United States of America v. Donte Jacobs

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 20-1200
___________
UNITED STATES OF AMERICA
v.
DONTE JACOBS,
Appellant
________________________
On Appeal from the United States District Court
for the District of Delaware
(District Court No. 1:19-cr-00094-001)
District Judge: Honorable Richard G. Andrews
Argued on March 11, 2021
Before: SMITH*, Chief Judge, McKEE, AMBRO, Circuit
Judges
(Opinion filed: December 16, 2021)
* Judge Smith was Chief Judge at the time this appeal was
argued. Judge Smith completed his term as Chief Judge and
assumed senior status on December 4, 2021.

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Whitney C. Cloud [Argued]
Jesse S. Wenger
Christopher de Barrena-Sarobe
Office of United States Attorney
1313 North Market Street
Hercules Building, Suite 400
Wilmington, DE 19801
Attorneys for Appellee
Peter Goldberger [Argued]
50 Rittenhouse Place
Ardmore, PA 19003
Attorneys for Appellant
__________
OPINION
__________
AMBRO, Circuit Judge.
Jurors have a marked edge when weighing trial
evidence. They view it firsthand and can assess the credibility
of the witness testimony based on their own observations.
Appeals courts, on the other hand, are limited to reviewing a
cold record, sometimes years after the trial took place. So
when challenges to the sufficiency of the evidence come to us
on appeal, we are careful not to usurp the jury’s role by acting
as independent factfinders. Instead, we review its verdict for
“bare rationality,” asking only whether any reasonable juror
could find the defendant guilty beyond a reasonable doubt.

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Donte Jacobs asks us to hold the jury’s guilty verdicts
against him—for distributing and conspiring to distribute the
fentanyl and heroin that caused Therisa Ally’s overdose
death—fell below that threshold level of rationality. Now on
appeal, he tries to establish reasonable doubt by pointing to
gaps in the Government’s evidence and offering alternative
explanations for Ally’s death.
We are unconvinced. Though the Government did not
prove Jacobs’ crimes with 100% certainty, it was not required
to do so. A rational juror could have decided Jacobs was guilty
beyond a reasonable doubt after drawing inferences from the
evidence and testimony presented at trial. We will not second-
guess that decision.
The District Court also did not err in its jury instructions
or in denying the defense’s challenges under Batson v.
Kentucky, 476 U.S. 79 (1986). It did, though, incorrectly
impose a “general sentence” for Jacobs’ three convictions
rather than impose an individual sentence for each offense. We
thus vacate his sentence and remand to the District Court to
clarify a specific sentence for each offense.
I. FACTUAL AND PROCEDURAL
HISTORY
The last thing Jeffrey Kane remembers before falling
asleep in the early hours of June 29, 2016, was his girlfriend,
Therisa Ally, sitting cross-legged on the floor by their bed. He
heard wax bags being shaken and saw her arms moving like
they did when she was preparing her heroin. They had fought
earlier that night about her heroin addiction and weren’t
speaking to each other. He got up from the bed, took an
Ambien, and fell asleep.

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When he awoke the next morning, Ally was still sitting
cross-legged on the floor next to their bed. She was slumped
over. He felt her, and then shook her a bit, but she was stiff
and cold to the touch. He quickly called 911 and tried to lay
her down to perform CPR, but he couldn’t maneuver her body
into the correct position. When the emergency workers
arrived, they found Ally lying on her side at the foot of her bed
with a tourniquet wrapped around her right arm. There was no
pulse.
After they determined Ally could not be resuscitated,
police officers cleared the room and began collecting evidence.
Sticking out from the bed, just above Ally’s knees, the officers
spotted a purple clutch purse. In it they found four bundles of
what appeared to be heroin, divided into smaller wax bags
bearing an ink stamp butterfly image and the word “Butter.”
One of the wax packages was later tested at a lab and found to
contain a mixture of heroin and fentanyl.
On the floor of the bedroom, the officers found another
purse. This red-patterned shoulder bag, described by one
officer as “basically a to-go bag for drug users,” contained a
“bunch of syringes” and nine empty wax packets that were
stamped with a skull wearing a Viking helmet. Appx. at 476.
No other “Viking bags” were found in the room.1
The police also discovered a small round coin purse in
the bedroom, holding nine full bags of drugs packaged in wax
packets bearing a stamp of a bulldog wearing a top hat. The
lab tested just one of these bags and determined it contained
1 One of the investigating officers testified at trial that the
police did not request lab testing for the residue in the Viking
bags because there was “nothing in them.” Appx. at 497.

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only heroin. There were no empty “Bulldog bags” in the
bedroom.
Other drug paraphernalia lay strewn about the room.
Two empty Butter bags were torn open on the floor; another 54
empty Butter bags were in the trash can. Near Ally’s feet was
a used syringe, blue bottle top, and a packet of cigarettes, with
one cigarette pulled out and the filter partially removed.2 A
syringe loaded with a brown substance sat on a shelf in the
bedroom.
The day after Ally’s death, Kane agreed to cooperate
with agents and to conduct a controlled purchase of drugs from
Jonathan Collins. Collins had been Ally’s dealer for about two
and a half years, and she had bought five bundles of heroin
from him nearly every day.3 In fact, Ally had bought heroin
from him—the Butter brand—the evening of her death. At the
meeting, Collins handed Kane five bundles of Butter-stamped
heroin. Kane asked Collins if it was “that same stuff” from the
night Ally overdosed, and Collins (not knowing Ally had
passed away) confirmed it was. Appx. at 549, 694. With that,
the officers stepped in, seized the heroin bundle, and arrested
Collins. A Drug Enforcement Agency laboratory tested
samples from those Butter bags and determined that, like the
Butter bag tested from Ally’s room, they contained fentanyl
and heroin. Yet unlike the samples taken from the bedroom,
2 Detective Cowdright explained that an addict prepares an
injection of heroin by mixing water and heroin powder in a
bottle top, soaking up the liquid with a cigarette filter, and
loading a syringe through the filter so that any chunks are
removed.
3 Collins estimated that Ally had not bought heroin from him
10 to 20 days in the two and a half years he had been her dealer.

