NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 28, 2009
Decided February 6, 2009
Before
WILLIAM J. BAUER, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐1616
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 05 CR 271
MARK CLARK, also known as
HAMMER, also known as Amy J. St. Eve,
PRINCE BLACK, Judge.
Defendant‐Appellant.
O R D E R
Mark Clark was charged with distributing crack cocaine, 21 U.S.C. § 841(a)(1), after a five‐
year investigation into his drug‐trafficking activities as a high‐ranking member of the Gangster
Disciples. Throughout 2004 a confidential source working with the Drug Enforcement
Administration made several purchases of crack from Clark. Clark pleaded guilty to one count
of distributing crack and was sentenced to 360 months, the low end of the imprisonment range.
On appeal Clark’s only argument is that the district court erroneously applied a two‐level
upward adjustment for possession of a firearm during the offense. See U.S.S.G § 2D1.1(b)(1).
Clark argues that the district court could not reasonably rely on the evidence put forth by the
No. 07‐1616 Page 2
government—testimony of a “stale event” and “summaries of hearsay statements”—to
conclude that he possessed a firearm during the drug distribution.
To obtain an increase under § 2D1.1(b)(1), the government need only prove by a
preponderance of the evidence that the defendant possessed a gun or other dangerous weapon
while committing the offense of conviction or conduct relevant to that offense. United States
v. Rollins, 544 F.3d 820, 837 (7th Cir. 2008); United States v. Womack, 496 F.3d 791, 797 (7th Cir.
2007); United States v. Bothun, 424 F.3d 582, 586 (7th Cir. 2005). If the government proves
possession, the increase applies unless the defendant demonstrates that a connection between
the weapon and the offense was “clearly improbable.” Womack, 496 F.3d at 798; United States
v. Olson, 450 F.3d 655, 684 (7th Cir. 2006); Bothun, 424 F.3d at 586. In applying § 2D1.1(b)(1) the
sentencing court may consider evidence that would be inadmissible at trial, including hearsay,
so long as it bears sufficient indicia of reliability. United States v. Smith, 280 F.3d 807, 810 (7th
Cir. 2002); United States v. Jones, 371 F.3d 363, 369 (7th Cir. 2004). This court reviews
applications of § 2D1.1(b)(1) for clear error, United States v. Souffront, 338 F.3d 809, 832 (7th Cir.
2003), and reviews determinations about the reliability of sentencing evidence for an abuse of
discretion, Smith, 280 F.3d at 810.
At Clark’s sentencing hearing, Chicago police officer Sergio Velazquez testified that in 2001
he responded to a call about a man with a gun and found Clark, who matched the description
of the man from the call. Officer Velazquez did not find a gun on Clark but arrested him based
on a traffic warrant. After Velazquez administered Miranda warnings, Clark bragged that
Velazquez “had caught him on a bad day” because he “usually had a pistol on him.” The
government also submitted the written plea agreement executed by Lazarus Gonzales, the third
defendant named in the indictment in this case, in which he swore that he carried a gun when
he served as security in Clark’s drug organization and knew Clark to possess guns in relation
to his drug activities. Finally, the government submitted statements from three cooperating
sources—CS‐4, CS‐5, and CS‐6—who all confirmed Clark’s possession of firearms. CS‐4 stated
that Clark had a storage unit containing a variety of guns; CS‐5 stated that he saw Clark carry
a handgun in his waistband; and CS‐6 stated that he saw numerous guns in the apartment out
of which Clark ran his drug‐distribution operation and saw Clark with a gun on several
occasions.
As noted, the government did not need to show that Clark possessed a dangerous weapon
during the specific drug transaction for which he was convicted; the increase applies if he
possessed a gun during any relevant conduct. Rollins, 544 F.3d at 837; Womack, 496 F.3d at 797.
In fact, since Clark was not working alone, the government did not even have to prove it was
Clark who possessed a weapon: codefendant Gonzales’s admission that he carried a gun while
protecting Clark was, by itself, enough to justify applying § 2D1.1(b)(1) because Clark’s relevant
No. 07‐1616 Page 3
conduct included the reasonably foreseeable acts of others committed in furtherance of jointly
undertaken criminal activity. See U.S.S.G. § 1B1.3; United States v. Emerson, 501 F.3d 804, 815
(7th Cir. 2007); United States v. Luster, 480 F.3d 551, 557‐58 (7th Cir. 2007); United States v.
Hernandez, 330 F.3d 964, 991 (7th Cir. 2003). That aside, the cooperating witnesses’ statements
and Officer Velazquez’s testimony independently established that Clark possessed guns during
his relevant conduct. United States v. Farmer, 543 F.3d 363, 371‐72 (7th Cir. 2008) (upholding the
district court’s reliance on co‐conspirator’s statements in applying § 2D1.1(b)(1)); United States
v. Morris, 498 F.3d 634, 645 (7th Cir. 2007) (holding that cooperating witness’s testimony that
defendant handed him a gun after being stopped by police was ample evidence to support
increase under § 2D1.1(b)(1)).
Clark, moreover, has never even asserted—and certainly never offered any evidence—that
a connection between the guns he possessed and his drug trafficking was clearly improbable.
See United States v. Acosta, 534 F.3d 574, 589‐90 (7th Cir. 2008) (holding that defendant failed to
meet burden of disproving connection between gun and drug conspiracy where he presented
no evidence); United States v. Anderson, 452 F.3d 87, 92 (1st Cir. 2006) (explaining that
defendant’s assertion that he bought gun after home invasions did not establish absence of
connection between gun and crime). Thus, Clark has failed to demonstrate any error in the
application of § 2D1.1(b)(1).
Accordingly, we AFFIRM Clark’s conviction and sentence.