2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-10-2001

United States v. Clark

Precedential or Non-Precedential:

Docket 99-5386

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Recommended Citation

"United States v. Clark" (2001). 2001 Decisions. Paper 5.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/5
Filed 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 

_________________________________________________________________ 

* Hon. Louis H. Pollak, United States District Court 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 indictment 

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 agreement, Clark 

undertook to assist law enforcement officers in their efforts 

to gather evidence against and prosecute others. In

exchange for that undertaking, the government agreed that, 

if satisfied that Clark's assistance was substantial, it 

would, at the time of Clark's sentencing, file motions1 

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 motions. At 

sentencing it was determined that the guideline offense 

level was 29 -- signifying a guideline range of 108 to 135 

_________________________________________________________________ 

1. The word "motions," in the plural, is employed here to make it clear 

that the government, in filing what in or dinary practice is a single 

document enabling a sentencing court to depart downward below both 

the guideline range and any statutory minimum in recognition of a 

defendant's cooperation, is as a formal matter to be 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 conceptual distinction has 

important real-world implications, as United States v. Melendez, 518 U.S. 

120 (1996), affirming this court's decision, 55 F.3d (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 sentencing court to depart 

downward below the statutory minimum. 

 2 
months -- 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, in 

calculating an appropriate downward departure, chose as 

its base line the 120-month statutory minimum rather than 

the 108-month bottom of the guideline -- a choice resulting 

in a sentence appreciably longer than it would have been 

had the District Court calculated the downwar d departure 

from a base line of 108 months. The methodology adopted 

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 ovisions 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 guidelines 

and (b) the case law construing those provisions. Further, 

the government points out that at sentencing Clark 

interposed no objection to the District Court's methodology 

and, therefore, so the government ar gues, the methodology 

is not assailable on appeal unless it is properly 

characterizable not merely as error but as"plain" error -- 

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 used 120 

months or 108 months as its point of departur e made no 

difference with respect to the sentence actually imposed: as 

the government reads the recor d at sentencing, the District 

Court determined that a two-level downwar d departure was 

appropriate, and, since both 120 months and 108 months 

fall within offense level 29's guideline range, a two-level 

downward departure from either 120 months or 108 

months would have brought the court to of fense level 27, 

and a consequent range of 87 to 108 months, within which 

range the court selected 90 months as the pr oper sentence. 

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 that he can 

properly be required to have objected to at the sentencing 

hearing because "the issue . . . did not arise until after the 

 3 
district court had granted the government's[downward 

departure] motions . . . and imposed sentence." 

I. The Proceedings in the District Court 

At Clark's sentencing the District Court deter mined 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 statute (21 

U.S.C. S 841(b)(1)(A)(iii)) to impose a ter m of incarceration of 

at least 120 months, and (2) required by the guidelines 

applicable to a Criminal History Category III of fender with 

an offense level of 29 to impose a ter m of incarceration 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 that the 

District Court would have been required to sentence Clark 

to a term of incarceration of between 120 and 135 months. 

The District Court put it this way: 

 All right. The warrants [sic] 2 for the government's 

 downward departure motion, I, of course would be 

 limited to 10 years, make it 120 and 135, because of 

 the government's downward departur e motion, I am 

 not so bound and I can go below the 120 months or I 

 can even go below the level 29. 

Immediately thereafter the District Court "committed 

[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 elease; 

$750 fine; $100 special assessment), the District Court 

advised Clark of his right to appeal, and then said: 

 The departure that I had reached is a substantial one. 

 I have gone below the mandatory minimum as stated 

 and in addition, gone up [sic] two levels, at the bottom 

 of that range, approximately to a 90 month instead of 

 120 months. 

Thereafter, following an expression of "hope that the 

defendant is correct in saying he'll tur n his life around" on 

release, the court inquired: 

_________________________________________________________________ 

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

 4 
 Anything 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 ecommend and 

I will." After defense counsel said, "Thank you, Judge," the 

court inquired again: "Anything further? Government?" 

Government counsel said: "Nothing, Y our Honor." The court 

then observed: "Okay. I hope Mr. Clark is able to turn 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 brief 

on appeal, outlines his position as follows: 