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the lab performed a quantitative analysis on these drugs and
concluded that fentanyl was “the most substantial portion of
the substance within that mixture.”4 Id. at 587.
Collins agreed to cooperate with the police and
explained that he had obtained the Butter-stamped heroin from
Donte Jacobs. The latter had approached Collins about dealing
his heroin at the end of February or beginning of March 2016.
By mid-March, Jacobs became Collins’ only heroin supplier
after Collins received positive “customer feedback” on Jacobs’
heroin. Under their arrangement, Jacobs gave pre-packaged
bags to Collins, who then sold them to users like Ally.
According to Collins, Jacobs knew that he was selling heroin
in Delaware, and Collins even gave him “customer feedback”
from time to time.
Jacobs was eventually arrested for distributing the drugs
that killed Ally, and he opted to go to trial. During jury
selection, the Government used its peremptory strikes to strike
all but one minority juror. Jacobs, an African-American, raised
a Batson challenge, asserting that the Government was striking
jurors for racially discriminatory reasons. When questioned by
the District Court, the prosecutor explained that he struck Juror
9, also African-American, because he “was asleep during most
of the Court’s initial questioning” and had pink and bleached
hair, which “goes with sort of a counter culture.” Id. at 369.
And Juror 26, who is Latino, was struck also, as “he had issues
with the criminal justice system because of statistics and
4 Drug dealers mix heroin with substances such as fentanyl to
“make more product.” Appx. at 776. When they do, it is “not
an exact science.” Id. at 778. So “[s]ome bags may not contain
any fentanyl, [and] some may contain a . . . higher
concentration of fentanyl.” Id.

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studies that he read.” Id. at 372. The prosecutor worried that
Juror 26 “may implicitly hold the government to a higher
burden, particularly with defendants that are minority
defendants.” Id. He also mentioned that Juror 26 seemed
“involved in statistics” and might try to apply the beyond-a-
reasonable-doubt standard to a mathematical certainty. Id. at
373.5 After explaining that he believed the prosecutor’s
reasons, the District Court Judge rejected the Batson challenge
and proceeded to trial.
At trial, Kane, Collins, and the various police officers
involved in the investigation testified. A forensic pathologist,
Dr. Daniel Brown, also testified and explained that, based on
his autopsy of Ally, she died of a drug overdose—specifically,
“acute multiple drug intoxication.” Id. at 788, 800. A forensic
toxicologist, he said, would have to “determine which drugs
caused the most damage.” Id. at 800. The forensic
toxicologist, Dr. Michael Coyer, then testified that most drugs
in Ally’s system were at or on “the low side” of therapeutic
levels. Id. at 823. But the fentanyl dosage in her blood stream
was “ten times higher than what would be the reported
therapeutic range.” Id. at 824. It was, in fact, a “lethal level of
fentanyl.” Id. “[B]ut for the use of that substance that
contained fentanyl,” Coyer explained, Ally “would not have
died.” Id. at 826.
Coyer also noted that the postmortem performed on
Ally established that her blood was “consistent with someone
who died from a substance contained in the Butter bag” the lab
had tested. Id. at 825. He recognized, though, that this
conclusion rested on the lab’s determination that the Butter
5 The Government also used its peremptory strikes on other
minority jurors, but Jacobs does not challenge those on appeal.

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bag—like Ally’s blood sample—contained heroin and
fentanyl. He did not know the concentrations of heroin or
fentanyl in the tested bag because the lab only performed a
qualitative analysis. His analysis also did not address the
possibility that the Viking or Bulldog bags caused Ally’s death,
as no Viking bags were tested and the sample Bulldog bag only
contained heroin.
The jury ultimately convicted Jacobs of two counts:
(1) conspiracy to distribute and/or possess with the intent to
distribute fentanyl and heroin resulting in death (Count 1); and
(2) distribution of fentanyl and heroin resulting in death (Count
2).6 The District Court sentenced Jacobs to 288 months’
imprisonment and five years of supervised release, but it did
not specify a sentence on each count. This appeal followed.7
II. ANALYSIS
Jacobs’ conspiracy and distribution offenses contain a
two-part penalty structure. If he were found guilty just of
distributing or conspiring to distribute heroin and fentanyl, he
could be sentenced to no more than 20 years in prison. 21
U.S.C. §§ 841(a)(1), (b)(1)(C), 846. But Congress enhanced
the penalty for distribution where “death or serious bodily
injury results from the use of such substance”: a 20-year
mandatory minimum, with a maximum life sentence. Id.
§ 841(b)(1)(C). Because the jury found Jacobs guilty on all
charges and that Ally’s death “resulted from the use of
6 Jacobs did plead guilty to one count of being a felon in
possession of a firearm. 18 U.S.C. §§ 922(g)(1), 924(a)(2).
7 The District Court had subject matter jurisdiction under 18
U.S.C. § 3231. Appellate jurisdiction rests on 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a)(1).

