United States v. Jacobs ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4943
KENNETH DELCARRA JACOBS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Catherine C. Blake, District Judge.
(CR-01-50)
Submitted: June 16, 2003
Decided: July 22, 2003
Before LUTTIG and MICHAEL, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Gerald C. Ruter, LAW OFFICES OF GERALD C. RUTER, P.C.,
Baltimore, Maryland, for Appellant. Thomas M. DiBiagio, United
States Attorney, Sandra Wilkinson, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
2 UNITED STATES v. JACOBS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kenneth Delcarra Jacobs appeals his convictions and sentence for
conspiracy to distribute and possess with intent to distribute fifty
grams or more of cocaine base in violation of 21 U.S.C. § 846 (2000)
(count one), distribution and attempted distribution of cocaine base in
violation of 21 U.S.C. § 841 (a)(1) (2000) (counts two through nine),
possession of a firearm after a felony conviction in violation of 18
U.S.C. § 922(g)(1) (2000) (count ten), and possession of ammunition
after a felony conviction in violation of § 922(g)(1) (count eleven).
The district court sentenced him to a total imprisonment term of 420
months, to be followed by a total supervised release term of five
years. Finding no reversible error, we affirm.
Jacobs contends that the evidence at trial was insufficient to find
him guilty of possession of a firearm after a felony conviction. We
must uphold Jacobs’ conviction on appeal if there is substantial evi-
dence in the record to support it. See Glasser v. United States, 315
U.S. 60, 80 (1942). In determining whether the evidence in the record
is substantial, we view the evidence in the light most favorable to the
government and inquire whether there is evidence "that a reasonable
finder of fact could accept as adequate and sufficient to support a con-
clusion of a defendant’s guilt beyond a reasonable doubt." United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). To con-
vict Jacobs of possession of a firearm after a felony conviction, the
Government had to prove that: "(1) [Jacobs] previously had been con-
victed of a crime punishable by a term of imprisonment exceeding
one year; (2) [he] knowingly possessed . . . the firearm; and (3) the
possession was in or affecting commerce, because the firearm had
travelled in interstate . . . commerce at some point during its exis-
tence." United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en
banc).
UNITED STATES v. JACOBS 3
Jacobs stipulated that he had been convicted of a felony and had
not had his right to own or possess a firearm restored. Furthermore,
Jacobs does not contest on appeal that he knowingly possessed the
firearm. Thus, the only issue is whether the firearm had traveled in
or affected interstate commerce. We have reviewed the record and
conclude that there was sufficient evidence from which the jury could
find that the 9mm handgun recovered by police had traveled in or
affected interstate commerce. Although the handgun originally had
been purchased from a gun manufacturer in Maryland, there was testi-
mony at Jacobs’ trial that the gun was later shipped out of Maryland
by the Worcester County Sheriff’s Department.
Jacobs next contends that the district court erred by denying his
motion to sever his trial from that of his co-defendants because there
were irreconcilable defenses at the trial. We conclude that Jacobs
waived his objection to a joint trial because he failed to file a motion
to sever prior to trial, see Fed. R. Crim. P. 12(b)(3)(D), and does not
claim on appeal that he had insufficient information to make a sever-
ance motion prior to trial. See Fed. R. Crim. P. 12(e); United States
v. Ferguson, 778 F.2d 1017, 1019-20 (4th Cir. 1985).
Jacobs further contends that the district court erred in denying his
request for a downward adjustment for acceptance of responsibility
pursuant to U.S. Sentencing Guidelines Manual § 3E1.1 (2001). A
district court’s determination as to the defendant’s acceptance of
responsibility is a factual question reviewed for clear error. United
States v. Ruhe, 191 F.3d 376, 388 (4th Cir. 1999). The burden is on
the defendant to establish by a preponderance of the evidence that he
is entitled to the adjustment. United States v. Urrego-Linares, 879
F.2d 1234, 1238-39 (4th Cir. 1989). An adjustment generally is not
available to a defendant who pleads not guilty and proceeds to a con-
tested trial. The adjustment may be applicable, however, to a defen-
dant who pleads not guilty and "goes to trial to assert and preserve
issues that do not relate to factual guilt (e.g., to make a constitutional
challenge to a statute or a challenge to the applicability of a statute
to his conduct)." USSG § 3E1.1, comment. (n.2).
Despite Jacobs’ contention that he was entitled to an adjustment for
acceptance of responsibility because he gave a complete account of
his involvement in the drug conspiracy to police, we find that the dis-
4 UNITED STATES v. JACOBS
trict court correctly denied Jacobs’ request for an adjustment for
acceptance of responsibility. Although Jacobs admitted his involve-
ment in the drug conspiracy, he denied throughout his entire trial that
he was involved in more than fifty grams of cocaine base and, thus,
acted in a manner inconsistent with acceptance of responsibility. See
USSG § 3E1.1, comment. (n.1).
Finally, Jacobs contends that the district court’s determination of
the drug quantities attributable to him as relevant conduct was clearly
erroneous. The district court’s determination of the drug quantity
attributable to a defendant is a factual finding reviewed for clear error.
United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). In deter-
mining drug quantity, a district court must consider whether the gov-
ernment has established drug quantity by a preponderance of the
evidence. United States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996).
Under USSG § 1B1.3(a)(2), drug quantities not specified in the count
of conviction are considered as relevant conduct for sentencing when
they are part of the same course of conduct or common plan or
scheme. In calculating drug amounts, the court may consider any rele-
vant information, provided that the information has sufficient indicia
of reliability to support its probable accuracy. United States v.
Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992). Because the drug con-
spiracy lasted approximately three years, and Jacobs stated to police
that he purchased for resale 3.5 grams of cocaine base every other
day, we conclude that the district court did not err in its determination
that Jacobs was involved in more than 150 grams of cocaine base. See
Cook, 76 F.3d at 604.
Accordingly, we affirm Jacobs’ convictions and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED