NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-4336
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UNITED STATES OF AMERICA
v.
JAMES EDWARD CLARK,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-08-cr-00508-001)
District Judge: Honorable Robert F. Kelly
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Submitted Under Third Circuit LAR 34.1(a)
March 14, 2011
Before: RENDELL, BARRY and CHAGARES, Circuit Judges
(Opinion Filed March 24, 2011)
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Defendant James Edward Clark was convicted by a jury of one count of
attempting to manufacture and possess with intent to distribute fifty grams or more
of methamphetamine in violation of 21 U.S.C. § 846, and one count of possession
of a listed chemical with intent to manufacture methamphetamine in violation of
21 U.S.C. § 841(c)(1). Clark had agreed with a confidential informant (“CI”) to
manufacture and distribute crystal methamphetamine. Clark supplied the CI with
what Clark believed to be the necessary chemicals from which the CI, if
compliant, would have manufactured crystal methamphetamine. Later, the CI
arranged for a reverse sting, during which Clark made an exchange with the CI for
what Clark thought was crystal methamphetamine, but was not. As a result, Clark
was sentenced to 360 months on count one, and 240 months on count two, to be
served concurrently. On appeal, Clark raises multiple issues relating to his
suppression motion, his conviction, and his sentence. We will affirm.
Suppression of Statements
Clark challenges, on two separate bases, the District Court’s denial of his
motion to suppress statements he made during a custodial interrogation. Clark
contends that the Miranda warnings he received were insufficient and,
alternatively, that there was insufficient evidence for the District Court to find that
he knowingly and voluntarily waived his Miranda rights. We exercise plenary
review over the sufficiency of the warnings. United States v. Cruz, 910 F.2d 1072,
1078 (3d Cir. 1990). We also exercise plenary review over the ultimate question
of the voluntariness of a Miranda waiver, “although we review the historical facts
supporting that conclusion for clear error.” United States v. Pruden, 398 F.3d 241,
245-46 (3d Cir. 2005). The Miranda warnings given to Clark were sufficient and
there was no evidence supporting a lack of voluntariness of his waiver of rights.
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We find no merit to either of Clark’s contentions, and we affirm the District
Court’s denial of his motion to suppress.
Sufficiency of the Evidence
Clark challenges the District Court’s denial of his motion for a judgment of
acquittal based on the insufficiency of the evidence. We review for plain error
because Clark failed to renew his motion after he presented his case, and he also
failed to make a timely motion after the jury returned its verdict. United States v.
Wright-Barker, 784 F.2d 161, 170 (3d Cir. 1986). Clark argues that there is not
enough evidence to prove he intended to produce methamphetamine because the
substance he provided to the informant was incapable of being turned into
methamphetamine. Impossibility, however, is not a defense to attempt. United
States v. Everett, 700 F.2d 900, 908 (3d Cir. 1983). We find no plain error.
Admission of Other Act Evidence
Clark challenges the admission of Rule 404(b) “other act” evidence, which
revealed that he and the CI had previously participated in a methamphetamine
cook together, contending that the evidence failed to pass muster under the Rule
403 balancing test. We review a district court’s evidentiary rulings for abuse of
discretion. In re Paoli R.R. Yard PCB Litig., 113 F.3d 444, 453 (3d Cir.1997).
The District Court found that the evidence clarified the relationship between Clark
and the CI, and was relevant to Clark’s intent in dealing with the CI in relation to
the current charges. The Court gave appropriate limiting instructions to the jury.
We find no abuse of discretion.
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Sentencing
Clark levels multiple challenges to the validity of the sentence imposed by
the District Court. First, Clark challenges the Court’s authority to make factual
findings during a sentencing hearing without the aid of a jury; however, because
the sentence imposed by the Court did not exceed the statutory maximum, the
Court was free to make factual findings based on a preponderance of the
evidence.1 United States v. Grier, 475 F.3d 556, 565-66 (3d Cir. 2007) (en banc).
In the alternative, Clark challenges the sufficiency of the evidence underlying the
Court’s factual findings regarding the obstruction of justice enhancement and the
drug quantity used in calculating his offense level. We review Clark’s challenge
to the finding that he obstructed justice for plain error because he raises it for the
first time on appeal. United States v. Olano, 507 U.S. 725, 731-32 (1993). We
find no plain error.
We review Clark’s challenge to the finding of the drug quantity for clear
error. United States v. Yeung, 241 F.3d 321, 322 (3d Cir. 2001). Where there is
no drug seizure, the sentencing judge is to approximate the quantity of the
controlled substance. U.S.S.G. § 2D1.1 app. note 12. Additionally, in a reverse
sting, the agreed-upon quantity of the controlled substance more accurately
reflects the scale of the offense . Id.. Here, the evidence shows that Clark
received one package represented to be about one pound of methamphetamine,
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Under 21 U.S.C. § 841(b)(1)(A)(viii), the statutory maximum sentence Clark can
receive is life imprisonment.
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and that Clark then requested and provided “ephedrine” for two additional pounds
of methamphetamine. We find no clear error.
Finally, Clark challenges his sentence as unreasonable. We review the
sentence for both procedural and substantive reasonableness. United States v.
Tomko, 562 F.3d 558, 567 (3d Cir. 2009). “[W]e assess unreasonableness under
the abuse-of-discretion standard.” Id. at 564. Here, the District Court correctly
calculated the Guidelines range, it did not treat the guidelines as mandatory, it
considered all of the applicable § 3553(a) factors, it did not base the sentence on
clearly erroneous facts, and it adequately explained the chosen sentence. It is,
therefore, a procedurally reasonable sentence. Additionally, in the totality of the
circumstances, the imposition of a sentence at the low end of the Guidelines range
was substantively reasonable. We find that the District Court did not abuse its
discretion in imposing this sentence.
In light of the above, we will affirm Clark’s convictions and sentence.
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