USA v. Daren Clark

Filing

UNPUBLISHED OPINION FILED. [10-30256 Affirmed] Judge: PEH , Judge: JES , Judge: CH. Mandate pull date is 01/18/2011 for Appellant Daren Clark [10-30256]

USA v. Daren Clark Case: 10-30256

Document: 00511332690 Page: 1 Date Filed: 12/27/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30256 S u m m a r y Calendar December 27, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. D A R E N CLARK, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Louisiana U S D C No. 3:09-CR-63-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* D a r e n Clark is appealing his 120-month sentence imposed following his g u ilt y plea conviction to possession with intent to distribute 50 grams or more o f a substance containing cocaine base. Clark argues that his sentence was im p o s e d in violation of the Sixth Amendment because it was based on facts a b o u t his leadership role in the offense which he did not admit and were not fo u n d by a jury. The PSR reflected that Clark used Ocie Lacey's home to store h is drugs at her home in exchange for payment in the form of drugs.
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He

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 10-30256 Document: 00511332690 Page: 2 Date Filed: 12/27/2010 No. 10-30256 c o n t e n d s that because the statutory mandatory minimum sentence became the b o tt o m of his guideline sentencing range, he was sentenced under a de facto m a n d a t o r y guideline system. Following United States v. Booker, 543 U.S. 220 (2005), the Sentencing G u id e lin e s are advisory only, and "[t]he sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a g u id e lin e sentencing range." United States v. Rhine, 583 F.3d 878, 891 n.50 (5th C ir . 2009) (alteration in original) (internal quotation marks and citation o m it t e d ); United States v. Goss, 549 F.3d 1013, 1016 (5th Cir. 2008). Booker has r e m e d ie d the Sixth Amendment problems Clark identifies. See United States v. W h itfie ld , 590 F. 3d 325, 367 (5th Cir. 2009), cert. denied, 131 S. Ct. 136 (2010). T h e fact that the statutory mandatory minimum sentence became Clark's b o tt o m guidelines range sentence was not the result of the use of a de facto m a n d a t o r y guidelines system in violation of the Sixth Amendment. Clark was s u b je c t to the statutory mandatory minimum of 120 months pursuant to statute, 2 1 U.S.C. § 841(b)(1)(A)(iii), based on the drug quantity involved in the offense. Clark stipulated to the amount of drugs involved in the offense in the factual s t a t e m e n t supporting his plea. His leadership role in the criminal activity was n o t the reason that he was subject to the mandatory minimum sentence. As d is c u s s e d below his ineligibility for the application of the safety valve provision w a s based on the district court's proper application of the post-Booker advisory g u id e lin e s . It did not result in a Sixth Amendment violation. C la r k argues that, even assuming there was no Sixth Amendment v io la t io n , the evidence was not sufficient to enhance his offense level based on h is having a management or supervision role over another participant in the o ffe n s e . Section 3B1.1(c) provides for a two-level enhancement if the defendant is an organizer, leader, manager or supervisor of criminal activity, and he s u p e r v i s e s one or more participants. § 3B1.1(c); § 3B1.1, comment. (n.2). "A

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Case: 10-30256 Document: 00511332690 Page: 3 Date Filed: 12/27/2010 No. 10-30256 `p a r t ic ip a n t ' is a person who is criminally responsible for the commission of the o ffe n s e , but need not have been convicted. § 3B1.1, comment. (n.1). I n allowing her residence to be used for the manufacturing and storage of c o c a in e in exchange for cocaine, Lacey aided and abetted in the drug distribution a c t iv it y . Thus, although not charged, she was a knowing participant in the c r im in a l activity. See United States v. Messervey, 317 F.3d 457, 460-61 (5th Cir. 2 0 0 2 ). With respect to the issue of Clark's control and leadership role, the e v id e n c e showed that Clark alone had the combination to the locked safe c o n t a in in g the drugs although it was located in Lacey's home. Clark controlled t h e continuation of the operation by supplying an addict with cocaine so that he could continue using her residence as a "crack" house. I n s o fa r as Clark argues that the factual basis for his plea does not support t h e finding of a leadership role, such a finding within the meaning of § 3B1.1 e n c o m p a s s e s all relevant conduct linked to the transaction resulting in the o ffe n s e , even if it includes conduct that is outside the scope of the count of c o n v ic tio n . United States v. Reedy, 304 F.3d 358, 370 (5th Cir. 2002). The

d is t r ic t court did not clearly err in determining that Clark's offense level should b e enhanced by two levels for his leadership role in the offense. Clark argues that the enhancement of his sentence for a leadership role u n d e r § 3B1.1 was prejudicial error because it deprived him of the right to be c o n s id e r e d for a reduced sentence under the safety valve provision. Section 5 C 1 .2 (a )(4 ) provides that a defendant will not be eligible for relief under the s a fe t y valve provision if he was an organizer, leader, manager, or supervisor of o t h e r s in the offense. § 5C1.2(a)(4). Because the district court did not clearly err in determining that Clark was an organizer or leader under § 3B1.1(c), Clark w a s ineligible for a safety valve reduction. See § 5C1.2(a)(4). Therefore, Clark h a s not shown that the district court clearly error in finding him ineligible for a p p lic a t io n of the safety valve provision. See United States v. Miller, 179 F.3d 9 6 1 , 963-64 (5th Cir. 1999). Clark's sentence is AFFIRMED. 3