 In contrast to the approach followed by the district 

 court, the Sentencing Guidelines provide that 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 without 

 reference to that minimum term. Thus, where the 

 government has moved for a downward departure 

 under U.S.S.G. 5K1.1 in addition to having moved to 

 waive a statutory minimum, the starting point for 

 calculating the 5K1.1 departure should be the bottom 

 of the guideline range. This approach is r equired by the 

 relevant statutory and guidelines provisions, by the 

 United States Supreme Court's holding in United States 

 v. Melendez, 518 U.S. 120 (1996),3 and by the 

 structure and goals of the guidelines as expr essed by 

 the Sentencing Commission. As the district court 

 misapplied the guidelines by calculating the departure 

 from the statutory minimum term, the Court should 

 remand this case with instructions that the court 

 resentence the defendant by calculating the downward 

_________________________________________________________________ 

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

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

 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 Clark's 

argument, the pertinent statutory and guidelines provisions 

do not authorize -- much less require-- a sentencing 

court, when fashioning a downward departur e pursuant 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 higher 

than the bottom of the applicable guideline range but lower 

than the top of the guideline range. In such a situation -- 

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 the 

government, required by U.S.S.G.S 5G.1(c)(2),5 to narrow 

the guideline range to the segment between the statutory 

minimum and the top of the guideline range (in the case at 

bar, 120 to 135 months) and then calculate any downward 

departure with that narrowed guideline range as its point of 

departure. The government further contends that its

reading of the pertinent statutory and guidelines provisions 

is consonant with the approach taken in United States v. 

_________________________________________________________________ 

4. The argument advanced by Clark is somewhat amplified in footnote 7, 

infra. 

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

 (a) Where the statutorily authorized maximum sentence is less than 

 the minimum of the applicable guideline range, the statutorily 

 authorized maximum sentence shall be the guideline sentence. 

 (b) Where a statutorily required minimum sentence is greater than 

 the maximum of the applicable guideline range, the statutorily 

 required minimum sentence shall be the guideline sentence. 

 (c) In any other case, the sentence may be imposed at any point 

 within the applicable guideline range, provided that the sentence -

- 

 (1) is not greater than the statutorily authorized maximum 

 sentence, and 

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

 6 
Hayes, 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 his 

objection to the District Court's mode of calculating the 

downward departure, Clark can only complain on appeal if 

the District Court's action was "plain err or." Even if the 

District Court's action be deemed "error"-- which the 

government denies -- it cannot, in the gover nment's view, 

be regarded as "plain error." And even a "plain error," the 

government further contends, is not subject to appellate 

remediation unless it is one that "must have affected the 

outcome of the district court proceedings," United States v. 

Olano, 507 U.S. 725, 734 (1993), which this asserted error 

-- so the government contends -- has not done. 

III. Discussion 

Counsel for appellant Clark did not advise the District 

Court, when the court announced the 90-month sentence, 

that counsel understood the court to have taken 120

months as the starting point for its downwar d departure 

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 ought 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, 507 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 guidelines 

. . ." However, the clarity contended for by Clark is not 

reflected in the relevant case law. In 1993, six years before 

Clark's sentencing, the Seventh Circuit had considered a 

cognate challenge to a sentencing court's use of the 

statutory mandatory minimum, rather than the guideline 

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 

 7 
much like those in Clark's, except that the gover nment 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 minimum of 

60 months was higher than the top of the guidelines range. 

The Seventh Circuit said this: 

 After the hearing, the district court granted the 

 government's motion and reduced Hayes' sentence 

 from 60 to 47 months. The court calculated its 

 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-month 

 sentence could have been given is 24. Departing 

 downward two levels for Hayes' substantial assistance 

 results in an offense level of 22, which carries a 

 sentencing range of 41 to 51 months. Hayes' 47-month 

 sentence falls within that range. Hayes appeals his 

 reduced sentence, arguing that the method used by the 

 district court to calculate his downward departure 

 violates 18 U.S.C. S 3553(e). . . . 

 Hayes argues that when a district court departs 

 below the mandatory minimum sentence pursuant 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 criminal 

 history category is I, Hayes contends that the district 

 court was constrained by the resulting 21 to 27 month 

 range. Hayes bases his argument on the portion of 

 S 3553(e) that states: "Such sentence shall be imposed 

 in accordance with the guidelines and policy

 statements issued by the Sentencing Commission 

 . . . ." 18 U.S.C. S 3553(e) (referring to sentences 

 imposed below the statutory minimum for substantial 

 assistance). Hayes' argument is unavailing, however, 

 because his 47-month sentence was imposed in

 accordance with the guidelines. 

 "Where a statutorily requir ed minimum sentence is 

 greater than the maximum of the applicable guideline 

 range, the statutorily required minimum sentence shall 

 be the guideline sentence." U.S.S.G. S 5G1.1(b) 

 8 
 (emphasis supplied). Therefore, when the district court 

 originally sentenced Hayes, the statutory mandatory 

 minimum sentence of 60 months became Hayes' 

 Guidelines range, albeit a narrow one. The 21 to 27 

 range no longer applied. The appropriate starting 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 government 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 "legally 

erroneous, and should not command this Court's 

adherence." But Clark has not pointed to any decisions 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 Clark's 