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fentanyl” he distributed and conspired to distribute, he faced a
mandatory minimum of 20 years in prison.
Jacobs now raises four arguments on appeal. First, the
evidence could not support the death-resulting convictions
beyond a reasonable doubt. Second, the jury instruction
explaining § 841(b)’s “results in” language should have
charged the jury to find proximate, not just actual, cause.
Third, the Government’s peremptory strikes of Jurors 9 and 26
violated Batson’s bar on the discriminatory exclusion of
minority jurors. And finally, the Court’s imposition of a
“general sentence” on the three counts, rather than an
individual sentence on each count, requires resentencing. We
address each argument in turn.
A. Sufficiency of the Evidence
We begin with Jacobs’ assertion that the Government
presented insufficient evidence to show his distribution
activities resulted in Ally’s death. Jacobs contends there were
alternative explanations for Ally’s overdose and the
Government did not prove beyond a reasonable doubt the
fentanyl that killed Ally came from the Butter bags he sold.
After all, he says, no one saw which bag Ally used when she
overdosed. And the Government only tested samples from one
Butter bag and one Bulldog bag, and never even sent the
Viking bags to the lab. No evidence ever tied Jacobs to the
Bulldog and Viking bags; so, if Ally overdosed using one of
those, her death could not be traced back to him.
We are unconvinced. Jurors, not judges, are the
factfinders in criminal cases, and part of a juror’s role is to
draw reasonable inferences from the evidence presented at
trial. See Coleman v. Johnson, 566 U.S. 650, 655 (2012). Our
review of the sufficiency of the evidence is thus highly

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deferential to the jury’s verdict. We look at the record in the
light most favorable to the prosecution and ask only whether
any “reasonable juror could accept the evidence as sufficient
to support the conclusion of the defendant’s guilt beyond a
reasonable doubt.” United States v. Caraballo-Rodriguez, 726
F.3d 418, 430–31 (3d Cir. 2013) (en banc) (quoting United
States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987)). And we
uphold the verdict as long as it does not “fall below the
threshold of bare rationality.” Id. at 431 (quoting Coleman,
566 U.S. at 656).
What’s more, because Jacobs failed to challenge the
sufficiency of the evidence before the District Court, we
review only for plain error. He must now show that (1) there
was an error, (2) it was plain (i.e., clear under current law), and
(3) it affected his substantial rights. United States v. Fattah,
914 F.3d 112, 172 (3d Cir. 2019). Even then, we will only
address the error if we conclude that (4) it “seriously affected
the fairness, integrity, or public reputation of the judicial
proceeding.” Id.
It is not settled how much more deferential plain-error
review of the sufficiency of the evidence can be, but, even
under our normal review, this jury’s verdict would pass
scrutiny. The Government’s evidence sufficiently established
the following. Jacobs supplied the Butter bags that Ally bought
the night of her death and were later found near her body.
Appx. at 549–50 (Kane’s testimony that the heroin Collins
gave him in a controlled purchase was the “same thing that
[Ally] had gotten”); id. at 615 (Collins’ testimony that Jacobs
was his only supplier before Ally’s death); id. at 627 (Collins’
testimony that he had given Ally Butter-stamped heroin on
June 28, 2016, and had given Kane the same Butter-stamped
heroin on June 30, 2016). Second, testing revealed that one of

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the Butter bags near Ally’s body, and several of the Butter bags
later bought in a controlled purchase from Collins, contained
fentanyl. Third, Ally would not have died had she not injected
fentanyl.
Finally, there was enough evidence for a jury to
conclude that the Butter bags, and not the Viking and Bulldog
bags, were the source of the lethal drugs Ally ingested before
her death. The Bulldog bags were full, no empty Bulldog bags
were found in the bedroom, and one of the full bags selected
for testing contained only heroin and no fentanyl. Appx. at
482, 485–86. The empty Viking bags were in a closed shoulder
bag—to repeat, often a “to-go bag for drug users”—which
supports the inference that Ally ingested the substance of those
bags well before her death. Id. at 476. Further, dozens of
empty Butter bags were found in the trash can and on the floor
near Ally’s body, but the Bulldog and Viking bags were found
only inside a coin purse and shoulder bag, respectively. To
credit Jacobs’ suggestion that the lethal fentanyl came from the
Viking or Bulldog bags, the jury would have to believe Ally
placed them inside a bag or purse before overdosing despite
evidence that she died suddenly with a tourniquet still on her
arm. The jury rejected Jacobs’ explanation, which was
discussed during defense counsel’s cross-examination and
closing arguments.
Together, this evidence is enough for a rational juror to
conclude beyond a reasonable doubt that the Butter bags
supplied by Jacobs were the source of the lethal fentanyl Ally
ingested. Quantitative testing of a greater number of the bags
found at the scene no doubt was preferable, but we will not
disturb the jury’s decision when the other evidence is more
than enough to meet the low bar for affirming Jacobs’
convictions. Indeed, “[r]eversing the jury’s conclusion simply

