UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4182
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NICOLE FELICIA CLARK, a/k/a Mo,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District Judge.
(2:14-cr-00008-MSD-DEM-1)
Argued: October 26, 2016 Decided: December 16, 2016
Before DUNCAN and AGEE, Circuit Judges, and Bruce H. HENDRICKS,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Harry Dennis Harmon, Jr., Norfolk, Virginia, for
Appellant. Darryl James Mitchell, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Dana J.
Boente, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On December 2-4, 2014, in the U.S. District Court for the
Eastern District of Virginia, Norfolk Division, defendant Nicole
Felicia Clark was tried before a jury on a four-count
superseding indictment. Count one of the superseding indictment
charged Clark with conspiracy to distribute and possession with
intent to distribute cocaine and heroin, in violation of Title
21 of the United States Code §§ 846, 841(a)(1) and (b)(1)(A).
Count two of the superseding indictment charged her with
possession with intent to distribute heroin, in violation of
Title 21 of the United States Code §§ 841(a)(1) and (b)(1)(A).
Counts three and four of the superseding indictment charged her
with possession with intent to distribute heroin, in violation
of Title 21 of the United States Code §§ 841(a)(1) and
(b)(1)(A). Clark elected to proceed pro se during the trial,
and on December 4, 2014, she was found guilty of all four
counts.
Clark continued to represent herself during the sentencing
phase of the case. The district court, inter alia, applied a
two-level sentencing enhancement for maintaining a drug-related
premises and sentenced Clark to 240 months’ imprisonment on each
of the four counts, with these terms of confinement to run
concurrently. During the sentencing phase, Clark objected to
certain paragraphs of the presentence report; however, she did
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not object to the paragraphs that pertained to the sentencing
enhancement for maintaining a drug-related premises. This
specific enhancement increased Clark’s advisory guidelines range
from 188-235 months’ imprisonment to 235-293 months.
Clark objected to the appointment of counsel to represent
her on appeal. However, she agreed to the appointment of
standby counsel. Standby counsel filed a brief in this Court
pursuant to Anders v. California, 386 U.S. 738 (1967), inter
alia, inviting the Court to review the entire record in order to
determine whether there existed any non-frivolous issue for
appeal. On March 3, 2016, the Court directed the parties to
file supplemental briefs addressing whether sufficient evidence
supported the sentencing enhancement for maintaining a drug-
related premises. After appropriate briefing and oral argument
and for the reasons stated below, we affirm the defendant’s
sentence.
I.
Clark contends that the sentencing enhancement applied
under U.S.S.G. § 2D1.1(b)(12) for maintaining a drug-related
premises was not supported by sufficient evidence.
Ordinarily, we review a district court’s application of the
sentencing guidelines de novo and its factual findings for clear
error. United States v. Strieper, 666 F.3d 288, 292 (4th Cir.
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2012). However, where a defendant fails to object in the
district court, thus denying the district court the opportunity
to consider the purported error, such a defendant’s challenge to
the application of the guidelines is reviewed for plain error on
appeal. United States v. Hargrove, 625 F.3d 170, 184 (4th Cir.
2010). Clark failed to object to the § 2D1.1(b)(12)
enhancement, and we review the application of the enhancement
for plain error accordingly.
To establish plain error, Clark must show that (1) the
district court erred, (2) the error was plain, and (3) the error
affected her substantial rights. United States v. Olano, 507
U.S. 725, 732–34 (1993). A “plain” error is one that is “clear”
or “obvious,” id. at 734, under “the settled law of the Supreme
Court or this circuit.” United States v. Carthorne, 726 F.3d
503, 516 (4th Cir. 2013) (citation omitted). In other words,
the presence of the error must be beyond reasonable dispute.
See United States v. Marcus, 560 U.S. 258, 262 (2010). Because
Clark has not shown that the district court committed plain
error, we affirm.
II.
The Sentencing Guidelines allow for a two-level enhancement
to a defendant’s offense level “[i]f the defendant maintained a
premises for the purpose of manufacturing or distributing a
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controlled substance.” U.S.S.G. § 2D1.1(b)(12). According to
the applicable commentary, “[a]mong the factors the court should
consider in determining whether the defendant ‘maintained’ the
premises are (A) whether the defendant held a possessory
interest in (e.g., owned or rented) the premises and (B) the
extent to which the defendant controlled access to, or
activities at, the premises.” Id. § 2D1.1 cmt. n. 17.
Moreover, “[m]anufacturing or distributing a controlled
substance need not be the sole purpose for which the premises
was maintained, but must be one of the defendant’s primary or
principal uses for the premises, rather than one of the
defendant’s incidental or collateral uses for the premises.”
