USCA1 Opinion
June 8, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-2041
UNITED STATES,
Appellee,
v.
BOOKER CLARK,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge] ___________________
____________________
Before
Cyr, Boudin and Lynch, Circuit Judges. ______________
____________________
Edward C. Roy, Roy & Cook on brief for appellant. _____________ __________
Sheldon Whitehouse, United States Attorney, Margaret E. Curran __________________ ___________________
and Lawrence D. Gaynor, Assistant United States Attorneys, on brief ___________________
for appellee.
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____________________
Per Curiam. Defendant-appellant Booker Clark ___________
pleaded guilty to conspiring to possess and distribute
cocaine base and to commit various firearm offenses. He
appeals his sentence on two grounds. First, he argues that
the district court erred in calculating the quantity of drugs
upon which the sentence was based. Second, Clark challenges
the two-level enhancement for his role in the offense which
the district court imposed pursuant to 3B1.1(c) of the
Sentencing Guidelines. "Because appellant's conviction
resulted from a guilty plea, we draw the facts from the
Presentence Investigation Report (PSI) and the transcript of
the sentencing hearing." United States v. Garcia, 954 F.2d ______________ ______
12, 14 (1st Cir. 1992).
A. Drug Quantity _____________
"A narcotics conspirator is responsible not only for
drugs he actually handled or saw but also for the full
quantity of drugs that he reasonably could have foreseen to
be embraced by the conspiracy he joined." United States v. De _____________ __
La Cruz, 996 F.2d 1307, 1314 (1st Cir.) (citing U.S.S.G. _______
2D1.4, 2D1.1, 1B1.3 & comment n. 1), cert. denied, ___ U.S. ____ ______
___, 114 S.Ct 356 (1993). The district court's determination
of the quantity of drugs embraced by the conspiracy and
foreseeable by the defendant will be reversed only for clear
error. De La Cruz, 996 F.2d at 1314. __________
Clark argues on appeal that he could not have reasonably
foreseen the amount of drugs involved in the August 21, 1993
transaction because there is no evidence that he had joined
the conspiracy by that date. He relies on United States v. _____________
O'Campo, 973 F.2d 1015 (1st Cir. 1992), in which this court _______
held that "the base offense level of a co-conspirator at
sentencing should reflect only the quantity of drugs he
reasonably foresees it is the object of the conspiracy to
distribute after he joins the conspiracy." Id. at 1026. ___
In this case, however, the district court expressly
found that the government had proved by a preponderance of
the evidence that Clark "was part of the conspiracy to
distribute crack cocaine on August 21, 1993 which was
accomplished by [co-conspirators Terrence and Alfred Brooker]
in Newport." Therefore, O'Campo does not apply, and the _______
only question is whether it was clear error for the district
court to conclude that Clark had joined the conspiracy by
August 21, 1993.
Less than a week passed between the August 21
transaction in Newport and the August 27 transaction in
Philadelphia. At Clark's sentencing hearing, Matthew
Horace, an undercover agent working for the Federal Bureau of
Alcohol, Tobacco and Firearms, testified that Clark
identified himself as the person in charge at the August 27
transaction. He referred to Alfred Brooker as "his man." He
determined who stayed at the train station and who went to
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get the drugs. Alfred Brooker reportedly told Horace that he
and Terrence Brooker worked for Clark in an organization that
distributed crack cocaine and guns in Philadelphia and that
he went frequently to Newport to bring crack and guns to
Newport. The district court found this testimony credible.
"At sentencing, credibility determinations are the province
of the district court." United States v. Sepulveda, 15 F.3d _____________ _________
1161, 1200 (1st Cir. 1993), cert. denied, ___ U.S. ___, 114 ____ ______
S.Ct 2714 (1994).
From this testimony, it would certainly be reasonable to
infer that Clark had joined the conspiracy prior to August
21, 1993, and that -- as the self-proclaimed person in charge
-- he could reasonably have foreseen the sale by the Brookers
of 10.9 grams of cocaine base on that date. This is not the
only reasonable inference. Horace testified that he did not
know the source of the cocaine sold on August 21, 1993 and
that the Brookers had told him that Clark was not their only
source of cocaine, at least as of September, 1993.1
Nonetheless, "where there is more than one plausible view of
the circumstances, the sentencing court's choice among
supportable alternatives cannot be clearly erroneous." United ______
States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990). The ______ ____
____________________
1. The district court found that "the Brookers branched off
after that [the August 21 transaction] in September, 1993,
and decided to freelance and find cocaine and weapons from
other sources").
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district court's inclusion of the 10.9 grams of cocaine base
sold on August 21, 1993 as "relevant conduct" when
determining Clark's guideline sentencing range was not
clearly erroneous.
B. Role in the Offense ___________________
Section 3B1.1(c) of the Guidelines provides, in relevant
part, that defendant's offense level shall be increased by
two levels if he was "an organizer, leader, manager, or
supervisor." Application of 3B1.1(c) is appropriate where
there are at least two participants in the criminal
enterprise and where "the defendant exercised control over,
or was otherwise responsible for organizing the activities
of, at least one other individual in committing the crime."
United States v. Akitoye, 923 F.2d 221, 227 (1st Cir. 1991). ______________ _______
A district court's role-in-the-offense determination is
reviewed only for clear error. Id. ___
The district court's application of 3B1.1(c) in this
case was not clearly erroneous. There is no dispute that
more than one person was involved in the offenses of
conviction. With respect to Clark's exercise of control, the
record supports the district court's finding that "the
Defendant was a leader in the offenses that are the offenses
of conviction in this case." Horace testified that Clark
announced during the August 27 transaction that he was in
charge. Alfred Brooker told Horace that the Brookers worked
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for Clark. Clark called Alfred Brooker "his man" and
directed him to stay with Horace at the train station while
Clark went to get the drugs. This evidence supports the
district court's finding that Clark exercised control over at
least one other person in committing the charged offenses.
There was no clear error.
Accordingly, appellant's sentence is affirmed pursuant ________
to Loc. R. 27.1.
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