United States v. Jacobs , 162 F. App'x 148 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-6-2006
USA v. Jacobs
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2711
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2711
________________
UNITED STATES OF AMERICA
v.
ORLANDO JACOBS,
Appellant.
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Crim. No. 93-cr-00141-1)
District Judge: Honorable Thomas M. Hardiman
__________________________
Submitted Under Third Circuit LAR 34.1(a)
December 13, 2005
BEFORE: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES
(Filed : January 6, 2006 )
_________________
OPINION
_________________
PER CURIAM
Appellant Orlando Jacobs was convicted following a jury trial in United States
District Court for the Western District of Pennsylvania of possession of a weapon by a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1). The indictment alleged that
Jacobs possessed a .357 magnum revolver, after having been previously convicted in the
Court of Common Pleas of Allegheny County, Pennsylvania, for the crime of burglary.
Applying the "Armed Career Criminal" provision of the Guidelines, U.S.S.G. § 4B1.4,
the sentencing court concluded that Jacobs' guidelines' sentencing range was 262 to 327
months, and the court sentenced him to imprisonment for 22 years.
We affirmed in United States v. Jacobs, 44 F.3d 1219 (3d Cir. 1995), and Jacobs’
petition for writ of certiorari was denied. A motion to vacate sentence under 28 U.S.C. §
2255 was denied by the sentencing court, and, in 1999, we denied Jacobs’ request for a
certificate of appealability with respect to that decision. We then denied an application
made by Jacobs in 2001 for leave to file a second or successive section 2255 motion.1
In May 2004, Jacobs filed a motion in the district court for clarification and
correction of sentence pursuant to 18 U.S.C. § 3582(c)(2). He argued that Amendment
599 to the Guidelines applied to him and would lower his applicable sentencing range.
He also contended that a four-level enhancement under U.S.S.G. § 2K2.1(b)(5) for
recklessly endangering the arresting officer was improperly assessed under United States
v. Fenton, 309 F.3d 825 (3d Cir. 2002), a case we decided after the conclusion of Jacobs’
section 2255 proceedings. In a somewhat related claim, he contended that the offense
conduct of recklessly endangering the arresting officer was impermissibly double counted
1
In that application, Jacobs had contended that his sentence was enhanced pursuant to
the Armed Career Criminal Act even though the indictment did not charge him with, nor
did the jury find him guilty of, violating 18 U.S.C. § 924(e)(1), which imposes a fifteen
year minimum sentence for career criminals who violate section 922(g).
2
under both § 4B1.4(b)(3) and § 2K2.1(b)(5).
The District Court addressed Jacobs’ claim concerning the applicability of
Amendment 599 as one properly raised pursuant to 18 U.S.C. § 3582(c)(2), but the court
would not consider the remaining claims, because they did not involve an amendment to
the Guidelines. Relief was denied as to Amendment 599 because it did not apply to
Jacobs. Jacobs filed a timely motion for reconsideration, which was denied in an order
entered on May 12, 2005. Jacobs appeals.
We will affirm. Section 3582(c)(2) provides that, upon motion of a defendant, the
court may reduce a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).
Amendment 599 went into effect on November 1, 2000 and expanded the commentary to
U.S.S.G. § 2K2.4 on use of a firearm during or in relation to certain crimes. It was made
retroactive pursuant to § 1B1.10. Amendment 599 was intended to clarify the
circumstances in which a defendant sentenced for a violation of 18 U.S.C. § 924(c) in
conjunction with convictions for other offenses may receive weapon enhancements
contained in the Guidelines for those other offenses. See U.S. Sentencing Guidelines
Manual app. C, vol. II, at 69-70 (2003).
Jacobs was convicted of violating § 922(g)(1). He was not charged with violating
18 U.S.C. § 924(c), and his sentence was not based on guidelines germane to that statute.
Amendment 599 does not apply to or modify the guidelines under which he was
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sentenced. The District Court did not err in rejecting this claim.
We further agree with the District Court that the remaining claims cannot be
brought under section 3582(c)(2), because they are not founded on a change in the
Guidelines. In Fenton, 309 F.3d 826, we held that, for purposes of applying the four-level
enhancement under § 2K2.1(b)(5), the phrase “another felony offense” means a felony or
act other than the one used by the sentencing court to calculate the base offense level. Id.
at 827. More recently, in United States v. Lloyd, 361 F.3d 197 (3d Cir. 2004), we
explained that: “We read Fenton ... as standing for the proposition that, where a defendant
is convicted for possession of firearms resulting from a theft of those same firearms, that
theft is effectively a "firearms possession ... offense." Id. at 202.
Fenton thus concerned the interpretation of an existing Guideline. It did not
involve a sentencing range that subsequently had been lowered “by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). Jacobs’ claim under Fenton, and his related
double counting claim involving § 4B1.4(b)(3) and § 2K2.1(b)(5), are the kinds of
contentions appropriately raised on direct appeal, or, if waived, in a section 2255 motion
to vacate sentence upon a showing of cause and prejudice. United States v. Frady, 456
U.S. 152 (1982).
Second collateral challenges to a conviction and sentence, like this one of Jacobs’
involving our decision in Fenton, are barred under the Antiterrorism and Effective Death
Penalty Act, see 28 U.S.C. §§ 2255 and 2244, unless they are certified by a court of
4
appeals to contain a prima facie showing of newly discovered evidence that would be
sufficient to establish that no reasonable factfinder would have found the movant guilty of
the offense or a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable. These claims have not
been appropriately certified nor would certification be warranted.
The Fenton and related double counting claims lack merit in any event. Jacobs
was sentenced as an armed career criminal under U.S.S.G. § 4B1.4. Jacobs, 44 F.3d at
1227. The enhancement under § 2K2.1(b)(5) played no role in the actual determination
of his sentence. In addition, Fenton does not affect the applicability of the armed career
offender guideline in Jacobs’ case. The government’s evidence established that, as the
arresting officer approached with his gun drawn, Jacobs pulled his weapon from his
waistband and pointed it at him. Jacobs, 44 F.3d at 1221. His act of doing so establishes
that he possessed the gun in connection with another felony offense; thus, an
enhancement was warranted under either § 2K2.1(b)(5) or § 4B1.4(b)(3). The crime of
recklessly endangering another in violation of 18 Pa. Cons. Stat. Ann. § 2705 involves a
sufficient distinction in conduct from the crime of possession so as to constitute "another
felony offense" for purposes of § 2K2.1(b)(5). See generally Lloyd, 361 F.3d at 204(holding that state law crime of criminal mischief is distinct from crime of possession of
unregistered explosives under Blockburger).2
2
Like the state law crime at issue in Lloyd, this second degree misdemeanor with
which Jacobs was charged is punishable by up to two years in prison, 18 Pa. Cons. Stat.
5
Finally, Jacobs has argued in his informal brief that his sentence enhancement for
pointing a gun at the arresting officer violates the Sixth Amendment because it was based
on facts determined by a judge instead of a jury, but we recently held that Booker v.
United States, 125 S. Ct. 738 (2005), does not apply retroactively to cases on collateral
review. Lloyd v. United States, 407 F.3d 608, 614-16 (3d Cir.), cert. denied, 126 S. Ct.
288 (U.S. October 3, 2005).
We will affirm the order of the District Court denying the motion for clarification
and correction of sentence.
Ann. § 1104(2), and it thus is sufficient to constitute a felony under the Guidelines.
Lloyd, 361 F.3d at 204 (citing U.S.S.G. § 2K2.1, cmt. n.7).
6