United States of America v. Rasheed Jacobs

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-2608
UNITED STATES OF AMERICA
v.
RASHEED JACOBS
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 00-CR-313-10)
District Court Judge: Honorable J. Curtis Joyner
Argued March 29, 2004
Before: ALITO, FISHER, and ALDISERT, Circuit Judges.
(Opinion Filed: April 23, 2004)
MARLENE S. COOPERMAN
(Argued)
Suite 940
6th & Chestnut Streets
Public Ledger Building
Philadelphia, PA 19106

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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:
This is a direct appeal in a criminal case. We find Jacobs’s claims to be without
merit and affirm the District Court’s judgment and sentence.
First, even though the jury acquitted Jacobs of the conspiracy count, the District
Court properly increased his sentence based on his significant involvement in the
distribution of approximately 11 kilos of crack cocaine. See United States v. Miele, 989
F.2d 659, 663 fn. (3d Cir. 1993). While we agree with the District Court that the proper
standard for the District Court to use was “preponderance of the evidence” and not “clear
and convincing evidence,” compare Miele, 989 F.2d 659, 663 fn. 3 with United States v.
Kikumura, 918 F.2d 1084, 1110-1111 (3d Cir. 1990), we find that, under either standard,
the District Court properly increased Jacobs’s sentence. The Government provided ample
evidence, including surveillance, cooperating witnesses, and physical evidence, that

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convincingly showed the Jacobs acted in cahoots with his brothers, Mark and Quadre, to
distribute over 11 kilos of crack cocaine. Jacobs lived in the same house as his two
brothers, used the same crack cocaine cooker as his brother Mark, and was often seen
dealing drugs on the corner with his brothers. Furthermore, other members of the
conspiracy testified that the brothers worked as team. With such evidence in the record,
we cannot find that the District Court was clearly erroneous in its sentencing. See
Mazzocchi Bus Co., Inc. v. C.I.R., 14 F.3d 923, 934 fn. 19 (3d Cir. 1994). Thus, any
error by the District Court in applying the proper standard was harmless.
Second, the District Court did not err in refusing to overturn Jacobs’s firearms
convictions. Viewed in “the light most favorable to the government,” there was sufficient
evidence to prove guilt beyond a reasonable doubt. See United States v. Frorup, 963 F.2d
41, 42 (3d Cir. 1992). The jury could have believed that the firearm was in plain sight
near the door of the house. The house was used to “cook” and store substantial quantities
of crack. The jury could have believed that the firearm was kept near the door so that any
of the drug dealers residing there could readily obtain and use it against rivals in the drug
trade, law enforcement, or others. Thus, despite Jacobs’s claim that the firearm was in
the sole possession of his brother, Mark, a rational trier of fact could have found that
Rasheed Jacobs, as well as his brother, had constructive possession of the firearm. See
United States v. Demes, 941 F.2d 220, 223 (3d Cir. 1991)(proximity of guns and drugs
gives strong inference that the gun was used to further the drug crime); United States v.

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Garth, 188 F.3d 99, 111-112 (3d Cir. 1999)(defining constructive possession.)
For the above reasons, we affirm.

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