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because another inference is possible—or even equally
plausible—is inconsistent with the proper inquiry for review of
sufficiency of the evidence challenges.” Caraballo-Rodriguez,
726 F.3d at 432.
B. The Jury Instruction
Jacobs also insists that even if there were sufficient
evidence to support his convictions, the District Court erred by
failing to instruct the jury that “proximate cause,” on top of
“but-for cause,” is required to prove that “death resulted” from
drug distribution under § 841(b). In other words, the District
Court told the jury guilt exists no matter how far down the
chain of causation Jacobs became involved (in legalese, actual
cause or but-for causation), but it should have instructed that
they could find him guilty only if Ally’s death was a
“foreseeable result” of his heroin distribution (that is,
proximate cause).8 Though we normally exercise plenary
8 But-for causation means that a result can be traced back to a
triggering action—no matter how far down the chain of
causation you have to go. So if Jacobs sold fentanyl to Collins
and Collins sold fentanyl to Ally and Ally overdosed on
fentanyl, all that matters is that if Jacobs hadn’t sold Collins
the fentanyl, Ally wouldn’t have overdosed.
In contrast, proximate causation cuts the causal chain at
foreseeability. Let’s say Jacobs sold a non-lethal amount of
fentanyl to Collins, who sold to a user who combined it with
other fentanyl (making the dosage fatal) and then overdosed. If
we applied proximate causation, then even though the user
would not have died without Jacobs selling the non-lethal dose
of fentanyl, Jacobs would not be responsible unless he could
have foreseen how the user would combine fentanyl doses.

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review to determine whether a jury instruction misstated the
law, see United States v. Piekarsky, 687 F.3d 134, 142 (3d Cir.
2012), Jacobs admits that this argument is subject only to plain-
error review because he failed to raise it at trial. Our precedent
forecloses Jacobs’ proximate cause argument, so he has not
shown error, much less plain error.
Jacobs would face a 20-year mandatory minimum if
Ally’s death “result[ed] from the use” of the fentanyl that he
distributed. See 21 U.S.C. § 841(b)(1)(C). Though the statute
does not define whether “results from” means proximate or
actual causation, our Court answered this question in United
States v. Robinson, 167 F.3d 824 (3d Cir. 1999). The plain
language of § 841(b)(1)(C) “neither requires nor indicates that
a district court must find that death resulting from the use of a
drug distributed by a defendant was a reasonably foreseeable
event.” Id. at 830 (citing United States v. Patterson, 38 F.3d
139, 145 (4th Cir. 1994)). Instead, the provision puts drug
dealers on “clear notice that their sentences will be enhanced if
people die from using the drugs they distribute.” Id. (quoting
Patterson, 38 F.3d at 145). Because Congress recognized that
“risk is inherent in the [drug] product,” it intended to enhance
a defendant’s sentence whenever death resulted from the
distribution of certain drugs, regardless of whether that
defendant could have reasonably foreseen that death would
result. Id. at 831.
Jacobs maintains that the Supreme Court effectively
overruled Robinson in Burrage v. United States, 571 U.S. 204
(2014), and Paroline v. United States, 572 U.S. 434 (2014).
But we do not read those cases so broadly. In Burrage—
another case involving the “death results” element of § 841—
the trial court refused to give either a but-for cause instruction
or a proximate cause instruction. When reviewing that

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decision, the Supreme Court observed that “a defendant
generally may not be convicted unless his conduct is both
(1) the actual cause, and (2) the ‘legal’ cause (often called the
‘proximate cause’) of the result.” Burrage, 571 U.S. at 210
(emphasis added) (internal quotation marks omitted). The
Court, though, never reached whether § 841 contains a
proximate cause requirement because it reversed the
defendant’s conviction based on the trial court’s failure to give
a but-for cause instruction. Id. at 210, 219.
Jacobs’ appeal to Paroline fares no better. There the
Supreme Court considered a child pornography statute that,
unlike § 841, included an express proximate cause
requirement. Paroline, 572 U.S. at 446. Although Paroline
generally observed that the “concept of proximate causation is
applicable in both criminal and tort law,” id. at 444, it did not
import a proximate cause requirement into § 841 or discuss
that statute at all.
Neither Burrage’s nor Paroline’s general
pronouncements about proximate cause in criminal statutes are
enough to overrule our precedent. So we continue to follow
Robinson until reconsidered by our Court en banc or
undermined by the Supreme Court. See Karns v. Shanahan,
879 F.3d 504, 514 (3d Cir. 2018); 3d Cir. I.O.P. 9.1.
Further, even if Burrage, Paroline, or any of the other
cases cited by Jacobs did chip away at our reasoning in
Robinson, it was not “plain error” for the District Court to rely
on it. An error is plain only if it was “clear under current law.”
Fattah, 914 F.3d at 172. As we have never explicitly overruled
our current law—Robinson—it can hardly be clear the District
Court should not have followed it. It thus did not plainly err in
offering only a but-for causation jury instruction.

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C. The Batson Challenge
Next, Jacobs argues that the District Court erred before
his trial even began when it allowed the Government to use its
peremptory strikes to remove all but one minority venire
member from the jury. Though the Government may generally
use its peremptory challenges however it likes, the Fourteenth
Amendment’s Equal Protection Clause prohibits striking jurors
based on their race. Batson, 476 U.S. at 89. Jacobs insists on
appeal that the Government did so when it struck two minority
jurors from his panel: Juror 9 and Juror 26, his focus being
more on the latter.
A trial court determines whether a peremptory strike
violates equal protection using the burden-shifting framework
established in Batson. First, the defendant must make out a
prima facie case of discriminatory intent. Id. at 93–94. If that
occurs, the Government, as a second step, must provide a race-
neutral explanation for exercising its peremptory strike. Id. at
94. At that step, the explanation need not be “persuasive, or
even plausible.” United States v. Savage, 970 F.3d 217, 266
(3d Cir. 2020) (quoting Purkett v. Elem, 514 U.S. 765, 768
(1995) (per curiam)). Instead, at the third step, the court
evaluates the persuasiveness of the prosecutor’s proffered
reasons to decide whether the Government was “motivated in
substantial part by discriminatory intent.” Flowers v.
Mississippi, 139 S. Ct. 2228, 2244 (2019) (quoting Foster v.
Chatman, 578 U.S. 488, 513 (2016)).
Our appellate review of a Batson challenge is highly
deferential to the trial court. Though we will take a fresh look
to ensure that the district court did not deviate from the Batson
analytical framework, United States v. Milan, 304 F.3d 273,
283 (3d Cir. 2002), deciding whether there was discriminatory
intent “represents a finding of fact of the sort accorded great

