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P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 99-5386

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Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

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### R e c omme nde d C it a t ion

" U nit e d S t a t e s v

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. e du/thir dc ir c uit_2001/5Filed January 10, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 99-5386

UNITED STATES OF AMERICA, Appellee

v.

MARK ANTHONY CLARK, Appellant

On Appeal from the United States District Court for the District of New Jersey (Crim. No. 98-316) District Judge: Honorable Garrett E. Br own, Jr.

Submitted Under Third Circuit LAR 34.1(a) (Argued: February 29, 2000)

Before: ALITO and STAPLETON, Circuit Judges, and POLLAK,* District Judge

(Filed: January 10, 2001)

Thomas R. Valen (Argued) Gibbons, Del Deo, Dolan, Griffinger & Vecchione
One Riverfront Plaza Newark, New Jersey 07102-5497 Attorneys for Appellant

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* Hon. Louis H. Pollak, United States District Cour t for the Eastern District of Pennsylvania, sitting by designation.Vincent Giblin (Argued)

George S. Leone United States Attorneys Office

970 Broad Street Newark, New Jersey 07102-2535 Attorneys for Appellee

OPINION OF THE COURT

POLLAK, District Judge.

Mark Clark, the appellant, pled guilty to an indict ment charging that, in contravention of 21 U.S.C.S 841(a )(1), he possessed with intent to distribute more thanfifty grams of cocaine base ("crack"). As part of the plea agreeme nt, Clark
undertook to assist law enforcement officers in the ir efforts to gather evidence against and prosecute others. In exchange for that undertaking, the government agree d that,
if satisfied that Clark's assistance was substantia l, it would, at the time of Clark's sentencing, file moti ons1 pursuant to U.S.S.G. S 5K1.1 and 18 U.S.C.S 3553(e) authorizing the District Court to impose a sentence lower than the otherwise applicable sentencing guideline range and lower than any otherwise applicable statutory minimum sentence. Clark provided the pr omised assistance. The government filed the pr omised moti ons. At sentencing it was determined that the guideline off ense level was 29 -- signifying a guideline range of 108 to 135

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1. The word "motions," in the plural, is employed h ere to make it clear that the government, in filing what in or dinary pr actice is a single document enabling a sentencing court to depart down ward below both the guideline range and any statutory minimum in re cognition of a defendant's cooperation, is as a formal matter to b e understood as transmitting to the court two conceptually distinct (albeit integrally related) authorizations/recommendations-- one under U.S.S.G. S 5K1.1 and the other under 18 U.S.C. S 3553(e). This conce ptual distinction has important real-world implications, as United States v. Melendez, 518 U.S. 120 (1996), affirming this court's decision, 55 F.3 d (3rd Cir. 1995), illustrates: a government motion that invokes U.S.S .G. S 5K1.1, but not 18 U.S.C. S 3553(e), does not authorize a sentencin g court to depart downward below the statutory minimum.

2months -- and that the statutory mandatory minimum was

120 months. The District Court imposed a ter m of
incarceration of 90 months.

On appeal Clark contends that the District Court, i n calculating an appropriate downward departure, chos e as its base line the 120-month statutory minimum rathe r than the 108-month bottom of the guideline -- a choice r esulting in a sentence appreciably longer than it would have been had the District Court calculated the downwar d dep arture from a base line of 108 months. The methodology ado pted by the District Court in calculating the downwar d departure was, so Clark contends, incompatible with the letter and the rationale of the pertinent pr ovisio ns of Title 18 and of the guidelines.

The government supports the methodology used by the District Court, contending that it was in har mony with (a) the pertinent provisions of Title 18 and of the gui delines and (b) the case law construing those provisions. F urther, the government points out that at sentencing Clark interposed no objection to the District Court's met hodology and, therefore, so the government ar gues, the meth odology is not assailable on appeal unless it is properly characterizable not merely as error but as"plain" e rror -- and this, the government insists, it assur edly was not. Finally, the government argues that, even supposing there had been plain error, whether the District Court us ed 120 months or 108 months as its point of departur e mad e no difference with respect to the sentence actually im posed: as the government reads the recor d at sentencing, the District Court determined that a two-level downwar d departu re was appropriate, and, since both 120 months and 108 mon ths fall within offense level 29's guideline range, a t wo-level downward departure from either 120 months or 108 months would have brought the court to of fense lev el 27, and a consequent range of 87 to 108 months, within which range the court selected 90 months as the pr oper s entence.

