UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4943

KENNETH DELCARRA JACOBS,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Catherine C. Blake, District Judge.

(CR-01-50)

Submitted: June 16, 2003

Decided: July 22, 2003

Before LUTTIG and MICHAEL, Circuit Judges,

and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Gerald C. Ruter, LAW OFFICES OF GERALD C. RUTER, P.C.,

Baltimore, Maryland, for Appellant. Thomas M. DiBiagio, United

States Attorney, Sandra Wilkinson, Assistant United States Attorney,

Greenbelt, Maryland, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Kenneth Delcarra Jacobs appeals his convictions and sentence for

conspiracy to distribute and possess with intent to distribute fifty

grams or more of cocaine base in violation of 21 U.S.C. § 846 (2000)

(count one), distribution and attempted distribution of cocaine base in

violation of 21 U.S.C. § 841 (a)(1) (2000) (counts two through nine),

possession of a firearm after a felony conviction in violation of 18

U.S.C. § 922(g)(1) (2000) (count ten), and possession of ammunition

after a felony conviction in violation of § 922(g)(1) (count eleven).

The district court sentenced him to a total imprisonment term of 420

months, to be followed by a total supervised release term of five

years. Finding no reversible error, we affirm. 

Jacobs contends that the evidence at trial was insufficient to find

him guilty of possession of a firearm after a felony conviction. We

must uphold Jacobs’ conviction on appeal if there is substantial evidence in the record to support it. See Glasser v. United States, 315

U.S. 60, 80 (1942). In determining whether the evidence in the record

is substantial, we view the evidence in the light most favorable to the

government and inquire whether there 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." United

States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). To convict Jacobs of possession of a firearm after a felony conviction, the

Government had to prove that: "(1) [Jacobs] previously had been convicted of a crime punishable by a term of imprisonment exceeding

one year; (2) [he] knowingly possessed . . . the firearm; and (3) the

possession was in or affecting commerce, because the firearm had

travelled in interstate . . . commerce at some point during its existence." United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en

banc). 

2 UNITED STATES v. JACOBS
Jacobs stipulated that he had been convicted of a felony and had

not had his right to own or possess a firearm restored. Furthermore,

Jacobs does not contest on appeal that he knowingly possessed the

firearm. Thus, the only issue is whether the firearm had traveled in

or affected interstate commerce. We have reviewed the record and

conclude that there was sufficient evidence from which the jury could

find that the 9mm handgun recovered by police had traveled in or

affected interstate commerce. Although the handgun originally had

been purchased from a gun manufacturer in Maryland, there was testimony at Jacobs’ trial that the gun was later shipped out of Maryland

by the Worcester County Sheriff’s Department. 

Jacobs next contends that the district court erred by denying his

motion to sever his trial from that of his co-defendants because there

were irreconcilable defenses at the trial. We conclude that Jacobs

waived his objection to a joint trial because he failed to file a motion

to sever prior to trial, see Fed. R. Crim. P. 12(b)(3)(D), and does not

claim on appeal that he had insufficient information to make a severance motion prior to trial. See Fed. R. Crim. P. 12(e); United States

v. Ferguson, 778 F.2d 1017, 1019-20 (4th Cir. 1985). 

Jacobs further contends that the district court erred in denying his

request for a downward adjustment for acceptance of responsibility

pursuant to U.S. Sentencing Guidelines Manual § 3E1.1 (2001). A

district court’s determination as to the defendant’s acceptance of

responsibility is a factual question reviewed for clear error. United

States v. Ruhe, 191 F.3d 376, 388 (4th Cir. 1999). The burden is on

the defendant to establish by a preponderance of the evidence that he

is entitled to the adjustment. United States v. Urrego-Linares, 879

F.2d 1234, 1238-39 (4th Cir. 1989). An adjustment generally is not

available to a defendant who pleads not guilty and proceeds to a contested trial. The adjustment may be applicable, however, to a defendant who pleads not guilty and "goes to trial to assert and preserve

issues that do not relate to factual guilt (e.g., to make a constitutional

challenge to a statute or a challenge to the applicability of a statute

to his conduct)." USSG § 3E1.1, comment. (n.2). 

Despite Jacobs’ contention that he was entitled to an adjustment for

acceptance of responsibility because he gave a complete account of

his involvement in the drug conspiracy to police, we find that the disUNITED STATES v. JACOBS 3
trict court correctly denied Jacobs’ request for an adjustment for

acceptance of responsibility. Although Jacobs admitted his involvement in the drug conspiracy, he denied throughout his entire trial that

he was involved in more than fifty grams of cocaine base and, thus,

acted in a manner inconsistent with acceptance of responsibility. See

USSG § 3E1.1, comment. (n.1). 

Finally, Jacobs contends that the district court’s determination of

the drug quantities attributable to him as relevant conduct was clearly

erroneous. The district court’s determination of the drug quantity

attributable to a defendant is a factual finding reviewed for clear error.

United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). In determining drug quantity, a district court must consider whether the government has established drug quantity by a preponderance of the

evidence. United States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996).

Under USSG § 1B1.3(a)(2), drug quantities not specified in the count

of conviction are considered as relevant conduct for sentencing when

they are part of the same course of conduct or common plan or

scheme. In calculating drug amounts, the court may consider any relevant information, provided that the information has sufficient indicia

of reliability to support its probable accuracy. United States v.

Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992). Because the drug conspiracy lasted approximately three years, and Jacobs stated to police

that he purchased for resale 3.5 grams of cocaine base every other

day, we conclude that the district court did not err in its determination

that Jacobs was involved in more than 150 grams of cocaine base. See

Cook, 76 F.3d at 604. 

Accordingly, we affirm Jacobs’ convictions and sentence. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process. 

AFFIRMED

4 UNITED STATES v. JACOBS