                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-2004

USA v. Clark
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2589




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"USA v. Clark" (2004). 2004 Decisions. Paper 775.
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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 03-2589


                           UNITED STATES OF AMERICA

                                            v.

                                   TAMMY CLARK,

                                                 Appellant


                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                              (D.C. No. 02-cr-00018-04)
                        District Judge: Hon. Gary L. Lancaster




                      Submitted under Third Circuit LAR 34.1(a)
                                   April 1, 2004

               Before: ALITO, FISHER and ALDISERT, Circuit Judges.

                                 (Filed: April 26, 2004)




                              OPINION OF THE COURT


ALDISERT, Circuit Judge.

      Because we write for the parties only, the background of this case is not set forth.

This appeal by Tammy Clark requires us to decide whether her sentence should be
vacated and the proceedings remanded for resentencing with instructions to the district

court to clarify why it did not grant a downward departure for sentencing manipulation.

       In the document “Defendant’s Position with Respect to Sentencing Factors,” Clark

contended before the district court that holding Clark responsible for nine firearms was

improper because the government alone determined the length of the sting operation and,

thus, the number of firearms involved. Clark asked the district court not to impose a

three-level offense increase holding Clark responsible for all nine firearms, pursuant to

United States Sentencing Commission, Guidelines Manual, § 2K2.1(b)(1)(C) (Nov.

2000), and to reduce the offense level by four because Clark played a minimal role in the

illegal sales, pursuant to U.S.S.G. § 3B1.2(a).

       The district court found that Clark was less culpable than other participants in the

conspiracy and that her role could be described as minor but not minimal. The district

court accordingly granted Clark a two-level reduction pursuant to U.S.S.G. § 3B1.2(b).

Because the offense involved nine firearms, however, the district court increased the

offense level by three pursuant to U.S.S.G. § 2K2.1(b)(1)(C). With an offense level of 15

and a criminal history category of I, the Guidelines yielded a sentence of 18 to 24 months

imprisonment.

       Clark contends that “[t]he District Court erred in not considering the sentencing

manipulation aspect of this case.” (Br. of Appellant at 13.) She asks this court to instruct

the district court to explain why it did not grant a downward departure, but at no time did



                                             2
Clark request or even mention a downward departure before the district court.

        Clark’s relevant arguments in “Defendant’s Position with Respect to Sentencing

Factors” were limited to the contention that she should not receive a three-level

enhancement for nine firearms pursuant to U.S.S.G. § 2K2.1(b)(1)(C). In that document,

she did not mention a downward departure. Likewise, at the sentencing hearing, she did

not request a downward departure; rather, her arguments focused on her alleged minimal

role in the criminal activity and the alleged unfairness that other participants in the illegal

firearms sales received favorable sentences because they pleaded guilty rather than going

to trial.

        The district court did consider – and reject – Clark’s argument that she should not

be held responsible for nine firearms, pursuant to U.S.S.G. § 2K2.1(b)(1)(C), because the

government prolonged its investigation merely to include more firearms. It is not clear

that Clark has challenged the district court’s conclusion on this issue, but even if she had,

the district court did not err in determining that Clark was responsible for nine firearms.

As noted by the probation officer, Clark participated in the actual exchange of six

firearms and in the ordering of three more firearms.

        The district court stated that it had reviewed the Presentence Investigation Report,

which concluded that “[t]he probation officer has no information concerning the offense

or the offender which would warrant a departure from the prescribed sentencing

guidelines.” (PSIR ¶ 74; App. at 28-29.) In sentencing Clark without granting any



                                               3
downward departure, the district court did not commit a plain error affecting Clark’s

substantial rights and seriously affecting the fairness, integrity or public reputation of

judicial proceedings. The cases cited by Clark do not lead to the conclusion that she

warrants a new sentencing hearing on downward departure. See United States v.

Drozdowski, 313 F.3d 819, 825 n.3 (3d Cir. 2002) (concluding there was no merit in a

defendant’s argument that he should have been granted a downward departure because

“the disparity between Drozdowski’s sentence and those of his co-defendants was due to

allegedly improper charging decisions by the Government”); United States v. Okey, 47

F.3d 238, 240-241 (7th Cir. 1995) (noting the reluctance of some courts to recognize

sentencing manipulation claims and rejecting a defendant’s argument that the government

unduly prolonged its investigation).

       We have considered all contentions raised by the parties and conclude that no

further discussion is necessary.

       The judgment of the district court will be affirmed.




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