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deference on appeal,” Savage, 970 F.3d at 267 (quoting
Hernandez v. New York, 500 U.S. 352, 364 (1991)). This is
because finding discriminatory intent “largely will turn on [an]
evaluation of credibility.” Flowers, 139 S. Ct. at 2244 (quoting
Batson, 476 U.S. at 98 n.21).
Though the parties agree that the defense made out a
prima facie case of discrimination, satisfying Batson’s first
step, Jacobs insists that there were errors at both steps two and
three of the Batson analysis. First, he argues that the
Government’s reasons for striking Juror 26 were not race-
neutral. The prosecutor, in part, struck that juror due to his
“issues with the criminal justice system because of statistics
and studies that he read.” Appx. at 372. Jacobs claims that
because Juror 26 based his views in part on his own
experiences as a Latino person, this was not a race-neutral
reason for the strike.
We disagree. The Ninth Circuit has explained that
“[c]hallenging a prospective juror on the basis of his expressed
opinions about the judicial system does not violate Batson.”
Tolbert v. Gomez, 190 F.3d 985, 989 (9th Cir. 1999); see id.
(“Batson does not forbid striking a juror who holds a particular
opinion about the U.S. justice system. Rather, it forbids
striking jurors based on their race.” (quoting United States v.
Fike, 82 F.3d 1315, 1320 (5th Cir. 1996))). As in that case,
Jacobs did not try to make any showing before the District
Court that “concern regarding the potential of racist attitudes
of juries is ‘a characteristic that is peculiar to any race,’” id.
(quoting Purkett, 514 U.S. at 769), so striking him on that basis
was not the equivalent of striking him because of his race.
Moreover, the Government offered another race-neutral reason
for removing Juror 26 that satisfied step two: he was a

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“numbers guy” who might inadvertently hold the Government
to too high a burden.
Second, Jacobs claims that the District Court failed to
conduct a proper analysis at “step three” of Batson. He
contends that it mistakenly believed it was bound to accept the
Government’s reasons for its strikes if they were facially
neutral. But that diverges from the record. After the
Government provided its reasons, the Court allowed the
defense to respond. It then properly conducted a step-three
analysis and reached its own conclusion—based on the
evidence and its own evaluation of the prosecutor’s
credibility—that the Government lacked discriminatory intent.
The Court “accept[ed] that Number 9 ha[d] been, at a
minimum, do[z]ing on and off”—which we take to mean that
it determined the prosecutor’s account was credible, not that it
was deferring to whatever the prosecutor said. Appx. at 379.
This is reinforced by its affirmation that the Government’s
reason for striking Juror 26 “make[s] sense” because the Court
“believe[d] [the prosecutor] when he sa[id] why he did these
various things.” Id. at 378–79. The District Judge reiterated
this in his memorandum denying Jacobs’ post-trial motions,
saying, “I credited the prosecution’s race-neutral explanations”
and “evaluated the justifications.” Id. at 13.
The District Court thus properly engaged in a thorough
dialogue with counsel and scrutinized the evidence before
determining that the Government’s race-neutral reasons were
not pretextual. The Judge adequately explained why he
believed the Government’s reasons were valid and, after giving
the defense ample time to respond, told why he was not
persuaded by the defense’s arguments. Jacobs has identified
nothing clearly erroneous about those conclusions. Thus they
stand.

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D. The General Sentence
Finally, Jacobs requests a full resentencing because the
District Court imposed a “general sentence” without
explaining which parts of the sentence were attributable to the
three counts of conviction. Under the Sentencing Guidelines,
the District Court must impose a sentence for each count. See
United States v. Ward, 626 F.3d 179, 184 (3d Cir. 2010) (citing
U.S.S.G. § 5G1.2(b), (c)). The Government concedes that did
not occur here but argues we should merely remand for
clarification rather than full resentencing. We agree.
In Ward, when we determined that the Guidelines did
not allow for general sentences, we simply said that we would
“remand for resentencing.” Id. at 184–86. We didn’t explain
whether that involved a full resentencing process or just
clarification of the sentence. But we cited, id. at 185, a case
from the Eleventh Circuit that “remand[ed] . . . for clarification
of the sentence,” United States v. Moriarty, 429 F.3d 1012,
1025 (11th Cir. 2005), and one from the D.C. Circuit
instructing the district court to “specify sentences for the
individual counts” while it fixed other errors in sentencing,
United States v. Hall, 610 F.3d 727, 745 (D.C. Cir. 2010). A
few years after Ward, in United States v. Andrews, we were
more direct about what we meant by “resentencing” when we
vacated the defendant’s general sentence: “[W]e will vacate
. . . and remand for the limited purpose of allowing the District
Court to clarify the sentence imposed on each count of
conviction.” 681 F.3d 509, 532 (3d Cir. 2012). We thus follow
suit by vacating and remanding Jacobs’ sentence for
clarification.
* * *

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A jury found Therisa Ally died because Jacobs cut the
heroin he distributed to her dealer with a lethal dose of
fentanyl. It reached that conclusion based on reasonable
inferences from the evidence presented at trial. Finding no
error in the District Court or jury’s decisions, we affirm Jacobs’
convictions. But because the Court improperly imposed a
general sentence, we vacate and remand to clarify the sentence
specified for each count.

