable for 1,000 pounds of
the total amount of marijuana distributed in the conspiracy.”). On appeal, Jacobs
attempts to mutate the language in his plea agreement and his subsequent “Position
of Parties” as not admitting this fact. Nevertheless, having reviewed these
documents, it is clear that Jacobs admitted his responsibility for 1,000 pounds of
marijuana, but reserved the right to contest his involvement in any quantity of
cocaine or crack cocaine. See Plea Agreement, Att. Factual Résumé, p. 7 (“Jacobs
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disputes that he was involved with cocaine or crack cocaine. Jacobs has agreed to
allow the Court to determine the disputed drugs for which he is accountable and
the relevant amounts of each such substance at the sentencing hearing.”).1 Since
Jacobs admitted his responsibility for 1,000 pounds of marijuana, the district
court’s sentencing enhancement based on the 1,000 pounds of marijuana admission
was not Sixth Amendment Booker error.
Regarding statutory error, the first two prongs of the plain error analysis are
easily met – a sentence under the mandatory guidelines regime is error that was
plain because it is sufficient for the error to be plain at the time of appellate
consideration. See Cartwright, 413 F.3d at 1300. The standard for the third prong
is “whether there is a reasonable probability of a different result if the guidelines
had been applied in an advisory instead of binding fashion by the sentencing judge
in the case.” Rodriguez, 398 F.3d at 1301. Here, the district court sentenced
Jacobs to the lowest possible term of incarceration given his admission that he was
responsible for 1,000 pounds of marijuana. Even though the mandatory guidelines
recommended a sentencing range of 57 to 71 months, the relevant statutory penalty
provision mandated a minimum sentence of 60 months. See 21 U.S.C. §
1
Jacobs’s sentence did not include any enhancements based on responsibility for cocaine
or crack cocaine because the district court found that the government failed to establish that
Jacobs was responsible for any amount of cocaine or crack cocaine.
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841(b)(1)(B)(vii). Thus, since the district court may not sentence Jacobs below the
mandatory minimum statutory sentence, Jacobs cannot meet his burden of proving
that there is a reasonable probability of a different result under an advisory
guidelines regime.
Accordingly, having now considered Jacobs’s sentence in light of Booker,
we again affirm Jacobs’s sentence. Additionally, we reinstate our previous opinion
to the extent that it affirmed the district court’s denial of safety-valve relief.
OPINION REINSTATED IN PART; SENTENCE AFFIRMED.
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