In his reply brief, Clark argues that"plain error" jurisprudence is inapplicable. He contends that the
asserted error of the District Court was not one th at he can properly be required to have objected to at the sen tencing hearing because "the issue . . . did not arise unti l after the

3district court had granted the government's[downwar d

departure] motions . . . and imposed sentence."

I. The Proceedings in the District Court

At Clark's sentencing the District Court deter mine d that, but for the government's submission of downwar d departure motions under 18 U.S.C. S 3553(e) and U.S .S.G. S 5K1.1, it would have been (1) requir ed by statut e (21 U.S.C. S 841(b)(1)(A)(iii)) to impose a ter m of in carceration of at least 120 months, and (2) required by the guidel ines applicable to a Criminal History Category III of fe nder with an offense level of 29 to impose a ter m of incarce ration of

between 108 and 135 months. In the absence of the government's downward departure motions, compliance
with both of these constraints would have meant tha t the District Court would have been required to sentence Clark
to a term of incarceration of between 120 and 135 m onths. The District Court put it this way:

All right. The warrants [sic] 2 for the gov ernment's downward departure motion, I, of course woul d be limited to 10 years, make it 120 and 135, be cause of the government's downward departur e motion, I am not so bound and I can go below the 120 mont hs or I can even go below the level 29.

Immediately thereafter the District Court "committe d [Clark] to the custody of the Bureau of Prisons for a term of 90 months." After detailing the other aspects of the sentence (five years of post-custody supervised r e lease; $750 fine; $100 special assessment), the District C ourt advised Clark of his right to appeal, and then said :

The departure that I had reached is a substa ntial one. I have gone below the mandatory minimum as s tated and in addition, gone up [sic] two levels, a t the bottom of that range, approximately to a 90 month i nstead of
120 months.

Thereafter, following an expression of "hope that t he defendant is correct in saying he'll tur n his life around" on release, the court inquired:

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2. The phrase "The warrants" was pr esumably an err or in transcription.

4Anything further?

Defense counsel responded: Your Honor, will the Court be making a recommendation as to Fairton and the drug r esidential treatment program?

The court replied: "I said that I would so r ecomme nd and I will." After defense counsel said, "Thank you, Ju dge," the court inquired again: "Anything further? Government ?" Government counsel said: "Nothing, Y our Honor." Th e court then observed: "Okay. I hope Mr. Clark is able to t urn his life around. He certainly has the opportunity to do so." And the sentencing hearing ended.

II. The Contentions of the Parties

Clark, in the Summary of Argument in his opening br ief on appeal, outlines his position as follows:

In contrast to the approach followed by the district court, the Sentencing Guidelines provide tha t the granting of a motion under 18 U.S.C S 3553(e )"waives" the statutory minimum. Thereafter, sentence must be imposed based upon the guideline range witho ut reference to that minimum term. Thus, where the government has moved for a downward departur e under U.S.S.G. 5K1.1 in addition to having m oved to waive a statutory minimum, the starting poin t for calculating the 5K1.1 departure should be th e bottom of the guideline range. This approach is r e quired by the relevant statutory and guidelines provisions , by the United States Supreme Court's holding in Uni ted States v. Melendez, 518 U.S. 120 (1996),3 and by t he structure and goals of the guidelines as exp r essed by the Sentencing Commission. As the district c ourt misapplied the guidelines by calculating the departure from the statutory minimum term, the Court s hould
remand this case with instructions that the court resentence the defendant by calculating the downward

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3. As to the holding in Melendez, see footnote 1, s upra.

