US v. Nicole Clark
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:14-cr-00008-MSD-DEM-1 Copies to all parties and the district court/agency. [999988425].. [15-4182]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4182
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NICOLE FELICIA CLARK, a/k/a Mo,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District Judge.
(2:14-cr-00008-MSD-DEM-1)
Argued:
October 26, 2016
Decided:
December 16, 2016
Before DUNCAN and AGEE, Circuit Judges, and Bruce H. HENDRICKS,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Harry Dennis Harmon, Jr., Norfolk, Virginia, for
Appellant.
Darryl James Mitchell, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee.
ON BRIEF: Dana J.
Boente, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
On December 2-4, 2014, in the U.S. District Court for the
Eastern District of Virginia, Norfolk Division, defendant Nicole
Felicia
Clark
was
tried
superseding indictment.
before
a
jury
on
a
four-count
Count one of the superseding indictment
charged Clark with conspiracy to distribute and possession with
intent to distribute cocaine and heroin, in violation of Title
21 of the United States Code §§ 846, 841(a)(1) and (b)(1)(A).
Count
two
of
the
superseding
indictment
charged
her
with
possession with intent to distribute heroin, in violation of
Title 21 of the United States Code §§ 841(a)(1) and (b)(1)(A).
Counts three and four of the superseding indictment charged her
with possession with intent to distribute heroin, in violation
of
Title
21
(b)(1)(A).
and
on
of
the
United
States
Code
§§
841(a)(1)
and
Clark elected to proceed pro se during the trial,
December
4,
2014,
she
was
found
guilty
of
all
four
counts.
Clark continued to represent herself during the sentencing
phase of the case.
The district court, inter alia, applied a
two-level sentencing enhancement for maintaining a drug-related
premises and sentenced Clark to 240 months’ imprisonment on each
of
the
four
concurrently.
counts,
with
these
terms
of
confinement
to
run
During the sentencing phase, Clark objected to
certain paragraphs of the presentence report; however, she did
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not object to the paragraphs that pertained to the sentencing
enhancement
for
maintaining
a
drug-related
premises.
This
specific enhancement increased Clark’s advisory guidelines range
from 188-235 months’ imprisonment to 235-293 months.
Clark objected to the appointment of counsel to represent
her
on
appeal.
However,
standby counsel.
she
agreed
to
the
appointment
of
Standby counsel filed a brief in this Court
pursuant to Anders v. California, 386 U.S. 738 (1967), inter
alia, inviting the Court to review the entire record in order to
determine
appeal.
whether
there
existed
any
non-frivolous
issue
for
On March 3, 2016, the Court directed the parties to
file supplemental briefs addressing whether sufficient evidence
supported
the
sentencing
related premises.
and for
the
enhancement
for
maintaining
a
drug-
After appropriate briefing and oral argument
reasons
stated
below,
we
affirm
the
defendant’s
sentence.
I.
Clark
under
contends
U.S.S.G.
§
that
the
2D1.1(b)(12)
sentencing
for
enhancement
maintaining
a
applied
drug-related
premises was not supported by sufficient evidence.
Ordinarily, we review a district court’s application of the
sentencing guidelines de novo and its factual findings for clear
error.
United States v. Strieper, 666 F.3d 288, 292 (4th Cir.
3
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2012).
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However,
where
a
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defendant
fails
to
object
in
the
district court, thus denying the district court the opportunity
to consider the purported error, such a defendant’s challenge to
the application of the guidelines is reviewed for plain error on
appeal.
United States v. Hargrove, 625 F.3d 170, 184 (4th Cir.
2010).
Clark
failed
to
object
to
the
§
2D1.1(b)(12)
enhancement, and we review the application of the enhancement
for plain error accordingly.
To
establish
plain
error,
Clark
must
show
that
(1)
the
district court erred, (2) the error was plain, and (3) the error
affected her substantial rights.
U.S. 725, 732–34 (1993).
