United States v. Clark ( 2001 )


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  •                                                                                                                            Opinions of the United
    2001 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    1-10-2001
    United States v. Clark
    Precedential or Non-Precedential:
    Docket 99-5386
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001
    Recommended Citation
    "United States v. Clark" (2001). 2001 Decisions. Paper 5.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2001/5
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    Filed January 10, 2001
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    NO. 99-5386
    UNITED STATES OF AMERICA,
    Appellee
    v.
    MARK ANTHONY CLARK,
    Appellant
    On Appeal from the United States District Court
    for the District of New Jersey
    (Crim. No. 98-316)
    District Judge: Honorable Garrett E. Br own, Jr.
    Submitted Under Third Circuit LAR 34.1(a)
    (Argued: February 29, 2000)
    Before: ALITO and STAPLETON, Circuit Judges,
    and POLLAK,* District Judge
    (Filed: January 10, 2001)
    Thomas R. Valen (Argued)
    Gibbons, Del Deo, Dolan,
    Griffinger & Vecchione
    One Riverfront Plaza
    Newark, New Jersey 07102-5497
    Attorneys for Appellant
    _________________________________________________________________
    * Hon. Louis H. Pollak, United States District Court for the Eastern
    District of Pennsylvania, sitting by designation.
    Vincent Giblin (Argued)
    George S. Leone
    United States Attorneys Office
    970 Broad Street
    Newark, New Jersey 07102-2535
    Attorneys for Appellee
    OPINION OF THE COURT
    POLLAK, District Judge.
    Mark Clark, the appellant, pled guilty to an indictment
    charging that, in contravention of 21 U.S.C.S 841(a)(1), he
    possessed with intent to distribute more thanfifty grams of
    cocaine base ("crack"). As part of the plea agreement, Clark
    undertook to assist law enforcement officers in their efforts
    to gather evidence against and prosecute others. In
    exchange for that undertaking, the government agreed that,
    if satisfied that Clark's assistance was substantial, it
    would, at the time of Clark's sentencing, file motions1
    pursuant to U.S.S.G. S 5K1.1 and 18 U.S.C.S 3553(e)
    authorizing the District Court to impose a sentence lower
    than the otherwise applicable sentencing guideline range
    and lower than any otherwise applicable statutory
    minimum sentence. Clark provided the pr omised
    assistance. The government filed the pr omised motions. At
    sentencing it was determined that the guideline offense
    level was 29 -- signifying a guideline range of 108 to 135
    _________________________________________________________________
    1. The word "motions," in the plural, is employed here to make it clear
    that the government, in filing what in or dinary practice is a single
    document enabling a sentencing court to depart downward below both
    the guideline range and any statutory minimum in recognition of a
    defendant's cooperation, is as a formal matter to be understood as
    transmitting to the court two conceptually distinct (albeit integrally
    related) authorizations/recommendations-- one under U.S.S.G. S 5K1.1
    and the other under 18 U.S.C. S 3553(e). This conceptual distinction has
    important real-world implications, as United States v. Melendez, 
    518 U.S. 120
    (1996), affirming this court's decision, 55 F.3d (3rd Cir. 1995),
    illustrates: a government motion that invokes U.S.S.G. S 5K1.1, but not
    18 U.S.C. S 3553(e), does not authorize a sentencing court to depart
    downward below the statutory minimum.
    2
    months -- and that the statutory mandatory minimum was
    120 months. The District Court imposed a ter m of
    incarceration of 90 months.
    On appeal Clark contends that the District Court, in
    calculating an appropriate downward departure, chose as
    its base line the 120-month statutory minimum rather than
    the 108-month bottom of the guideline -- a choice resulting
    in a sentence appreciably longer than it would have been
    had the District Court calculated the downwar d departure
    from a base line of 108 months. The methodology adopted
    by the District Court in calculating the downwar d
    departure was, so Clark contends, incompatible with the
    letter and the rationale of the pertinent pr ovisions of Title
    18 and of the guidelines.
    The government supports the methodology used by the
    District Court, contending that it was in har mony with (a)
    the pertinent provisions of Title 18 and of the guidelines
    and (b) the case law construing those provisions. Further,
    the government points out that at sentencing Clark
    interposed no objection to the District Court's methodology
    and, therefore, so the government ar gues, the methodology
    is not assailable on appeal unless it is properly
    characterizable not merely as error but as"plain" error --
    and this, the government insists, it assur edly was not.