Id.
Clark argues that the two-level sentencing enhancement was
not supported by the evidence because: (1) she only delivered
illegal drugs to the premises and stayed overnight until they
were sold; (2) she did not have a possessory interest in, or
control access to, the premises; and (3) she did not maintain
the premises for the purpose of storing, manufacturing, or
distributing illegal drugs. The government responds that the
evidence demonstrated the apartment in question served as a
warehouse and distribution hub for Clark’s and her
coconspirators’ drug-trafficking business, making the
application of the sentencing enhancement against Clark
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permissible. We agree with the government and find no plain
error in the application of the § 2D1.1(b)(12) enhancement.
III.
The premises at issue is an apartment on East Ocean View
Avenue (“Ocean View apartment” or “the apartment”) in Norfolk,
Virginia. Dedrick Leary (“Leary”), a government witness,
testified that he assumed occupancy of the Ocean View apartment
in 2012 with his associate Demetrius Lee (“Lee”). J.A. 169–71.
Leary paid rent “to the tenant who was supposed to occupy [the
apartment]” over the course of approximately one year, but was
never the leaseholder. Id. 170–71. Soon after Leary and Lee
occupied the apartment, Quincy Freeman (“Freeman”) began staying
there with Lee and began using the apartment for his drug
trafficking activities. Id. 171–72, 179. Freeman, a government
witness, acknowledged that the Ocean View apartment was used for
the storage and distribution of cocaine and heroin. Id. 100.
Freeman identified Clark as a member of his drug
distribution organization whose job it was to “drive the cocaine
from Atlanta to Virginia.” Id. 88–94. The drugs that Clark
transported to Virginia were usually stored at the Ocean View
apartment. Id. 99–100. Clark transported cocaine and heroin
from Atlanta and delivered the drugs to Freeman in Virginia “at
least five to ten times” during the conspiracy. Id. 106–07.
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Clark transported cocaine from Atlanta to Virginia in quantities
ranging from three to fifteen kilograms. Id. 109–11. She
transported heroin from Atlanta to Virginia in one to three
kilogram quantities. Id. 111–14. Most of these drugs were
delivered by Clark to Freeman directly at the Ocean View
apartment. Id. 115.
According to Freeman, after Clark, an Atlanta resident,
delivered drugs to him at the apartment she would stay there
overnight. Id. 120, 138–40. During these periods, she had
access to the entire apartment, including the back room where
the drugs and money were stored. Id. 139. Clark would
sometimes wait in Norfolk until Freeman finished selling the
drugs from her previous delivery in order to transport the full
proceeds back to Atlanta. Id. 139–40. In these instances,
Clark would remain at the Ocean View apartment for more than one
night. Id.
Leary testified that he helped Clark and coconspirators
“stretch” the cocaine at the Ocean View apartment. Id. 176–77,
186–87. This process involved adding a dietary food supplement
to the cocaine to increase its weight. Id. 176. Leary further
testified that he observed a handgun at the apartment, and Clark
later asked him and Lee where she could get a bigger gun,
because the handgun present was too small in her opinion. Id.
192–93. According to Leary, Clark made an additional delivery
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of cocaine after Freeman’s arrest and began staying at the
apartment for “extended periods.” Id.
Joseph McPherson (“McPherson”), a government witness,
testified that he purchased cocaine from Freeman at the
apartment during the conspiracy. Id. 226. According to
McPherson, after Freeman was arrested in May 2013, McPherson
went to the apartment where he saw Clark and a coconspirator.
Id. 232–33. At that time, Clark told McPherson that when
Freeman was arrested there had been a kilogram of heroin in the
apartment but it had since been stolen. Id. 233.
We find that the foregoing constitutes sufficient evidence
to support application of the § 2D1.1(b)(12) enhancement under
plain error review. Certainly, the evidence outlined above
establishes that “[m]anufacturing or distributing a controlled
substance . . . [was] one of [Clark’s and her coconspirators’]
primary or principal uses for the premises.” U.S.S.G. § 2D1.1
cmt n. 17. Clark argues that neither Freeman’s nor Leary’s
testimony established that she distributed drugs from the
premises. Rather, she asserts, it was Freeman, Leary, and Lee
exclusively who used the premises to store, manufacture, and
distribute controlled substances. But it is of little import
that Clark did not personally provide cocaine and heroin to mid-
level dealers and end users. Clark was an indispensable link in
Freeman’s drug distribution chain, and the conduct of which she
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was found guilty played an integral part in establishing the
principal use for the premises.
The issue of whether Clark “maintained” the premises is a
close call under the guidance provided in the commentary.