5departure under U.S.S.G. S 5K1.1 fr om the a pplicable

guideline range of 108 to 135 months.4

The government's response to Clark's ar guments is twofold:

First: The government contends that, contrary to Cl ark's argument, the pertinent statutory and guidelines pr ovisions do not authorize -- much less require-- a sentencin g court, when fashioning a downward departur e pursua nt to government motions under 18 U.S.C. S 3553(e) and U.S.S.G. S 5K1.1, to "waive" the statutory minimum as the point of departure when that statutory minimum is h igher than the bottom of the applicable guideline range b ut lower than the top of the guideline range. In such a situ ation -- of which the case at bar, with a statutory minimum of 120 months, and a guideline range of 108 to 135 months, is an example -- the sentencing court is, according to th e government, required by U.S.S.G.S 5G.1(c)(2),5 to n arrow the guideline range to the segment between the stat utory minimum and the top of the guideline range (in the case at bar, 120 to 135 months) and then calculate any down ward departure with that narrowed guideline range as its point of departure. The government further contends that its reading of the pertinent statutory and guidelines p rovisions is consonant with the approach taken in United Stat es v.

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4. The argument advanced by Clark is somewhat ampli fied in footnote 7,
infra.

5. U.S.S.G. S 5G1.1. Sentencing on a Single Count o f Conviction

(a) Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline rang e, the statutorily authorized maximum sentence shall be the gui deline sentence.

(b) Where a statutorily required minimum sen tence is greater than the maximum of the applicable guideline rang e, the statutorily required minimum sentence shall be the guide line sentence.

(c) In any other case, the sentence may be i mposed at any point within the applicable guideline range, provi ded that the sentence -

-

(1) is not greater than the statutorily auth orized maximum sentence, and

(2) is not less than any statutorily requir ed minimum sentence.

6Hayes, 5 F. 3d 292 (7th Cir. 1993), and followed in United

States v. Head, 178 F. 3d 1205 (11th Cir .), reh'g and reh'g en banc denied, ___ F.3d ___ (11th Cir. 1999).

Second: The government contends, in the alternative
, that, not having presented to the District Court hi s objection to the District Court's mode of calculati ng the downward departure, Clark can only complain on appe al if the District Court's action was "plain err or." Eve n if the
District Court's action be deemed "error"-- which t he government denies -- it cannot, in the gover nment' s view, be regarded as "plain error." And even a "plain err or," the government further contends, is not subject to appe llate
remediation unless it is one that "must have affect ed the outcome of the district court proceedings," United States v. Olano, 507 U.S. 725, 734 (1993), which this asserte d error -- so the government contends -- has not done.

III. Discussion

Counsel for appellant Clark did not advise the Dist rict Court, when the court announced the 90-month senten ce, that counsel understood the court to have taken 120 months as the starting point for its downwar d depa rture calculations and that the proper starting point was 108 months. Rule 52(b) of the Federal Rules of Civil Pr ocedure instructs that: "Plain errors or defects af fecting substantial rights may be noticed although they were not br oug ht to the attention of the court." But the Supr eme Court has instructed that: "At a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law." United States v. Olano, 5 07 U.S. 725, 734 (1993).

Clark contends that "it is clear that the district court plainly misapplied 18 U.S.C. S 3553(e) and the guid elines . . ." However, the clarity contended for by Clark is not reflected in the relevant case law. In 1993, six ye ars before Clark's sentencing, the Seventh Circuit had conside red a cognate challenge to a sentencing court's use of th e statutory mandatory minimum, rather than the guidel ine range, as the point of departure for calculation of a downward departure. United States v. Hayes, 5 F.3d 292 (7th Cir. 1993). The circumstances in Hayes's case were

7much like those in Clark's, except that the gover n ment only

moved under 18 U.S.C. S 3553(e) -- not under U.S.S. G. S 5K1.1 as well -- and the statutory mandatory mini mum of 60 months was higher than the top of the guidelines range. The Seventh Circuit said this:

After the hearing, the district court grant ed the government's motion and reduced Hayes' sente nce from 60 to 47 months. The court calculated i ts downward departure by working backwar d from Hayes'
60-month sentence. The court first observed that the lowest United States Sentencing Guidelines ( the "Guidelines") offense level for which a 60-m onth sentence could have been given is 24. Depart ing downward two levels for Hayes' substantial a ssistance results in an offense level of 22, which car ries a sentencing range of 41 to 51 months. Hayes' 47-month sentence falls within that range. Hayes appe als his reduced sentence, arguing that the method us ed by the district court to calculate his downward dep arture violates 18 U.S.C. S 3553(e). . . .

