NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 19-3220 ____________

UNITED STATES OF AMERICA

v.

JEROME LAMONT DUGGAN, a/k/a Rome, Appellant ____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 5:17-cr-00523-001) District Judge: Hon. Joseph F. Leeson, Jr. ____________

Submitted Under Third Circuit LAR 34.1(a) November 12, 2021

Before: HARDIMAN, MATEY, and SCIRICA, Circuit Judges.

(Filed: December 2, 2021)

____________

OPINION* ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Jerome Lamont Duggan appeals his judgment of conviction and sentence after a

jury found him guilty of drug trafficking. We will affirm.

I1

Duggan raises two arguments on appeal. He claims the District Court: (1) abused

its discretion when it admitted evidence under Federal Rule of Evidence 404(b); and

(2) committed procedural error relative to his sentence. We consider each argument in

turn.

A

We begin with Duggan’s evidentiary challenge. He contends the District Court

erred when it admitted evidence related to his 2008 conviction for drug distribution.

Duggan argues the evidence was inadmissible under Federal Rule of Evidence 404(b)(1),

which precludes evidence of other crimes to show that a defendant has a propensity to

commit criminal acts. See Fed. R. Evid. 404(b)(1). But such evidence may be admissible

under Rule 404(b)(2), to prove, inter alia, intent, knowledge, absence of mistake, or lack

of accident. See Fed. R. Evid. 404(b)(2).

The Government filed a motion in limine, arguing the evidence was admissible to

prove Duggan’s knowledge and intent to commit the offenses at issue in this appeal. To

satisfy Rule 404(b)(2), the Government must first establish a proper evidentiary purpose

1 The District Court had jurisdiction under

.We have jurisdiction under

and

. 2 under Rule 404(b)(3) and establish relevancy under Rule 402. United States v. Brown,

(3d Cir. 2014) (citing United States v. Caldwell,

(3d Cir.

2014)). The District Court granted the Government’s motion, explaining: “The evidence

that [the defendant] had been convicted of distribution of cocaine makes [his] knowledge

of the presence of the heroin more probable than it would have been without the evidence

as it indicates that [the defendant] had knowledge of drugs and drug distribution, and thus

that it was less likely that he was simply in the wrong place at the wrong time.” App. 18

(quoting United States v. Givan,

(3d Cir. 2003) (alteration in

original)).

To comply with Rule 404(b), the District Court also had to weigh the probative

value of the evidence against its prejudicial effect under Rule 403 and give a limiting

instruction as Duggan requested. Brown,

(citing Caldwell,

); Fed. R. Evid. 403. The Court conducted a Rule 403 balancing test and ruled the

probative value of Duggan’s statements and purchases substantially outweighed their

danger of unfair prejudice. Yet the Court limited the evidence as follows: of 15 controlled

drug purchases in 2007, the Court permitted evidence of only one per type of drug—

methamphetamine, cocaine, and marijuana—to demonstrate knowledge and intent to sell

the same drugs. The Court allowed evidence of items seized and admissions of ownership

Duggan made to law enforcement in 2007 because they tended to show knowledge and

intent regarding the different drugs and paraphernalia involved in the current prosecution.

The Court also concluded that the probative value of Duggan’s statements and purchases

was not substantially outweighed by their danger of unfair prejudice. Finally, the Court

3 prudently excluded evidence and statements from the 2007 arrest—ranging from stolen

handguns and a flak jacket to the duration of Duggan’s earlier drug trafficking—where

the probative value was substantially outweighed by the danger of unfair prejudice.

The District Court’s handling of the 404(b) evidence was sound. The probative

value of Duggan’s previous drug trafficking is obvious and consistent with our precedent.

See, e.g., Givan, 320 F.3d at 460–61 (3d Cir. 2003) (six-year-old drug distribution

conviction was admissible to show knowledge and intent of defendant who was found in

a car with heroin hidden under his seat). The Court issued effective limiting instructions,

making clear the evidence of the prior investigation and conviction could be used only to

show Duggan’s knowledge and intent to control the drugs seized in 2016. So the Court

did not abuse its discretion in admitting evidence of Duggan’s prior conviction for drug

distribution and the associated investigation under Federal Rule of Evidence 404(b)(2).

See United States v. Cruz,

(3d Cir. 2003).

B

We next consider Dugan’s challenge to his 324-month criminal sentence. Though

he made no objection to the Presentence Investigation Report (PSR) or the sentencing

proceeding, Duggan now claims the District Court committed procedural error when it

based his sentence, in part, on a disparity analysis with a co-conspirator. Duggan’s

argument fails to persuade because it is inconsistent with the sentencing statute and our

caselaw.

The jury found Duggan guilty on all five counts of the superseding indictment

following a four-day trial. The PSR, which the District Court adopted at sentencing,

4 calculated a Guidelines range of 262 to 327 months’ imprisonment. The District Court

sentenced Duggan to a within-Guidelines sentence of 324 months’ imprisonment on

Counts One through Four and 60 months’ imprisonment on Count Five, to be served

concurrently.

We “presume the substantive reasonableness” of a “within-Guidelines sentence.”

United States v. Freeman,

(3d Cir. 2014). Duggan argues the District

Court committed procedural error when it based his sentence, in part, on a disparity

analysis with a co-conspirator (Culbreath). That argument conflicts with

(a)(6), which directs courts to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct. The

remainder of Duggan’s challenge to his sentence is couched as procedural error, but his

disagreements with the District Court’s factfinding and evaluation of the evidence are

actually substantive disagreements with the judgment calls made at sentencing.

In sum, the District Court made no procedural misstep, and its evaluation of the

§ 3553(a) factors justified Duggan’s top-of-the-Guidelines sentence. We perceive no

error by the District Court, much less plain error. See, e.g., United States v. Couch,

, 252–53 (3d Cir. 2002).

* * *

For the reasons stated, we will affirm the District Court’s judgment of conviction

and sentence.

5