Courts are instructed to consider “whether the defendant held a
possessory interest” in the premises and “the extent to which
the defendant controlled” access and activities therein, as
“[a]mong the factors” relevant to the determination. See id.
The Seventh Circuit described the related inquiry with regard to
maintaining a drug-involved premises in violation of 21 U.S.C. §
856 in this way: “[A]n individual ‘maintains’ a drug house if he
owns or rents premises, or exercises control over them, and for
a sustained period of time, uses those premises to manufacture,
store, or sell drugs, or directs others to those premises to
obtain drugs.” United States v. Acosta, 534 F.3d 574, 591 (7th
Cir. 2008).
In this case, Clark did not own or rent the premises, thus
eliminating the typical examples of a possessory interest in the
apartment. However, there is evidence that she stayed overnight
at the Ocean View apartment regularly and had full access to the
apartment when she stayed there, including the portion of the
apartment that was used to store large quantities of drugs and
money. Moreover, Clark had access to a firearm at the premises,
a weapon kept for protection due to the dangerous nature of the
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activities occurring there. Thus, the issue distills to whether
plenary access equals “control” under these facts.
It appears that there is no case law within this circuit
that speaks directly to this scenario, and the parties do not
offer any. However, this Court has issued an unpublished case
that bears some relevance. In United States v. Christian, the
Court found sufficient control such that § 2D1.1(b)(12) applied
even though the defendant did not own or lease the premises at
issue, where the defendant: (1) “traveled regularly between [the
apartment] and the place where he distributed drugs”; (2) “had a
key to the apartment, and stayed there regularly but not
exclusively”; and, (3) “‘controlled’ a chest and a safe in the
master bedroom, which contained a great deal of money and drugs,
as well as two firearms.” 544 F. App’x 188, 191 (4th Cir.
2013).
Notably, in many cases where the defendant did not own or
rent the premises, but control was deemed to exist for purposes
of § 2D1.1(b)(12), the defendant had a key to the premises.
See, e.g., United States v. Renteria-Saldana, 755 F.3d 856, 859
(8th Cir.), cert. denied, 135 S. Ct. 423, 190 L. Ed. 2d 307
(2014) (finding enhancement proper where the defendant did not
own or reside at the stash house, but exercised control over it
by possessing a key to the premises, paying the utility bills,
regularly picking up drugs there, and bringing drug-sale
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proceeds there for retrieval by other conspirators); United
States v. Jones, 778 F.3d 375, 385 (1st Cir. 2015) (finding
enhancement proper where the defendant did not own or rent the
premises because the defendant’s control was demonstrated by the
facts that he had a key to the premises, came and went at will,
and slept there whenever he pleased); but see United States v.
Evans, 826 F.3d 934, 938 (7th Cir. 2016) (noting that the
defendant did not have a key, but nevertheless finding that
control existed).
In the instant matter, the record is silent as to whether
Clark had a key to the Ocean View apartment or specifically
controlled any items within the apartment. In truth, there was
no impetus for the government to offer evidence on these
particular points, whether at trial or at sentencing, because
the offenses of conviction did not require such proof and Clark
did not object to the § 2D1.1(b)(12) enhancement. The silence
of the record on these points partially limits our analysis and
demonstrates why objections in the trial court are not only
preferable as a procedural matter, but lead to a different
standard of review.
Ultimately, we find that the trial testimony describing
Clark’s regular stays at the Ocean View apartment, her plenary
access thereto, and her integral participation in the rampant
drug activity therein is enough to confirm that she “controlled”
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the premises and thus “maintained” it for drug-related purposes.
See U.S.S.G. § 2D1.1 cmt n. 17. The evidence established that
Clark: (1) delivered drugs to the apartment on multiple
occasions; (2) occupied the apartment with full knowledge of the
kilogram quantities of cocaine and heroin, drug-related cash
proceeds, and a firearm stored there; (3) received drugs at the
apartment as compensation for her role in the scheme; (4) lodged
at the apartment overnight for the exclusive purpose of
advancing the drug trafficking business; (5) along with her
coconspirators, “stretched” drugs at the apartment to improve
the profits of the drug trade; (6) sought a larger firearm in
order to aid in controlling access and activities at the
apartment; (7) made an additional delivery to the apartment and
stayed there for “extended periods” after one of her
coconspirators was arrested; and (8) devoted her activities at
the apartment solely to the drug distribution operation.
Under these circumstances, we cannot conclude that the
district court committed “clear” or “obvious” error by applying
the § 2D1.1(b)(12) enhancement. See Olano, 507 U.S. at 732–34.
Neither has Clark shown that the district court violated settled
law of the Supreme Court or this circuit. See Carthorne, 726
F.3d at 516. The sentence is affirmed.
AFFIRMED
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