United States v. Jacobs

1

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AMORD DEMETRICH JACOBS, Defendant-Appellant.

No. 21-4549

United States Court of Appeals, Fourth Circuit

May 22, 2023

UNPUBLISHED

Submitted: May 5, 2023

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W Flanagan, District Judge. (7:18-cr-00155-FL-1)

ON BRIEF:

Jorgelina E. Araneda, ARANEDA & STROUD LAW GROUP Raleigh, North Carolina, for Appellant.

Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, David G. Beraka, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before WILKINSON and AGEE, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Amord Demetrich Jacobs appeals his jury conviction for possession with intent to distribute 28 grams or more of cocaine base and a quantity of cocaine, in violation of 21 U.S.C. § 841(b)(1), and the imposed 140-month sentence. Jacobs first asserts that the district court reversibly erred by not declaring a mistrial based on the jury's failure to follow the court's instructions. Jacobs also asserts that the court erred in denying his Fed. R. Crim. P. 29 motion for judgment of acquittal because he argues that the Government failed to introduce sufficient evidence to establish that he intended to distribute the narcotics seized on the day of his arrest. Jacobs last challenges the reasonableness of his sentence based on the district court's decision to (1) enhance his offense level for obstruction of justice pursuant to U.S. Sentencing Guidelines Manual (USSG) § 3C1.1 (2018), without holding an evidentiary hearing; and (2) deny his motion for a downward variance. Finding no error, we affirm.

I. Failure to Declare Mistrial

Where, as here, a defendant fails to move for a mistrial, but argues on appeal that the trial court should have declared a mistrial sua sponte, we review for plain error. United States v. Cabrera-Beltran, 660 F.3d 742, 754 (4th Cir. 2011). Under the plain error standard, Jacobs may not obtain relief unless he establishes that the district court erred, that its "error was plain," that "the error affected [his] substantial rights, meaning that there is a reasonable probability that, but for the error, the outcome of the proceeding would have been different," and that "the error had a serious effect on the fairness, integrity or public reputation of judicial proceedings." United States v. Heyward, 42 F.4th 460, 465 (4th Cir. 2022) (internal quotation marks omitted). "This standard is difficult to satisfy." Id. (internal quotation marks omitted).

We conclude that the district court committed no plain error in failing to sua sponte declare a mistrial. We first find that the district court committed no error because it promptly and adequately remedied any failure by the jury to follow the court's instructions and promptly issued an Allen charge.^[*] And even if the jury's behavior potentially warranted a mistrial, Jacobs posits no argument as to how the jury's conduct affected his substantial rights. Indeed, even more egregious jury misconduct than is at issue here will not necessarily affect a defendant's substantial rights. See United States v. Basham, 561 F.3d 302, 321 (4th Cir. 2009) (upholding district court's declination to declare mistrial after juror contacted multiple media outlets during trial where the communications were "devoid of substantive content" (internal quotation marks omitted)); see also United States v. West, 877 F.2d 281, 288 (4th Cir. 1989) ("A defendant must show prejudice in order for the court's ruling to constitute an abuse of discretion, and no prejudice exists if the jury could make individual guilt determinations by following the court's cautionary instructions."). In any event, we find that the jury's behavior here did not seriously affect the fairness, integrity, or public reputation of judicial proceedings or give rise to "the most extraordinary of circumstances" required to warrant a reversal. United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997).

II. Rule 29 Motion

A district court, "on the defendant's motion[,] must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a); see United States v. Duroseau, 26 F.4th 674, 678 (4th Cir. 2022) ("Under Rule 29 . . ., the defendant may move for a judgment of acquittal at the close of the government's case, after the close of all evidence, or after the jury returns a guilty verdict."). "We review de novo a district court's denial of a Rule 29 motion." United States v. Moody, 2 F.4th 180, 189 (4th Cir. 2021) (internal quotation marks omitted). In doing so, we must "draw[] all reasonable inferences from the facts" in the light most favorable to the Government," United States v. Denton, 944 F.3d 170, 179 (4th Cir. 2019) (internal quotation marks omitted), and "will uphold the verdict if . . . it is supported by substantial evidence," United States v. Savage, 885 F.3d 212, 219 (4th Cir. 2018) (internal quotation marks omitted).

Substantial evidence "is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." Id. (internal quotation marks omitted). The relevant "legal question [is] whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Musacchio v. United States, 577 U.S. 237, 243 (2016) (internal quotation marks omitted). Accordingly, "[a] defendant who brings a sufficiency challenge bears a heavy burden, as appellate reversal on grounds of insufficient evidence is confined to cases where the prosecution's failure is clear." Savage, 885 F.3d at 219 (internal quotation marks omitted).

As is relevant here, "[t]he elements necessary to prove a conviction for possession with intent to distribute cocaine base are: (1) possession of the cocaine base; (2) knowledge of this possession; and (3) intention to distribute the cocaine base." United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc). Notably, "[t]he requisite intent to distribute may be inferred if the quantity of drugs is greater than would be used for personal consumption." Id. We have reviewed the record and considered the parties' arguments and conclude that the Government presented sufficient evidence to support the jury's guilty verdict. See United States v. Smith, 21 F.4th 122, 134 (4th Cir. 2021) (recognizing that "[t]here is no perfect demarcation between drug users and distributors-many are both-and district courts must enjoy discretion in policing this line"); cf. United States v. Wright, 131 F.3d 1111, 1113-16 (4th Cir. 1997) (holding that defendant found in possession of only 3.25 grams of cocaine not entitled to jury instruction on lesser included offense of simple possession).

III. Sentence

We review a sentence for "reasonableness" by applying the "deferential abuse-of-discretion standard." United States v. McCain, 974 F.3d 506, 515 (4th Cir. 2020) (internal quotation marks omitted). In doing so, "[o]ur inquiry proceeds in two steps." United States v. Friend, 2 F.4th 369, 379 (4th Cir.), cert. denied, 142 S.Ct. 724 (2021). We must "first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the [Sentencing] Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence." Id. (internal quotation marks omitted). "Only if we determine that the sentence is procedurally reasonable do we then proceed to substantive reasonableness by considering the totality of the circumstances." Id. (internal quotation marks omitted).

"In assessing whether a district court properly calculated the Guidelines range, including its application of any sentencing enhancements, [we] review[] the district court's legal conclusions de novo and its factual findings for clear error." United States v. Pena, 952 F.3d 503, 512 (4th Cir. 2020) (internal quotation marks omitted). "[C]lear error exists only when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Slager, 912 F.3d 224, 233 (4th Cir. 2019) (internal quotation marks omitted).

Our consideration of the substantive reasonableness of a sentence "takes into account the totality of the circumstances to determine whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a)." United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020) (internal quotation marks omitted). "[A]ny sentence that is within or below a properly calculated Guidelines range is presumptively reasonable." United States v. Gillespie, 27 F.4th 934, 945 (4th Cir.) (internal quotation marks omitted), cert. denied, 143 S.Ct. 164 (2022). A defendant can only rebut that presumption "by showing that the sentence is unreasonable when measured against the . . . § 3553(a) factors." United States v. Bennett, 986 F.3d 389, 401 (4th Cir. 2021) (internal quotation marks omitted).

Jacobs first argues that his sentence is procedurally unreasonable because the district court increased his offense level for obstruction of justice without a proper evidentiary hearing. But this...