Opinions of the United
2001 Decisions                                                                                                             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Precedential or Non-Precedential: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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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, 

(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, 

(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 

.

                               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 two-
fold:

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, 

(7th Cir. 1993), and followed in United
States v. Head, 

(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, 

, 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, 

, 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, 

(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 

(footnote omitted).

In June of 1999, a month after Clark was sentenced, the
Eleventh Circuit, in United States v. Head , 

(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 

, 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, 

(8th Cir, 1997), and
United
States v. Aponte, 

(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." 

.

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, 

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, 

(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. 

.
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." 

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, 

, 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, 

, 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 

.

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." 

. 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