United States v. Olano, 507
A “plain” error is one that is “clear”
or “obvious,” id. at 734, under “the settled law of the Supreme
Court or this circuit.”
United States v. Carthorne, 726 F.3d
503, 516 (4th Cir. 2013) (citation omitted).
In other words,
the presence of the error must be beyond reasonable dispute.
See United States v. Marcus, 560 U.S. 258, 262 (2010). Because
Clark
has
not
shown
that
the
district
court
committed
plain
error, we affirm.
II.
The Sentencing Guidelines allow for a two-level enhancement
to a defendant’s offense level “[i]f the defendant maintained a
premises
for
the
purpose
of
manufacturing
4
or
distributing
a
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controlled substance.”
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U.S.S.G. § 2D1.1(b)(12).
According to
the applicable commentary, “[a]mong the factors the court should
consider in determining whether the defendant ‘maintained’ the
premises
are
(A)
whether
the
defendant
held
a
possessory
interest in (e.g., owned or rented) the premises and (B) the
extent
to
which
the
the
defendant
activities
at,
Moreover,
“[m]anufacturing
controlled
premises.”
Id.
or
§
access
2D1.1
to,
n.
cmt.
distributing
a
or
17.
controlled
substance need not be the sole purpose for which the premises
was maintained, but must be one of the defendant’s primary or
principal
uses
defendant’s
for
the
incidental
premises,
or
rather
collateral
uses
than
for
one
the
of
the
premises.”
Id.
Clark argues that the two-level sentencing enhancement was
not supported by the evidence because: (1) she only delivered
illegal drugs to the premises and stayed overnight until they
were sold; (2) she did not have a possessory interest in, or
control access to, the premises; and (3) she did not maintain
the
premises
for
the
purpose
distributing illegal drugs.
evidence
demonstrated
warehouse
and
coconspirators’
application
of
the
of
manufacturing,
or
The government responds that the
apartment
distribution
hub
drug-trafficking
the
storing,
sentencing
5
in
for
question
served
Clark’s
business,
enhancement
and
making
against
as
a
her
the
Clark
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We agree with the government and find no plain
error in the application of the § 2D1.1(b)(12) enhancement.
III.
The premises at issue is an apartment on East Ocean View
Avenue (“Ocean View apartment” or “the apartment”) in Norfolk,
Virginia.
Dedrick
Leary
(“Leary”),
a
government
witness,
testified that he assumed occupancy of the Ocean View apartment
in 2012 with his associate Demetrius Lee (“Lee”).
J.A. 169–71.
Leary paid rent “to the tenant who was supposed to occupy [the
apartment]” over the course of approximately one year, but was
never the leaseholder.
Id. 170–71.
Soon after Leary and Lee
occupied the apartment, Quincy Freeman (“Freeman”) began staying
there
with
Lee
and
began
trafficking activities.
using
the
apartment
Id. 171–72, 179.
for
his
drug
Freeman, a government
witness, acknowledged that the Ocean View apartment was used for
the storage and distribution of cocaine and heroin.
Freeman
identified
Clark
as
a
member
Id. 100.
of
his
drug
distribution organization whose job it was to “drive the cocaine
from Atlanta to Virginia.”
Id. 88–94.
The drugs that Clark
transported to Virginia were usually stored at the Ocean View
apartment.
Id. 99–100.
Clark transported cocaine and heroin
from Atlanta and delivered the drugs to Freeman in Virginia “at
least five to ten times” during the conspiracy.
6
Id. 106–07.
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Clark transported cocaine from Atlanta to Virginia in quantities
ranging
from
transported
three
to
heroin
from
kilogram quantities.
delivered
by
apartment.
fifteen
Clark
kilograms.
Atlanta
to
Id. 111–14.
to
Freeman
Id.
Virginia
109–11.
in
one
to
She
three
Most of these drugs were
directly
at
the
Ocean
View
Id. 115.