Hayes argues that when a district court dep arts below the mandatory minimum sentence pursuan t to 18 U.S.C. S 3553(e), the resulting sentence must be within the Guidelines range appropriate for the offense and the offender's criminal history category . Because his original offense level was 16 and his cr iminal history category is I, Hayes contends that t he district court was constrained by the resulting 21 to 27 month range. Hayes bases his argument on the porti on of S 3553(e) that states: "Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commissi on . . . ." 18 U.S.C. S 3553(e) (referring to s entences imposed below the statutory minimum for subs tantial assistance). Hayes' argument is unavailing, however, because his 47-month sentence was imposed in accordance with the guidelines.

"Where a statutorily requir ed minimum sent ence is greater than the maximum of the applicable g uideline range, the statutorily required minimum sent ence shall be the guideline sentence." U.S.S.G. S 5G1.1 (b)

8(emphasis supplied). Therefore, when the dis trict court

originally sentenced Hayes, the statutory ma ndatory minimum sentence of 60 months became Hayes' Guidelines range, albeit a narrow one. The 2 1 to 27 range no longer applied. The appropriate sta rting point for Hayes' downward departure was 60 months, and the district court properly began there.

5 F.3d at 294-95 (footnote omitted).

In June of 1999, a month after Clark was sentenced, the Eleventh Circuit, in United States v. Head , 178 F. 3d 1205 (11th Cir. 1999), considered a case closely similar to Hayes -- except that, as in the case at bar, the governme nt filed motions both under 18 U.S.C. S 3553(e) and under U. S.S.G. S 5K1.1 -- and found the Hayes analysis persuasive.

Clark argues that the Hayes-Head appr oach is "lega lly erroneous, and should not command this Court's adherence." But Clark has not pointed to any decisi ons that reject, or substantially diverge from, Hayes and/or Head.6

Notwithstanding the dearth of supportive case law, Clark's challenge to Hayes-Head (capsulized in Clar k's Summary of Argument, quoted in the text, supra, at footnote 4, and summarized in somewhat greater deta il here in the margin, at footnote 7), whether or not ultimately found persuasive, must be acknowledged to be at lea st a plausible line of argument.7 And so it is within th e range of

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6. Cf. United States v. Schaffer, 110 F. 3d 530 (8t h Cir, 1997), and
United States v. Aponte, 36 F.3d 1050 (11th Cir . 1994).

7. In summary, the main line of Clark's ar gument r uns as follows:

(1) 18 U.S.C. S3553(e) instructs that, follo wing the filing by the government of a motion authorizing the sente ncing court to "impose a sentence below a level established by stat ute as a minimum sentence, . . . sentence shall be imposed in accor dance with the guidelines and policy statements issued by t he Sentencing Commission pursuant to" 28 U.S.C. S 994.

(2) The Sentencing Commission's Application Note 7 following U.S.S.G. S 2D1.1 (the guideline applicable t o Clark) provides that:

Where a mandatory (statutory) minimum senten ce applies, this mandatory minimum sentence may be "waived" a nd a lower

9possibility that, as and when the issue comes to th is court

in a form requiring its resolution, this court will not subscribe to the approach taken by the Seventh and Eleventh Circuits. Alternatively, it is possible th at the Supreme Court, if it has occasion to examine the is sue, will not be persuaded that the Hayes-Head analysis has m erit. However, Clark's difficulty on this appeal is that we can find no basis for concluding that the methodology e mployed by the District Court in sentencing Clark -- a meth odology in conformity with Hayes-Head -- was at the time of sentencing, or is today, an "error [which was] clea r under current law." Olano, 507 U.S. at 534.

Clark argues in his reply brief that"plain error" jurisprudence is inapplicable to this case, which h e describes as one in which "the issue presented on a ppeal did not arise until after the district court had gr anted the government's motions under 18 U.S.C. S 3553(e) and U.S.S.G. S 5K1.1 and imposed sentence." According t o Clark, "under such circumstances a party is not req uired to raise an objection before the sentencing court." To support this argument, Clark relies on United States v. Leu ng, 40 F. 3d 577 (2d Cir. 1994). In Leung, the Second Circuit
,

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sentence imposed (including a sentence below the applicable guideline range), as provided in 28 U.S.C.S 994(n), by reason of
a defendant's "substantial assistance in the investigation or prosecution of another person who has commit ted an offense."

