United States of America v. MARK JACOBS a/k/a Skinny Mark Mark Jacobs

NOT PRECEDENTIAL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

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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, 235 F.3d 858, 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)

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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, 190 F.3d 188, 197 (3d Cir. 1999) cert. denied, 120 S.Ct. 969 (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, 243 F.3d 758, 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

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the state PSI in advance of the hearing and had been given an opportunity to comment on
it”); United States v. Sciarrino, 884 F.2d 95 ,97 (3d Cir. 1989); United States v. Romano,
825 F.2d 725, 729 (2d Cir.1987).
For the above reasons, we affirm.

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