According
to
Freeman,
after
Clark,
an
Atlanta
resident,
delivered drugs to him at the apartment she would stay there
overnight.
Id. 120, 138–40.
During these periods, she had
access to the entire apartment, including the back room where
the
drugs
and
money
were
stored.
Id.
139.
Clark
would
sometimes wait in Norfolk until Freeman finished selling the
drugs from her previous delivery in order to transport the full
proceeds back to Atlanta.
Id. 139–40.
In these instances,
Clark would remain at the Ocean View apartment for more than one
night.
Id.
Leary
testified
that
he
helped
Clark
and
coconspirators
“stretch” the cocaine at the Ocean View apartment.
186–87.
Id. 176–77,
This process involved adding a dietary food supplement
to the cocaine to increase its weight.
Id. 176.
Leary further
testified that he observed a handgun at the apartment, and Clark
later
asked
bigger
gun,
because the handgun present was too small in her opinion.
Id.
192–93.
him
and
Lee
where
she
could
get
a
According to Leary, Clark made an additional delivery
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cocaine
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after
Freeman’s
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arrest
apartment for “extended periods.”
Joseph
McPherson
testified
that
he
apartment
during
began
staying
at
the
Id.
(“McPherson”),
purchased
the
and
a
cocaine
conspiracy.
government
from
Id.
witness,
Freeman
226.
at
the
According
to
McPherson, after Freeman was arrested in May 2013, McPherson
went to the apartment where he saw Clark and a coconspirator.
Id.
232–33.
At
that
time,
Clark
told
McPherson
that
when
Freeman was arrested there had been a kilogram of heroin in the
apartment but it had since been stolen.
Id. 233.
We find that the foregoing constitutes sufficient evidence
to support application of the § 2D1.1(b)(12) enhancement under
plain
error
review.
Certainly,
the
evidence
outlined
above
establishes that “[m]anufacturing or distributing a controlled
substance . . . [was] one of [Clark’s and her coconspirators’]
primary or principal uses for the premises.” U.S.S.G. § 2D1.1
cmt n. 17.
Clark argues that neither Freeman’s nor Leary’s
testimony
established
that
she
distributed
drugs
from
the
premises.
Rather, she asserts, it was Freeman, Leary, and Lee
exclusively who used the premises to store, manufacture, and
distribute controlled substances.
But it is of little import
that Clark did not personally provide cocaine and heroin to midlevel dealers and end users.
Clark was an indispensable link in
Freeman’s drug distribution chain, and the conduct of which she
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was found guilty played an integral part in establishing the
principal use for the premises.
The issue of whether Clark “maintained” the premises is a
close
call
under
the
guidance
provided
in
the
commentary.
Courts are instructed to consider “whether the defendant held a
possessory interest” in the premises and “the extent to which
the
defendant
controlled”
access
and
activities
therein,
“[a]mong the factors” relevant to the determination.
as
See id.
The Seventh Circuit described the related inquiry with regard to
maintaining a drug-involved premises in violation of 21 U.S.C. §
856 in this way: “[A]n individual ‘maintains’ a drug house if he
owns or rents premises, or exercises control over them, and for
a sustained period of time, uses those premises to manufacture,
store, or sell drugs, or directs others to those premises to
obtain drugs.”
United States v. Acosta, 534 F.3d 574, 591 (7th
Cir. 2008).
In this case, Clark did not own or rent the premises, thus
eliminating the typical examples of a possessory interest in the
apartment.
However, there is evidence that she stayed overnight
at the Ocean View apartment regularly and had full access to the
apartment when she stayed there, including the portion of the
apartment that was used to store large quantities of drugs and
money.
Moreover, Clark had access to a firearm at the premises,
a weapon kept for protection due to the dangerous nature of the
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activities occurring there.
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Thus, the issue distills to whether
plenary access equals “control” under these facts.
It appears that there is no case law within this circuit
that speaks directly to this scenario, and the parties do not
offer any.