(3) In Melendez v. United States, 518 U.S. 1 20 (1996), the Supreme Court held that the government's filing of a motion under U.S.S.G. S 5K1.1, authorizing the imposition of a sen tence below the guidelines, does not operate to authorize a sentence below a mandatory statutory minimum. The latter auth orityflows only from the government's filing of a motion under 18 U.S.C. S 3553(e). The Melendez Court's holding appears to have acc epted as its premise that the statutory S 3553(e) motion and the guidelines S 5K1.1 motion are independent of one another, const ituting a "binary" rather than a "unitary" system. See 518 U.S. at 125-27. Accordingly, Clark argues, the Melendez affir mation of t he separateness of the
two motions confirms Clark's contention that "once the court has granted a government motion under 18 U.S.C.S 3553(e) and `waived' the statutory minimum, that minimum can not serve as the starting point for calculating a departure under S 5K 1.1."

10speaking through Judge (then-Chief Judge) Newman, d id

remand for resentencing because of certain statemen ts the sentencing judge made in the course of denying a downward departure and giving his rationale for the sentence imposed -- statements to which defense cou nsel had not registered any contemporaneous objection. A s Clark observes, Judge Newman described the situatio n presented in Leung as "not comparable to one where a defendant fails to object to factual statements in a presentencing report . . . or fails to object to a proposed legal ruling regarding an application of the Senten cing Guidelines . . . ." But the situation presented in Leung was one which is also not comparable to the situation p r esented in the case at bar. In Leung, the sentencing judge, (a) in denying a downward departure and, then, (b), in exp laining
the number of months of incarceration he found appropriate within the applicable guideline range, had referred to the defendant's Canadian citizenship an d Chinese ancestry in a manner from which, the Second Circuit opined, "a reasonable observer , hearing or reading the remarks, might infer, however incorr ectly, tha t Leung's ethnicity and alien status played a role in determi ning her
sentence." 40 F. 3d at 586-87. Given that unusual s et of circumstances, the Leung court felt that procedural conventions calling for contemporaneous objections to a sentencing judge's actions were without application . The court put the matter this way:

The Government argues that we should not re ach the merits of this issue because Leung failed to object to the contested remarks at the sentencing hear ing. However, Leung did not forfeit her right to challenge the sentencing remarks on appeal. The first r emark was somewhat ambiguous, and a defendant is understandably reluctant to suggest to a jud ge that an ambiguous remark reveals bias just as the ju dge is

about to select a sentence. The second remar k, which referred to Leung's ethnicity and which coul d be thought to give meaning to the first remark, occurred after the sentence had been imposed. This si tuation is not comparable to one where a defendant fail s to object to factual statements in a presentencing r e port, see United States v. Feigenbaum, 962 F.2d 230, 2 33 (2d

11cir. 1992), or fails to object to a pr opose d legal ruling

regarding an application of the Sentencing G uidelines, see United States v. Baez, 944 F.2d 88, 90 ( 2d Cir. 1991). In a variety of circumstances in whic h a party could not reasonably have been expected to r aise a contemporaneous objection at a sentencing he aring we have allowed the objection to be raised for thefirst time on appeal.

40 F.3d at 586.

Clark's case stands in marked contrast to Leung. I n Clark's case, the problem posed by the sentencing j udge's statement was the correctness of a "legal ruling re garding an application of the Sentencing Guidelines." And, given that Hayes had been decided more thanfive years, an d Melendez nearly three years, before the day of Clar k's sentencing, the problem was part of the overar chin g sentencing jurisprudence and hence not a problem ab out which "a party could not reasonably have been expec ted to raise a contemporaneous objection at a sentencing hearing." Leung, 40 F.3d at 586. Moreover, the obje ction to be raised in Clark's case went simply to a question of law; it was not one which, as in Leung -- in addition to being occasioned by an observation from the bench not rea dily to have been anticipated -- was infused with a sensiti vity that might well have rendered the potentially objecting party "understandably reluctant" (to use the Second Circu it's apt phrase) to interpose a challenge.

Conclusion

For the foregoing reasons, the judgment of the Dist rict
Court will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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