    Finally, the government argues that, even supposing there
    had been plain error, whether the District Court used 120
    months or 108 months as its point of departur e made no
    difference with respect to the sentence actually imposed: as
    the government reads the recor d at sentencing, the District
    Court determined that a two-level downwar d departure was
    appropriate, and, since both 120 months and 108 months
    fall within offense level 29's guideline range, a two-level
    downward departure from either 120 months or 108
    months would have brought the court to of fense level 27,
    and a consequent range of 87 to 108 months, within which
    range the court selected 90 months as the pr oper sentence.
    In his reply brief, Clark argues that"plain error"
    jurisprudence is inapplicable. He contends that the
    asserted error of the District Court was not one that he can
    properly be required to have objected to at the sentencing
    hearing because "the issue . . . did not arise until after the
    3
    district court had granted the government's[downward
    departure] motions . . . and imposed sentence."
    I. The Proceedings in the District Court
    At Clark's sentencing the District Court deter mined that,
    but for the government's submission of downwar d
    departure motions under 18 U.S.C. S 3553(e) and U.S.S.G.
    S 5K1.1, it would have been (1) requir ed by statute (21
    U.S.C. S 841(b)(1)(A)(iii)) to impose a ter m of incarceration of
    at least 120 months, and (2) required by the guidelines
    applicable to a Criminal History Category III of fender with
    an offense level of 29 to impose a ter m of incarceration of
    between 108 and 135 months. In the absence of the
    government's downward departure motions, compliance
    with both of these constraints would have meant that the
    District Court would have been required to sentence Clark
    to a term of incarceration of between 120 and 135 months.
    The District Court put it this way:
    All right. The warrants [sic] 2 for the government's
    downward departure motion, I, of course would be
    limited to 10 years, make it 120 and 135, because of
    the government's downward departur e motion, I am
    not so bound and I can go below the 120 months or I
    can even go below the level 29.
    Immediately thereafter the District Court "committed
    [Clark] to the custody of the Bureau of Prisons for a term
    of 90 months." After detailing the other aspects of the
    sentence (five years of post-custody supervised r elease;
    $750 fine; $100 special assessment), the District Court
    advised Clark of his right to appeal, and then said:
    The departure that I had reached is a substantial one.
    I have gone below the mandatory minimum as stated
    and in addition, gone up [sic] two levels, at the bottom
    of that range, approximately to a 90 month instead of
    120 months.
    Thereafter, following an expression of "hope that the
    defendant is correct in saying he'll tur n his life around" on
    release, the court inquired:
    _________________________________________________________________
    2. The phrase "The warrants" was pr esumably an error in transcription.
    4
    Anything further?
    Defense counsel responded:
    Your Honor, will the Court be making a
    recommendation as to Fairton and the drug r esidential
    treatment program?
    The court replied: "I said that I would so r ecommend and
    I will." After defense counsel said, "Thank you, Judge," the
    court inquired again: "Anything further? Government?"
    Government counsel said: "Nothing, Y our Honor." The court
    then observed: "Okay. I hope Mr. Clark is able to turn his
    life around. He certainly has the opportunity to do so." And
    the sentencing hearing ended.
    II. The Contentions of the Parties
    Clark, in the Summary of Argument in his opening brief
    on appeal, outlines his position as follows:
    In contrast to the approach followed by the district
    court, the Sentencing Guidelines provide that the
    granting of a motion under 18 U.S.C S 3553(e)"waives"
    the statutory minimum. Thereafter, sentence must be
    imposed based upon the guideline range without
    reference to that minimum term. Thus, where the
    government has moved for a downward departure
    under U.S.S.G. 5K1.1 in addition to having moved to
    waive a statutory minimum, the starting point for
    calculating the 5K1.1 departure should be the bottom
    of the guideline range. This approach is r equired by the
    relevant statutory and guidelines provisions, by the
    United States Supreme Court's holding in United States
    v. Melendez, 
    518 U.S. 120
    (1996),3 and by the
    structure and goals of the guidelines as expr essed by
    the Sentencing Commission. As the district court
    misapplied the guidelines by calculating the departure
    from the statutory minimum term, the Court should
    remand this case with instructions that the court
    resentence the defendant by calculating the downward
    _________________________________________________________________
    3. As to the holding in Melendez, see footnote 
    1, supra
    .
