     Case: 10-30256 Document: 00511332690 Page: 1 Date Filed: 12/27/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 27, 2010
                                     No. 10-30256
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DAREN CLARK,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 3:09-CR-63-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Daren Clark is appealing his 120-month sentence imposed following his
guilty plea conviction to possession with intent to distribute 50 grams or more
of a substance containing cocaine base. Clark argues that his sentence was
imposed in violation of the Sixth Amendment because it was based on facts
about his leadership role in the offense which he did not admit and were not
found by a jury. The PSR reflected that Clark used Ocie Lacey’s home to store
his drugs at her home in exchange for payment in the form of drugs.                        He

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-30256 Document: 00511332690 Page: 2 Date Filed: 12/27/2010

                                  No. 10-30256

contends that because the statutory mandatory minimum sentence became the
bottom of his guideline sentencing range, he was sentenced under a de facto
mandatory guideline system.
      Following United States v. Booker, 543 U.S. 220 (2005), the Sentencing
Guidelines are advisory only, and “[t]he sentencing judge is entitled to find by
a preponderance of the evidence all the facts relevant to the determination of a
guideline sentencing range.” United States v. Rhine, 583 F.3d 878, 891 n.50 (5th
Cir. 2009) (alteration in original) (internal quotation marks and citation
omitted); United States v. Goss, 549 F.3d 1013, 1016 (5th Cir. 2008). Booker has
remedied the Sixth Amendment problems Clark identifies. See United States v.
Whitfield, 590 F. 3d 325, 367 (5th Cir. 2009), cert. denied, 131 S. Ct. 136 (2010).
      The fact that the statutory mandatory minimum sentence became Clark’s
bottom guidelines range sentence was not the result of the use of a de facto
mandatory guidelines system in violation of the Sixth Amendment. Clark was
subject to the statutory mandatory minimum of 120 months pursuant to statute,
21 U.S.C. § 841(b)(1)(A)(iii), based on the drug quantity involved in the offense.
Clark stipulated to the amount of drugs involved in the offense in the factual
statement supporting his plea. His leadership role in the criminal activity was
not the reason that he was subject to the mandatory minimum sentence. As
discussed below his ineligibility for the application of the safety valve provision
was based on the district court’s proper application of the post-Booker advisory
guidelines. It did not result in a Sixth Amendment violation.
      Clark argues that, even assuming there was no Sixth Amendment
violation, the evidence was not sufficient to enhance his offense level based on
his having a management or supervision role over another participant in the
offense. Section 3B1.1(c) provides for a two-level enhancement if the defendant
is an organizer, leader, manager or supervisor of criminal activity, and he
supervises one or more participants. § 3B1.1(c); § 3B1.1, comment. (n.2). “A



                                         2
    Case: 10-30256 Document: 00511332690 Page: 3 Date Filed: 12/27/2010

                                   No. 10-30256

‘participant’ is a person who is criminally responsible for the commission of the
offense, but need not have been convicted. § 3B1.1, comment. (n.1).
      In allowing her residence to be used for the manufacturing and storage of
cocaine in exchange for cocaine, Lacey aided and abetted in the drug distribution
activity. Thus, although not charged, she was a knowing participant in the
criminal activity. See United States v. Messervey, 317 F.3d 457, 460-61 (5th Cir.
2002). With respect to the issue of Clark’s control and leadership role, the
evidence showed that Clark alone had the combination to the locked safe
containing the drugs although it was located in Lacey’s home. Clark controlled
the continuation of the operation by supplying an addict with cocaine so that he
could continue using her residence as a “crack” house.
      Insofar as Clark argues that the factual basis for his plea does not support
the finding of a leadership role, such a finding within the meaning of § 3B1.1
encompasses all relevant conduct linked to the transaction resulting in the
offense, even if it includes conduct that is outside the scope of the count of
conviction.   United States v. Reedy, 304 F.3d 358, 370 (5th Cir. 2002). The
district court did not clearly err in determining that Clark’s offense level should
be enhanced by two levels for his leadership role in the offense.
      Clark argues that the enhancement of his sentence for a leadership role
under § 3B1.1 was prejudicial error because it deprived him of the right to be
considered for a reduced sentence under the safety valve provision. Section
5C1.2(a)(4) provides that a defendant will not be eligible for relief under the
safety valve provision if he was an organizer, leader, manager, or supervisor of
others in the offense. § 5C1.2(a)(4). Because the district court did not clearly err
in determining that Clark was an organizer or leader under § 3B1.1(c), Clark
was ineligible for a safety valve reduction. See § 5C1.2(a)(4). Therefore, Clark
has not shown that the district court clearly error in finding him ineligible for
application of the safety valve provision. See United States v. Miller, 179 F.3d
961, 963-64 (5th Cir. 1999). Clark’s sentence is AFFIRMED.

                                         3