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McKee, Circuit Judge, concurring in the judgment dubitante.1
I join the Majority’s discussion of the jury-instruction
issue, the Batson issue, and the sentencing error without
reservation. I also concur in the judgment affirming the
conviction for distributing heroin causing Therisa Ally’s death.
I do so, however, with strong reservations, which compel me
to explain that my concurrence in the judgment is dubitante. I
am dubitante about the result because the government’s
attempt to prove that Jacobs provided the heroin that killed
Ally can best be described as cavalier and presumptuous.
Nevertheless, the government need not negate all possible
alternatives to Jacobs being the fatal dealer. Its burden is only
proof beyond a reasonable doubt, not beyond all doubt.2
Accordingly, given the very deferential standard governing our
review of a jury verdict, I cannot disagree with the conclusion
that the inferences here combined to clear the evidentiary
threshold necessary to establish that Jacobs sold Ally the fatal
dose of heroin. As Judge Ambro explains, the resulting
conviction satisfies the “bare rationality” threshold—though
just barely.3
I do, however, hope that if the government attempts to
convict someone for distributing a controlled substance
resulting in death in the future, it will present a more
convincing and less inferential case than it did here. In
prosecuting such a charge, the government must always
thoroughly prepare and present the evidence. I write in the
hope of advancing that end. Nevertheless, the standard of
review compels me to reluctantly agree that the conviction for
distribution causing death withstands this challenge, though
only by the narrowest of margins.
I.
1 The term “dubitante” is affixed to the name of the judge,
“indicating that the judge doubted a legal point but was
unwilling to state that it was wrong.” Dubitante, BLACK’S
LAW DICTIONARY (11th ed. 2019). See, e.g., Salvation Army
v. Dep’t of Cmty. Affs., 919 F.2d 183, 203 (3d Cir. 1990)
(Becker, J., concurring dubitante).
2 United States v. Isaac, 134 F.3d 199, 202 (3d Cir. 1998).
3 Op. at 3.

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2
A criminal conviction may surely rest upon reasonable
inferences drawn from the evidence, as long as the totality of
the evidence is sufficient to prove guilt beyond a reasonable
doubt. Affirming this conviction for distribution resulting in
death requires us to piece together several layers of inference.
The result, though surviving our deferential review, comes
perilously close to rank speculation. This could have been
avoided if the government treated that charge with the
seriousness that the enhanced penalty (indeed any criminal
conviction) merits.
A.
The government’s argument basically asks us to accept
a syllogism that appears straight-forward: Collins sold Ally
Butter heroin that he obtained from Jacobs, that heroin was
laced with fentanyl, Ally’s fentanyl measures were high
enough to cause death, and she died with Butter heroin bags
near her. Thus, argues the government, Collins is responsible
for selling Ally the heroin/fentanyl mixture that killed her, and
that is sufficient to establish Jacobs’s guilt of distributing and
conspiring to distribute the fatal dose beyond a reasonable
doubt because Collins obtained it from Jacobs. Part of the
foundation of this syllogism rests upon the evidence that the
purse with Butter bags was found “immediately to the left of
Ally’s body”4 and two empty Butter bags were “directly in
front of where Ally was sitting.”5 According to the
government’s argument, these dots are sufficient for the jury to
draw a line connecting Jacobs to Ally’s fatal injection of
fentanyl beyond a reasonable doubt when considered along
with Kane’s testimony about purchasing drugs from Jacobs.
Although, as I just noted, that line is sufficiently rigid to
withstand our deferential review, this prosecution raises
concerns that bear mentioning. I begin with the fact that there
was no medical testimony that would have established that
Ally either became immobile or died almost immediately upon
injecting the fatal dose of heroin. Such testimony would have
made any reliance on the proximity of the empty Butter bags
more probative. The jury should not have had to infer that
dying with a tourniquet meant that Ally became immobile or
4 Appellee’s Br. 3 (citing App. 486–87).
5 Id. (citing App. 492–93).

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3
died just after injecting the fatal dose of heroin.6 There is also
testimony that her body had been repeatedly moved. Thus,
attempts to erect a logical inference based upon the proximity
of Butter heroin to her lifeless body once police arrived is not
nearly as probative as the government argues. There is also no
way of knowing the extent to which those in the room disturbed
the location of the various packets and bundles of heroin that
were ultimately found near her body. Kane testified about
where Ally was sitting when he went to sleep, but he did not
testify about the location of any packets of heroin on the floor
or in the room before the police arrived the next morning.
There is more.
B.
The government’s evidence that Jacobs sold Ally the
fatal dose of heroin was inconclusive. When the DEA expert
was asked whether drug dealers mix heroin with fentanyl “in
precise quantities,” he answered:
No. I mean, it’s not an exact science. Right. So
if you have -- your cutting agent is fentanyl and
your powder here is heroin, and all you’re doing
is mixing it. Some bags may not contain any
fentanyl, some may contain a great -- higher
concentration of fentanyl. So there’s no exact
science when these guys are putting these
packages together.7
Despite the variation in the quantity of the two drugs present
in heroin mixtures sold on the street, the lab tested only one of
the more than fifty small bags of Butter heroin from the
sandwich bag that was collected for testing. More than fifty
other bags containing residue, on the floor and in the garbage
can in the bedroom, were not even collected. The government
also failed to test the “brown substance” that was in a syringe
found in Ally’s bedroom.8 Moreover, as I shall elaborate
below, the government offered nothing to allow the jury to
conclude that the samples tested were representative of the
samples found in the room. There was absolutely no
explanation offered to the jury to explain why the sampling that
6 See Op. at 4.
7 App. 778.
8 App. 513–14.