Summary of Argument, quoted in the text, supra, at 

footnote 4, and summarized in somewhat greater detail 

here in the margin, at footnote 7), whether or not ultimately 

found persuasive, must be acknowledged to be at least a 

plausible line of argument.7 And so it is within the range of 

_________________________________________________________________ 

6. Cf. United States v. Schaffer, 110 F. 3d 530 (8th 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 runs as follows: 

 (1) 18 U.S.C. S3553(e) instructs that, following the filing by the 

 government of a motion authorizing the sentencing court to "impose 

 a sentence below a level established by statute as a minimum 

 sentence, . . . sentence shall be imposed in accor dance with the 

 guidelines and policy statements issued by the 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 to Clark) provides that: 

 Where a mandatory (statutory) minimum sentence applies, this 

 mandatory minimum sentence may be "waived" and a lower 

 9 
possibility that, as and when the issue comes to this 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 that the 

Supreme Court, if it has occasion to examine the issue, will 

not be persuaded that the Hayes-Head analysis has merit. 

However, Clark's difficulty on this appeal is that we can 

find no basis for concluding that the methodology employed 

by the District Court in sentencing Clark -- a methodology 

in conformity with Hayes-Head -- was at the time of

sentencing, or is today, an "error [which was] clear 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 he 

describes as one in which "the issue presented on appeal 

did not arise until after the district court had granted the 

government's motions under 18 U.S.C. S 3553(e) and 

U.S.S.G. S 5K1.1 and imposed sentence." According to 

Clark, "under such circumstances a party is not required to 

raise an objection before the sentencing court." To support 

this argument, Clark relies on United States v. Leung, 40 F. 

3d 577 (2d Cir. 1994). In Leung, the Second Circuit, 

_________________________________________________________________ 

 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 committed an offense." 

 (3) In Melendez v. United States, 518 U.S. 120 (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 sentence below the 

 guidelines, does not operate to authorize a sentence below a 

 mandatory statutory minimum. The latter authorityflows 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 accepted as its premise 

 that the statutory S 3553(e) motion and the guidelines S 5K1.1 

 motion are independent of one another, constituting a "binary" 

 rather than a "unitary" system. See 518 U.S. at 125-27. 

Accordingly, 

 Clark argues, the Melendez affir mation of the 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 5K1.1." 

 10 
speaking through Judge (then-Chief Judge) Newman, did 

remand for resentencing because of certain statements the 

sentencing judge made in the course of denying a 

downward departure and giving his rationale for the

sentence imposed -- statements to which defense counsel 

had not registered any contemporaneous objection. As 

Clark observes, Judge Newman described the situation 

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 Sentencing 

Guidelines . . . ." But the situation presented in Leung was 

one which is also not comparable to the situation pr esented 

in the case at bar. In Leung, the sentencing judge, (a) in 

denying a downward departure and, then, (b), in explaining 

the number of months of incarceration he found 

appropriate within the applicable guideline range, had 

referred to the defendant's Canadian citizenship and 

Chinese ancestry in a manner from which, the Second

Circuit opined, "a reasonable observer , hearing or reading 

the remarks, might infer, however incorr ectly, that Leung's 

ethnicity and alien status played a role in determining her 

sentence." 40 F. 3d at 586-87. Given that unusual set 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 reach the 

 merits of this issue because Leung failed to object to 

 the contested remarks at the sentencing hearing. 

 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 judge that an 

 ambiguous remark reveals bias just as the judge is 

 about to select a sentence. The second remark, which 

 referred to Leung's ethnicity and which could be 

 thought to give meaning to the first remark, occurred 

 after the sentence had been imposed. This situation is 

 not comparable to one where a defendant fails to object 

 to factual statements in a presentencing r eport, see 

 United States v. Feigenbaum, 962 F.2d 230, 233 (2d 

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

 regarding an application of the Sentencing Guidelines, 

 see United States v. Baez, 944 F.2d 88, 90 (2d Cir. 

 1991). In a variety of circumstances in which a party 

 could not reasonably have been expected to raise a 

 contemporaneous objection at a sentencing hearing 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. In 

Clark's case, the problem posed by the sentencing judge's 

statement was the correctness of a "legal ruling regarding 

an application of the Sentencing Guidelines." And, given 

that Hayes had been decided more thanfive years, and 

Melendez nearly three years, before the day of Clark's 

sentencing, the problem was part of the overar ching 

sentencing jurisprudence and hence not a problem about 

which "a party could not reasonably have been expected to 

raise a contemporaneous objection at a sentencing 

hearing." Leung, 40 F.3d at 586. Moreover, the objection 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 readily to 

have been anticipated -- was infused with a sensitivity that 

might well have rendered the potentially objecting party 

"understandably reluctant" (to use the Second Circuit's apt 

phrase) to interpose a challenge. 

Conclusion 

For the foregoing reasons, the judgment of the District 

Court will be affirmed. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 12