United States v. Jeffrey Clark

388 F. App'x 513
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 6, 2010
Docket08-4496
StatusUnpublished

This text of 388 F. App'x 513 (United States v. Jeffrey Clark) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jeffrey Clark, 388 F. App'x 513 (6th Cir. 2010).

Opinion

BOGGS, Circuit Judge.

Jeffrey Clark was arrested after a kilogram of cocaine switched hands in an Ap-plebee’s parking lot. He was later convicted of conspiracy to possess and distribute cocaine, cocaine base, heroin, and marijuana, in violation of 21 U.S.C. §§ 841(a) and 846, and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a). For these crimes, Clark was sentenced to 108 months of imprisonment. In United States v. Clark, 254 Fed.Appx. 528 (6th Cir.2007), we affirmed his convictions but vacated his sentence, holding that the district court had failed to explain the factual basis for its conclusion that Clark was responsible for 3.5 to 5 kilograms of cocaine. On remand, the district court adhered to its original drug-quantity calculation but reduced Clark’s sentence to 98 months.

Clark now appeals his sentence for the second time, arguing that the district court again erred in determining that he should be held accountable for 3.5 to 5 kilograms of cocaine. Additionally, he argues that his sentence was procedurally unreasonable because the district court neglected to consider a number of the arguments in his sentencing memorandum. For the following reasons, we affirm Clark’s sentence.

I

In deciding Clark’s first appeal, we delineated the facts underlying his two convictions as follows:

On March 10 or 11, 2003, Mark Denomy, a police officer from Oregon, Ohio, on assignment with the Drug Enforcement Agency (“DEA”), received word from a jailhouse informant that Adrian Maldonado was a supplier of drugs. Undercover Agent Denomy contacted Maldonado and agreed to purchase a kilogram of cocaine at a Meijer store on March 13. Around 8:30 P.M. on that day, Den-omy met Maldonado inside Meijer, and arranged to meet in the parking lot to exchange the cocaine. Eventually, a gray Dodge Dakota pulled up alongside Denomy’s vehicle and dropped Maldonado off. Denomy could only see that a white male was driving the vehicle. Maldonado sold Denomy approximately one kilogram of cocaine, agreeing that Denomy could pay him the next day. *515 Upon receiving the cocaine, Denomy returned directly to the Oregon Police Department. Denomy continued a relationship with Maldonado, resulting in the later controlled purchase of other drugs, including a pound of black tar heroine on April 22 and five kilograms of cocaine on May 2. Maldonado was finally arrested and then charged on October 6, 2004.
Also on the 13th, Agent Mark Apple, among other officers, provided surveillance and security for Denomy. Agent Apple was employed with the Ohio Attorney General’s office, Bureau of Criminal Investigation. He determined from the Dodge Dakota’s license number that it was from a leasing company in Toledo. After Denomy had completed his transaction and left the scene, Apple observed what appeared to be a second drug transaction between the occupants of the Dakota and the occupants of another vehicle in the nearby Applebee’s parking lot. After that second transaction and with the knowledge that Maldonado lived in Fremont, Ohio, Apple and Officer St. Clair of the Ottawa County drug task force headed toward Fremont. Apple alerted the Fremont police that they were attempting to locate the Dakota. Apple, accompanied by a local Fremont police officer, eventually spotted the vehicle on State Street and “called out a lane violation to the uniformed [local] officers who made the stop.” Defendant Clark was driving. Local officers found a small amount of loose cocaine in the car with Apple observing the stop from down the street. Maldonado was released, but Clark was taken into custody. In the vehicle, the officers found a police scanner set to local police frequencies and a Floyd County, Kentucky sheriffs badge. The Floyd County sheriffs office denied knowing of Clark or Maldonado.
Adrian Maldonado testified at Clark’s trial, subsequent to Maldonado entering a guilty plea on drug/conspiraey charges but before being sentenced himself. His plea was contingent upon his further complete cooperation with authorities. Maldonado testified that he met Clark in 1999 or early 2000 through a mutual acquaintance and supplied Clark with “mostly cocaine” but also marijuana:
Q. And let’s talk about the cocaine. How often would you distribute to Mr. Clark?
A. Sometimes it would be on a weekly basis; if not, every two weeks or so.
Q. How much would you give him at a time?
A. It would range from half an ounce to a couple ounces, four ounces of cocaine.
Q. And how long did this continue on until?
A. I’d say for a period of about two years or so.
Q. So if I understand you correctly, you dealt with him from sometime in '99 to 2000 all the way to 2003; is that correct?
A. Yes.
Q. Can you estimate how much cocaine you would have sold him during that period of time?
A. Probably in excess of five keys.
Q. How about the marijuana?
A. Probably about 40 pounds.
The testimony also reveals that Maldonado would sometimes front — give drugs up front for later payment — drugs to Clark.
Regarding the events of March 13, Maldonado testified that, because his license was suspended, he had asked Clark to drive him to Elkhart, Indiana, to pick up *516 two kilograms of drugs, one kilogram of which was later sold to Agent Denomy and the other sold in the Applebee’s parking lot in accordance with Agent Apple’s observations that evening. In exchange for the ride, Maldonado agreed to forgive some of Clark’s drug debt. Maldonado also testified that Clark brought about a gram and a half of cocaine with him on the trip and used it on the way to Elkhart and back. This testimony ostensibly accounts for the cocaine residue found in Clark’s vehicle by local authorities in Fremont. On cross-examination, Maldonado estimated that he himself had distributed about 100 kilograms of cocaine in the past.
Clark was convicted by a jury on both counts.

Clark, 254 Fed.Appx. at 529-31.

At Clark’s initial sentencing hearing, one of the main issues was the quantity of drugs for which he should be held responsible:

Clark’s counsel argued that Clark should be held responsible only for the one kilogram of cocaine sold to Agent Denomy as alleged as an overt act in Count I of the indictment. This would place Clark’s base offense level at 26 under the Sentencing Guidelines. Guidelines Manual § 2D1.1(7) (Nov. 2006) (at least 500 grams but less than 2 kilograms of cocaine).

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388 F. App'x 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jeffrey-clark-ca6-2010.