However, this Court has issued an unpublished case
that bears some relevance.
In United States v. Christian, the
Court found sufficient control such that § 2D1.1(b)(12) applied
even though the defendant did not own or lease the premises at
issue, where the defendant: (1) “traveled regularly between [the
apartment] and the place where he distributed drugs”; (2) “had a
key
to
the
apartment,
and
stayed
there
regularly
but
not
exclusively”; and, (3) “‘controlled’ a chest and a safe in the
master bedroom, which contained a great deal of money and drugs,
as well as two firearms.”
544 F. App’x 188, 191 (4th Cir.
2013).
Notably, in many cases where the defendant did not own or
rent the premises, but control was deemed to exist for purposes
of § 2D1.1(b)(12), the defendant had a key to the premises.
See, e.g., United States v. Renteria-Saldana, 755 F.3d 856, 859
(8th Cir.), cert. denied, 135 S. Ct. 423, 190 L. Ed. 2d 307
(2014) (finding enhancement proper where the defendant did not
own or reside at the stash house, but exercised control over it
by possessing a key to the premises, paying the utility bills,
regularly
picking
up
drugs
there,
10
and
bringing
drug-sale
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proceeds
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there
for
retrieval
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by
other
conspirators);
United
States v. Jones, 778 F.3d 375, 385 (1st Cir. 2015) (finding
enhancement proper where the defendant did not own or rent the
premises because the defendant’s control was demonstrated by the
facts that he had a key to the premises, came and went at will,
and slept there whenever he pleased); but see United States v.
Evans,
826
defendant
F.3d
did
934,
not
938
have
a
(7th
key,
Cir.
but
2016)
(noting
nevertheless
that
finding
the
that
control existed).
In the instant matter, the record is silent as to whether
Clark had a key to the Ocean View apartment or specifically
controlled any items within the apartment.
no
impetus
for
the
government
to
In truth, there was
offer
evidence
on
these
particular points, whether at trial or at sentencing, because
the offenses of conviction did not require such proof and Clark
did not object to the § 2D1.1(b)(12) enhancement.
The silence
of the record on these points partially limits our analysis and
demonstrates
preferable
why
as
a
objections
in
the
procedural
matter,
trial
but
court
lead
to
are
a
not
only
different
standard of review.
Ultimately,
we
find
that
the
trial
testimony
describing
Clark’s regular stays at the Ocean View apartment, her plenary
access thereto, and her integral participation in the rampant
drug activity therein is enough to confirm that she “controlled”
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the premises and thus “maintained” it for drug-related purposes.
See U.S.S.G. § 2D1.1 cmt n. 17.
Clark:
(1)
delivered
drugs
The evidence established that
to
the
apartment
on
multiple
occasions; (2) occupied the apartment with full knowledge of the
kilogram
quantities
of
cocaine
and
heroin,
drug-related
cash
proceeds, and a firearm stored there; (3) received drugs at the
apartment as compensation for her role in the scheme; (4) lodged
at
the
apartment
advancing
the
overnight
drug
for
trafficking
the
exclusive
business;
(5)
purpose
along
with
of
her
coconspirators, “stretched” drugs at the apartment to improve
the profits of the drug trade; (6) sought a larger firearm in
order
to
aid
in
controlling
access
and
activities
at
the
apartment; (7) made an additional delivery to the apartment and
stayed
there
for
“extended
periods”
after
one
of
her
coconspirators was arrested; and (8) devoted her activities at
the apartment solely to the drug distribution operation.
Under
these
circumstances,
we
cannot
conclude
that
the
district court committed “clear” or “obvious” error by applying
the § 2D1.1(b)(12) enhancement.
See Olano, 507 U.S. at 732–34.
Neither has Clark shown that the district court violated settled
law of the Supreme Court or this circuit.
F.3d at 516.
See Carthorne, 726
The sentence is affirmed.
AFFIRMED
12
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