United States v. Darrel Jacobs , 145 F. App'x 656 ( 2005 )


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  •                                                               [DO NOT PUBLISH]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
    2
    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
    3
    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.
    4
    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.
    5
    

Document Info

Docket Number: 04-11180; D.C. Docket 03-00023-CR-CB-S

Citation Numbers: 145 F. App'x 656

Judges: Anderson, Carnes, Per Curiam, Wilson

Filed Date: 8/23/2005

Precedential Status: Non-Precedential

Modified Date: 11/5/2024