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4
was done provided a sufficient basis to extrapolate the contents
of the unsampled bags of Butter heroin, let alone establish their
contents beyond a reasonable doubt.
In United States v. McCutchen, we explained that when
a defendant challenges a “determination that is based on
extrapolation from a test sample, the district court must make
a finding that there is an adequate factual basis for the
extrapolation and that the quantity was determined in a manner
consistent with accepted standards of reliability.”9 There, we
were deciding whether weighing a small sample of drugs
seized from a defendant was sufficient to allow the court to
determine the total weight of the drugs for sentencing
purposes.10 That, of course, is a much lesser burden than the
proof required to convict a defendant of a crime. At
sentencing, the government had relied on the weight of 15 of
119 vials of crack cocaine to extrapolate the total weight of the
cocaine McCutchen possessed. However, the evidence
showed that all 15 of the tested vials contained crack cocaine,
and a chemist testified about how the vials were selected for
testing as well as the fact that the vials tested appeared the same
as the vials not tested. Here, there is no basis for the jury to
reliably determine anything about the finding they were asked
to make based upon an extrapolation, and the court did not
attempt to give the jury any such guidance.
Given that testimony, we held that “a fairly strong
inference arises that the remaining vials, which were seized in
the same location during the same act of distribution, also
contained crack cocaine.”11 In concluding that this was
sufficient to establish the weight of the drugs McCutchen
possessed by a preponderance of the evidence for purposes of
applying the Sentencing Guidelines, we relied in part on the
decision of the Court of Appeals for the Second Circuit in
United States v. Pirre.12
There, Pirre argued that the estimated weight of 15.09
kilograms was so close to the 15-kilogram sentencing
threshold that all fifteen cocaine bricks that were seized from
9 992 F.2d 22, 23 (3d Cir. 1993).
10 Id.
11 Id. at 26.
12 927 F.2d 694 (2d Cir. 1991).

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5
him should have been weighed. However, “all 15 packages
appeared to be the same size, contained the same logo, were
wrapped in the same type of electrical tape, and each appeared
to be a standard one-kilogram brick.”13 Additionally, the
chemist had tested eight of the fifteen bricks (more than half),
and each contained cocaine. As a result, the district court
found that the government had established, by a preponderance
of the evidence, that the total weight of the cocaine Pirre
possessed was 15.09 kilograms, and the Court of Appeals
affirmed.14
In contrast, here, only one sandwich bag of Butter
heroin was collected from the house. That sandwich bag
contained fifty-two smaller bags, but only one of those was
tested. Thus, only about 2% of what was collected was tested,
and what was collected was only a fraction of what was found
at the scene. There was no evidence about how the tested bag
compared with those that were not tested, nor was there
evidence that such a small sample size could support a reliable
extrapolation. Nor was there any jury instruction about how
the jury should consider the size of the sample15 or whether it
formed a sufficiently strong basis to conclude anything about
the items that were not tested.16 Moreover, as I have already
noted, the government’s own expert testified that there is
absolutely no consistency in the proportion of fentanyl mixed
in street drugs.
In addition, even ignoring the pitifully small sampling,
there is no evidence about any similarity of size or weight of
the Butter or Bulldog bags to allow one to conclude that the
contents of the seized heroin were the same as the heroin that
was not seized or tested. In fact, as I have just explained, the
jury was informed that there is no generally accepted
proportion of heroin to mixing agent. Thus, the evidence
would only allow the jury to conclude that some of the packets
that were not tested contained more fentanyl than the tested
packets, some contained less, and some may not have
13 McCutchen, 992 F.2d at 25.
14 Id.
15 However, defense counsel did not object to the lack of an
instruction that would have guided the jury’s finding about
the accuracy of any sampling.
16 See App. 851–80.

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6
contained any. No government witnesses, including Dr.
Coyer, the forensic toxicologist, provided any logic behind the
choice to sample the particular bags tested out of the ones
collected.
Yet there are still more problems with the government’s
attempt to prove Jacobs sold Ally the heroin that killed her.
The tested Butter bag was taken from a nearby purse instead of
from residue in an emptied bag on the floor or in the trashcan,
and there is no evidence that the tested sample was from the
same batch that Ally used the night of her death. Detective
Cowdright explained the full bags were collected for testing
instead of the empty ones because the empty bags had “nothing
in them but residue” and thus “[t]here was no reason to send
them.”17 However, the tested Bulldog bag had only a “residue
amount[.]”18 Nor was there any explanation of why the residue
in the empty bags could not be tested. It is also logical to
assume that the heroin that Ally used that night came from a
bag that had only residue as the other bags appeared
undisturbed.
When Kane conducted a controlled buy of Butter heroin
from Collins the day after Ally’s death, the heroin he bought
contained fentanyl. The government argues that this suggests
the fatal dose of fentanyl-laced heroin that killed Ally also
came from Jacobs via Collins. But this is just more speculation
that encounters the same problems of unexplained sampling
and imprecise mixing.
C.
These omissions are exacerbated because the laboratory
tests only provided a qualitative analysis of the actual samples,
not a quantitative one. Therefore, the government could not
even establish the actual quantity of fentanyl in the bags that
were sampled. It certainly could not establish the quantity of
fentanyl in the Viking bags, which were not tested at all, or the
eight untested Bulldog bags.
The government attempts to fill these holes by relying
upon the fact that Jacobs stipulated that the drugs were tested
using scientifically accepted methods. This argument totally
17 App. 482.
18 App. 155.

