Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-7-2004

USA v. Jacobs
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3410




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"USA v. Jacobs" (2004). 2004 Decisions. Paper 861.
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                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 01-3410




                UNITED STATES OF AMERICA

                                 v.

                         MARK JACOBS
                              a/k/a
                          Skinny Mark

                               Mark Jacobs,

                                      Appellant




ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
           EASTERN DISTRICT OF PENNSYLVANIA

                   (Dist. Court No. 00-CR-313-03)
          District Court Judge: Honorable J. Curtis Joyner


                      Argued March 29, 2004

      Before: ALITO, FISHER, and ALDISERT, Circuit Judges.

                  (Opinion Filed: April 7, 2004)

                                            ROBERT J. LEVANT (Argued)
                                            Levant, Martin & Levin
                                            1617 John F. Kennedy Boulevard
                                                       Suite 1740
                                                       Philadelphia, PA 19103

                                                       Counsel for Appellant

                                                       KATHY A. STARK (Argued)
                                                       Suite 1250
                                                       Office of the United States
                                                       Attorney
                                                       615 Chestnut Street
                                                       Philadelphia, PA 19106

                                                       Counsel for Appellee




                              OPINION OF THE COURT


PER CURIAM:

      As we write only for the parties involved, we will not restate the evidence below.

We find Jacobs’s claims to be without merit and affirm the District Court’s judgment and

sentence.

      First, as the District Court imposed a sentence (28.5 years) that was below

Jacobs’s admitted original statutory maximum (40 years), Jacobs was not entitled to a jury

trial to determine the amount of cocaine involved in his crimes. See United States v.

Williams, 

, 863 (3d Cir. 2000)(“[T]hough the District Court’s finding

regarding the amount of drugs substantially increased the possible statutory maximum

sentence under 21 U.S.C. § 841(b)(1), we hold that Apprendi is not applicable to

Williams’ sentence, because the sentence actually imposed (seven years and one month)

                                            2
was well under the original statutory maximum of 20 years.”)

       Second, the District Court was not clearly erroneous in finding that Jacobs was

responsible for the distribution of at least 1.5 kilograms of crack cocaine. See United

States v. Gibbs, 

, 197 (3d Cir. 1999) cert. denied, 

(2000). The

evidence showed that Jacobs was a key player in a conspiracy that moved over 88 kilos of

crack cocaine. Jacobs was observed in the conspiracy over the course of several months,

and government witnesses testified to the extent of his involvement, which included

supervising his two younger brothers, who also worked as dealers. Furthermore, the

police found extensive drugs and drug paraphernalia in his home. The only evidence

submitted by Jacobs was his own denial.

       Third, we reject Jacobs’s claim that the District Court abused its discretion when it

denied him the right to compel the government to produce a specific witness at the

sentencing hearing. Simply put, nothing in the record shows that Jacobs was prohibited

from calling the witness to the stand via subpoena. Furthermore, the fact that the witness

had already been cross-examined by five defense attorneys in a related conspiracy case,

together with the significant evidence of Jacobs’s role in the conspiracy, leads us to

conclude that, even if the District Court erred, there was no prejudice. See, e.g., United

States v. Nappi, 

, 770-771 (3d Cir. 2001)(“In the circumstances, [defendant]

has failed to show us anything that would even justify an inference, let alone prove, that

the District Court’s sentence was bound to be different if [he] had been afforded a copy of



                                             3
the state PSI in advance of the hearing and had been given an opportunity to comment on

it”); United States v. Sciarrino, 

,97 (3d Cir. 1989); United States v. Romano,

, 729 (2d Cir.1987).

      For the above reasons, we affirm.