    5
    departure under U.S.S.G. S 5K1.1 fr om the applicable
    guideline range of 108 to 135 months.4
    The government's response to Clark's ar guments is two-
    fold:
    First: The government contends that, contrary to Clark's
    argument, the pertinent statutory and guidelines provisions
    do not authorize -- much less require-- a sentencing
    court, when fashioning a downward departur e pursuant to
    government motions under 18 U.S.C. S 3553(e) and
    U.S.S.G. S 5K1.1, to "waive" the statutory minimum as the
    point of departure when that statutory minimum is higher
    than the bottom of the applicable guideline range but lower
    than the top of the guideline range. In such a situation --
    of which the case at bar, with a statutory minimum of 120
    months, and a guideline range of 108 to 135 months, is an
    example -- the sentencing court is, according to the
    government, required by U.S.S.G.S 5G.1(c)(2),5 to narrow
    the guideline range to the segment between the statutory
    minimum and the top of the guideline range (in the case at
    bar, 120 to 135 months) and then calculate any downward
    departure with that narrowed guideline range as its point of
    departure. The government further contends that its
    reading of the pertinent statutory and guidelines provisions
    is consonant with the approach taken in United States v.
    _________________________________________________________________
    4. The argument advanced by Clark is somewhat amplified in footnote 7,
    infra.
    5. U.S.S.G. S 5G1.1. Sentencing on a Single Count of Conviction
    (a) Where the statutorily authorized maximum sentence is less than
    the minimum of the applicable guideline range, the statutorily
    authorized maximum sentence shall be the guideline sentence.
    (b) Where a statutorily required minimum sentence is greater than
    the maximum of the applicable guideline range, the statutorily
    required minimum sentence shall be the guideline sentence.
    (c) In any other case, the sentence may be imposed at any point
    within the applicable guideline range, provided that the sentence -
    -
    (1) is not greater than the statutorily authorized maximum
    sentence, and
    (2) is not less than any statutorily requir ed minimum sentence.
    6
    Hayes, 
    5 F.3d 292
    (7th Cir. 1993), and followed in United
    States v. Head, 
    178 F.3d 1205
    (11th Cir .), reh'g and reh'g
    en banc denied, ___ F.3d ___ (11th Cir. 1999).
    Second: The government contends, in the alternative,
    that, not having presented to the District Court his
    objection to the District Court's mode of calculating the
    downward departure, Clark can only complain on appeal if
    the District Court's action was "plain err or." Even if the
    District Court's action be deemed "error"-- which the
    government denies -- it cannot, in the gover nment's view,
    be regarded as "plain error." And even a "plain error," the
    government further contends, is not subject to appellate
    remediation unless it is one that "must have affected the
    outcome of the district court proceedings," United States v.
    Olano, 
    507 U.S. 725
    , 734 (1993), which this asserted error
    -- so the government contends -- has not done.
    III. Discussion
    Counsel for appellant Clark did not advise the District
    Court, when the court announced the 90-month sentence,
    that counsel understood the court to have taken 120
    months as the starting point for its downwar d departure
    calculations and that the proper starting point was 108
    months. Rule 52(b) of the Federal Rules of Civil Pr ocedure
    instructs that: "Plain errors or defects af fecting substantial
    rights may be noticed although they were not br ought to
    the attention of the court." But the Supr eme Court has
    instructed that: "At a minimum, a court of appeals cannot
    correct an error pursuant to Rule 52(b) unless the error is
    clear under current law." United States v. Olano, 
    507 U.S. 725
    , 734 (1993).
    Clark contends that "it is clear that the district court
    plainly misapplied 18 U.S.C. S 3553(e) and the guidelines
    . . ." However, the clarity contended for by Clark is not
    reflected in the relevant case law. In 1993, six years before
    Clark's sentencing, the Seventh Circuit had considered a
    cognate challenge to a sentencing court's use of the
    statutory mandatory minimum, rather than the guideline
    range, as the point of departure for calculation of a
    downward departure. United States v. Hayes, 
    5 F.3d 292
    (7th Cir. 1993). The circumstances in Hayes's case were
    7
    much like those in Clark's, except that the gover nment only
    moved under 18 U.S.C. S 3553(e) -- not under U.S.S.G.
    S 5K1.1 as well -- and the statutory mandatory minimum of
    60 months was higher than the top of the guidelines range.
    The Seventh Circuit said this:
    After the hearing, the district court granted the
    government's motion and reduced Hayes' sentence
    from 60 to 47 months. The court calculated its
    downward departure by working backwar d from Hayes'
    60-month sentence. The court first observed that the
    lowest United States Sentencing Guidelines (the
    "Guidelines") offense level for which a 60-month
    sentence could have been given is 24. Departing
    downward two levels for Hayes' substantial assistance
    results in an offense level of 22, which carries a
    sentencing range of 41 to 51 months. Hayes' 47-month
    sentence falls within that range. Hayes appeals his
    reduced sentence, arguing that the method used by the
    district court to calculate his downward departure
    violates 18 U.S.C. S 3553(e). . . .
