#### UNITED STATES of America, v. Rasheed JACOBS, Appellant.

No. 01-2608.

United States Court of Appeals, Third Circuit.

Argued March 29, 2004.

Decided April 23, 2004.

*813Marlene S. Cooperman (Argued), Philadelphia, PA, for Appellant.

Kathy A. Stark (Argued), Office of the United States Attorney, Philadelphia, PA, for Appellee.

Before: ALITO, FISHER, and ALDISERT, Circuit Judges.

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. 3 (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 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. Garth,*188 F.3d 99, 111-112 (3d Cir.l999)(defining constructive possession.)

For the above reasons, we affirm.