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7
misses the point. Jacobs stipulated that each of the collected
samples “was tested using scientifically accepted methods”
and that the tested samples of Butter each contained a mixture
of heroin and fentanyl.19 But that does not establish whether
the quantity of fentanyl present in the tested samples was lethal
or whether sufficient bags of heroin were sampled to conclude
that the remaining packets also contained fentanyl. Moreover,
the DEA testimony established that some of the remaining bags
probably contained no fentanyl.
D.
The government argues that the Viking bags were in the
zippered compartment of Ally’s closed shoulder bag and that
it is therefore unlikely that she obtained her fatal dose from
those bags. It relies, in part, upon testimony from Detective
Cowdright. He testified that Ally’s closed shoulder bag was a
“to-go bag for drug users” to imply that she relied upon those
Viking bags when outside the apartment.20 The government
contrasts those bags to the Butter bags strewn on the floor and
on top of a trashcan in the apartment. However, concluding
that Ally did not use drugs from her “to-go bag” the night of
her death is not without problems. The government did not
even establish whether the compartment of her bag containing
the Viking packets was zippered closed when it was found.
This argument thus did not have the benefit of the stronger
inference that could have arisen if her bag had been zippered
closed. It is reasonable to assume that one who is intent on
getting high would not close the bag she retrieved the drugs
from before using them.
The government also made no attempt to establish the
source of the Viking bags. That heroin certainly was never tied
to Jacobs. Though the government established that Jacobs
supplied Butter heroin to Collins who then sold it to Ally, she
may have had additional dealers. Ally’s boyfriend, Kane, even
testified that sometimes her friend Patrick drove her to get
drugs. In fact, Patrick drove her to get drugs from Collins on
the night of her death. For reasons known only to the
government, Patrick was neither called to testify at trial nor
19 App. 115.
20 App. 476.

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8
even interviewed by Detective Cowdright.21 There was thus
no way to know if Patrick had also taken Ally to purchase drugs
from someone other than Collins on the night of her death, and
the government apparently made no effort to eliminate that
possibility.
Even if Ally did buy exclusively from Collins, he
testified that he could not remember if he had ever sold a
Viking or Bulldog bag, as he had “sold so many different
stamps.”22 Collins also testified that he had been dealing
Jacobs’s drugs exclusively for only three months before Ally’s
death. Collins had dealt to Ally for the past two-and-a-half
years. Accordingly, Ally may have kept the drugs Collins sold
prior to those three months or drugs from other dealers in her
“to-go” bag. Since she may have taken drugs from that bag the
night of her overdose and none of that was tied to Jacobs, the
fatal dose could have come from a supply that was not
traceable to Jacobs.
II.
Of course, as I noted at the outset, the government need
not negate all possible alternatives to Jacobs being the fatal
dealer. Its burden is only proof beyond a reasonable doubt, not
beyond all doubt.23 The government, however, was required
to produce a case that does not undermine public faith in
judicial proceedings. Yet that is exactly what it did here by
submitting a case with so many gaps and blatant failures in its
investigation. Nevertheless, because the threshold for our
review is so low and the totality of the evidence rises slightly
above pure speculation, as Judge Ambro explains, I simply
cannot conclude that the government’s long list of failures here
left the jury with insufficient evidence to find Jacobs guilty
beyond a reasonable doubt. Even though it comes perilously
close to doing so.
21 App. 508–09 (Q: “[D]id any member of law enforcement
involved in this investigation interview Patrick?” A: “We had
discussed it. I don’t know if he was interviewed by the DEA
or not.” “Would they have told me? . . . I’m not too sure. I
don’t have any information on whether Patrick was
interviewed by them or not.”).
22 App. 669–70.
23 Isaac, 134 F.3d at 202.

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9
Moreover, although I am troubled by the extrapolation
problems that I have pointed out, as well as the absence of a
quantitative analysis, it is undisputed that Ally consumed a
fatal dose of fentanyl that was mixed with heroin. Also, Kane’s
testimony does establish that it was more likely than not that
the heroin she ingested came from Jacobs—even though the
link is a tenuous one. Thus, for the reasons Judge Ambro
explains and that I have tried to point out, the evidence and
testimony that the government did manage to present at trial
just barely crosses the very low threshold necessary under
plain-error review. I therefore agree that there is enough
evidence for the jury to have found Jacobs guilty beyond a
reasonable doubt.
That certainly does not prevent me from explaining the
problems with this evidence, the highly speculative nature of
it, or the tenaciously tenuous thread connecting Jacobs with
Ally’s fatal heroin injection. I also think it is important to note
that the failure of the government to adequately do its job here
unnecessarily complicated the jury’s decision-making and thus
our review.
Nevertheless, because the evidence barely crosses the
necessary threshold for finding sufficient evidence, I
reluctantly join the Majority in finding a rational juror could
have decided Jacobs was guilty beyond a reasonable doubt—
for all the reasons Judge Ambro explains.

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