    Hayes argues that when a district court departs
    below the mandatory minimum sentence pursuant to
    18 U.S.C. S 3553(e), the resulting sentence must be
    within the Guidelines range appropriate for the offense
    and the offender's criminal history category. Because
    his original offense level was 16 and his criminal
    history category is I, Hayes contends that the district
    court was constrained by the resulting 21 to 27 month
    range. Hayes bases his argument on the portion of
    S 3553(e) that states: "Such sentence shall be imposed
    in accordance with the guidelines and policy
    statements issued by the Sentencing Commission
    . . . ." 18 U.S.C. S 3553(e) (referring to sentences
    imposed below the statutory minimum for substantial
    assistance). Hayes' argument is unavailing, however,
    because his 47-month sentence was imposed in
    accordance with the guidelines.
    "Where a statutorily requir ed minimum sentence is
    greater than the maximum of the applicable guideline
    range, the statutorily required minimum sentence shall
    be the guideline sentence." U.S.S.G. S 5G1.1(b)
    8
    (emphasis supplied). Therefore, when the district court
    originally sentenced Hayes, the statutory mandatory
    minimum sentence of 60 months became Hayes'
    Guidelines range, albeit a narrow one. The 21 to 27
    range no longer applied. The appropriate starting point
    for Hayes' downward departure was 60 months, and
    the district court properly began 
    there. 5 F.3d at 294-95
    (footnote omitted).
    In June of 1999, a month after Clark was sentenced, the
    Eleventh Circuit, in United States v. Head , 
    178 F.3d 1205
    (11th Cir. 1999), considered a case closely similar to Hayes
    -- except that, as in the case at bar, the government filed
    motions both under 18 U.S.C. S 3553(e) and under U.S.S.G.
    S 5K1.1 -- and found the Hayes analysis persuasive.
    Clark argues that the Hayes-Head appr oach is "legally
    erroneous, and should not command this Court's
    adherence." But Clark has not pointed to any decisions that
    reject, or substantially diverge from, Hayes and/or Head.6
    Notwithstanding the dearth of supportive case law,
    Clark's challenge to Hayes-Head (capsulized in Clark's
    Summary of Argument, quoted in the 
    text, supra
    , at
    footnote 4, and summarized in somewhat greater detail
    here in the margin, at footnote 7), whether or not ultimately
    found persuasive, must be acknowledged to be at least a
    plausible line of argument.7 And so it is within the range of
    _________________________________________________________________
    6. Cf. United States v. Schaffer, 
    110 F.3d 530
    (8th Cir, 1997), and
    United
    States v. Aponte, 
    36 F.3d 1050
    (11th Cir . 1994).
    7. In summary, the main line of Clark's ar gument runs as follows:
    (1) 18 U.S.C. S3553(e) instructs that, following the filing by the
    government of a motion authorizing the sentencing court to "impose
    a sentence below a level established by statute as a minimum
    sentence, . . . sentence shall be imposed in accor dance with the
    guidelines and policy statements issued by the Sentencing
    Commission pursuant to" 28 U.S.C. S 994.
    (2) The Sentencing Commission's Application Note 7 following
    U.S.S.G. S 2D1.1 (the guideline applicable to Clark) provides that:
    Where a mandatory (statutory) minimum sentence applies, this
    mandatory minimum sentence may be "waived" and a lower
    9
    possibility that, as and when the issue comes to this court
    in a form requiring its resolution, this court will not
    subscribe to the approach taken by the Seventh and
    Eleventh Circuits. Alternatively, it is possible that the
    Supreme Court, if it has occasion to examine the issue, will
    not be persuaded that the Hayes-Head analysis has merit.
    However, Clark's difficulty on this appeal is that we can
    find no basis for concluding that the methodology employed
    by the District Court in sentencing Clark -- a methodology
    in conformity with Hayes-Head -- was at the time of
    sentencing, or is today, an "error [which was] clear under
    current law." 
    Olano, 507 U.S. at 534
    .
    Clark argues in his reply brief that"plain error"
    jurisprudence is inapplicable to this case, which he
    describes as one in which "the issue presented on appeal
    did not arise until after the district court had granted the
    government's motions under 18 U.S.C. S 3553(e) and
    U.S.S.G. S 5K1.1 and imposed sentence." According to
    Clark, "under such circumstances a party is not required to
    raise an objection before the sentencing court." To support
    this argument, Clark relies on United States v. Leung, 
    40 F. 3d
    577 (2d Cir. 1994). In Leung, the Second Circuit,
    _________________________________________________________________
    sentence imposed (including a sentence below the applicable
    guideline range), as provided in 28 U.S.C.S 994(n), by reason of
    a defendant's "substantial assistance in the investigation or
    prosecution of another person who has committed an offense."
    (3) In Melendez v. United States, 
    518 U.S. 120
    (1996), the Supreme
    Court held that the government's filing of a motion under U.S.S.G.
    S 5K1.1, authorizing the imposition of a sentence below the
    guidelines, does not operate to authorize a sentence below a
    mandatory statutory minimum. The latter authorityflows only from
    the government's filing of a motion under 18 U.S.C. S 3553(e). The
    Melendez Court's holding appears to have accepted as its premise
    that the statutory S 3553(e) motion and the guidelines S 5K1.1
    motion are independent of one another, constituting a "binary"
    rather than a "unitary" system. 
    See 518 U.S. at 125-27
    .
    Accordingly,
    Clark argues, the Melendez affir mation of the separateness of the
    two motions confirms Clark's contention that"once the court has
    granted a government motion under 18 U.S.C.S 3553(e) and ``waived'
    the statutory minimum, that minimum can not serve as the starting
    point for calculating a departure under S 5K1.1."
    10
    speaking through Judge (then-Chief Judge) Newman, did
    remand for resentencing because of certain statements the
    sentencing judge made in the course of denying a
    downward departure and giving his rationale for the
    sentence imposed -- statements to which defense counsel
    had not registered any contemporaneous objection. As
    Clark observes, Judge Newman described the situation
    presented in Leung as "not comparable to one where a
    defendant fails to object to factual statements in a
    presentencing report . . . or fails to object to a proposed
    legal ruling regarding an application of the Sentencing
    Guidelines . . . ." But the situation presented in Leung was
    one which is also not comparable to the situation pr esented
    in the case at bar. In Leung, the sentencing judge, (a) in
    denying a downward departure and, then, (b), in explaining
    the number of months of incarceration he found
    appropriate within the applicable guideline range, had
    referred to the defendant's Canadian citizenship and
    Chinese ancestry in a manner from which, the Second
    Circuit opined, "a reasonable observer , hearing or reading
    the remarks, might infer, however incorr ectly, that Leung's
    ethnicity and alien status played a role in determining her
    sentence." 
    40 F. 3d
    at 586-87. Given that unusual set of
    circumstances, the Leung court felt that procedural
    conventions calling for contemporaneous objections to a
    sentencing judge's actions were without application. The
    court put the matter this way:
    The Government argues that we should not reach the
    merits of this issue because Leung failed to object to
    the contested remarks at the sentencing hearing.
    However, Leung did not forfeit her right to challenge
    the sentencing remarks on appeal. The first r emark
    was somewhat ambiguous, and a defendant is
    understandably reluctant to suggest to a judge that an
    ambiguous remark reveals bias just as the judge is
    about to select a sentence. The second remark, which
    referred to Leung's ethnicity and which could be
    thought to give meaning to the first remark, occurred
    after the sentence had been imposed. This situation is
    not comparable to one where a defendant fails to object
    to factual statements in a presentencing r eport, see
    United States v. Feigenbaum, 
    962 F.2d 230
    , 233 (2d
    11
    cir. 1992), or fails to object to a pr oposed legal ruling
    regarding an application of the Sentencing Guidelines,
    see United States v. Baez, 
    944 F.2d 88
    , 90 (2d Cir.
    1991). In a variety of circumstances in which a party
    could not reasonably have been expected to raise a
    contemporaneous objection at a sentencing hearing we
    have allowed the objection to be raised for thefirst time
    on 
    appeal. 40 F.3d at 586
    .
    Clark's case stands in marked contrast to Leung. In
    Clark's case, the problem posed by the sentencing judge's
    statement was the correctness of a "legal ruling regarding
    an application of the Sentencing Guidelines." And, given
    that Hayes had been decided more thanfive years, and
    Melendez nearly three years, before the day of Clark's
    sentencing, the problem was part of the overar ching
    sentencing jurisprudence and hence not a problem about
    which "a party could not reasonably have been expected to
    raise a contemporaneous objection at a sentencing
    hearing." 
    Leung, 40 F.3d at 586
    . Moreover, the objection to
    be raised in Clark's case went simply to a question of law;
    it was not one which, as in Leung -- in addition to being
    occasioned by an observation from the bench not readily to
    have been anticipated -- was infused with a sensitivity that
    might well have rendered the potentially objecting party
    "understandably reluctant" (to use the Second Circuit's apt
    phrase) to interpose a challenge.
    Conclusion
    For the foregoing reasons, the judgment of the District
    Court will be affirmed.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    12