                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4182


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

NICOLE FELICIA CLARK, a/k/a Mo,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District Judge.
(2:14-cr-00008-MSD-DEM-1)


Argued:   October 26, 2016                 Decided:   December 16, 2016


Before DUNCAN and AGEE, Circuit Judges, and Bruce H. HENDRICKS,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Harry Dennis Harmon, Jr., Norfolk, Virginia, for
Appellant.   Darryl James Mitchell, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee.    ON BRIEF: Dana J.
Boente, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       On December 2-4, 2014, in the U.S. District Court for the

Eastern District of Virginia, Norfolk Division, defendant Nicole

Felicia       Clark      was      tried     before          a   jury     on     a     four-count

superseding indictment.                Count one of the superseding indictment

charged Clark with conspiracy to distribute and possession with

intent to distribute cocaine and heroin, in violation of Title

21 of the United States Code §§ 846, 841(a)(1) and (b)(1)(A).

Count       two    of    the      superseding          indictment       charged       her     with

possession with intent to distribute heroin, in violation of

Title 21 of the United States Code §§ 841(a)(1) and (b)(1)(A).

Counts three and four of the superseding indictment charged her

with possession with intent to distribute heroin, in violation

of    Title       21    of     the    United      States        Code    §§      841(a)(1)      and

(b)(1)(A).          Clark elected to proceed pro se during the trial,

and    on    December        4,   2014,     she       was   found      guilty    of    all    four

counts.

       Clark continued to represent herself during the sentencing

phase of the case.                The district court, inter alia, applied a

two-level sentencing enhancement for maintaining a drug-related

premises and sentenced Clark to 240 months’ imprisonment on each

of    the    four      counts,       with   these      terms     of    confinement       to    run

concurrently.           During the sentencing phase, Clark objected to

certain paragraphs of the presentence report; however, she did

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not object to the paragraphs that pertained to the sentencing

enhancement       for       maintaining       a       drug-related       premises.         This

specific enhancement increased Clark’s advisory guidelines range

from 188-235 months’ imprisonment to 235-293 months.

        Clark objected to the appointment of counsel to represent

her   on   appeal.           However,     she         agreed    to   the   appointment      of

standby counsel.             Standby counsel filed a brief in this Court

pursuant to Anders v. California, 386 U.S. 738 (1967), inter

alia, inviting the Court to review the entire record in order to

determine     whether        there    existed          any     non-frivolous       issue   for

appeal.     On March 3, 2016, the Court directed the parties to

file supplemental briefs addressing whether sufficient evidence

supported     the    sentencing       enhancement              for   maintaining     a   drug-

related premises.            After appropriate briefing and oral argument

and for     the     reasons     stated     below,         we    affirm     the   defendant’s

sentence.



                                              I.

      Clark    contends        that     the       sentencing         enhancement     applied

under    U.S.S.G.       §    2D1.1(b)(12)         for    maintaining       a     drug-related

premises was not supported by sufficient evidence.

        Ordinarily, we review a district court’s application of the

sentencing guidelines de novo and its factual findings for clear

error.     United States v. Strieper, 666 F.3d 288, 292 (4th Cir.

                                                  3
2012).     However,          where   a      defendant      fails   to     object   in    the

district court, thus denying the district court the opportunity

to consider the purported error, such a defendant’s challenge to

the application of the guidelines is reviewed for plain error on

appeal.    United States v. Hargrove, 625 F.3d 170, 184 (4th Cir.

2010).          Clark       failed     to     object       to    the    §    2D1.1(b)(12)

enhancement, and we review the application of the enhancement

for plain error accordingly.

     To    establish        plain    error,        Clark   must    show     that   (1)   the

district court erred, (2) the error was plain, and (3) the error

affected her substantial rights.                     United States v. Olano, 507

U.S. 725, 732–34 (1993).              A “plain” error is one that is “clear”

or “obvious,” id. at 734, under “the settled law of the Supreme

Court or this circuit.”                United States v. Carthorne, 726 F.3d

503, 516 (4th Cir. 2013) (citation omitted).                            In other words,

the presence of the error must be beyond reasonable dispute.

See United States v. Marcus, 560 U.S. 258, 262 (2010). Because

Clark    has    not     shown   that     the    district        court   committed    plain

error, we affirm.



                                              II.

    The Sentencing Guidelines allow for a two-level enhancement

to a defendant’s offense level “[i]f the defendant maintained a

premises       for    the   purpose      of    manufacturing       or     distributing     a

                                               4
controlled substance.”               U.S.S.G. § 2D1.1(b)(12).                       According to

the applicable commentary, “[a]mong the factors the court should

consider in determining whether the defendant ‘maintained’ the

premises     are       (A)     whether      the      defendant         held     a     possessory

interest in (e.g., owned or rented) the premises and (B) the

extent     to    which        the        defendant       controlled          access        to,        or

activities      at,     the        premises.”            Id.     §    2D1.1     cmt.        n.    17.

Moreover,       “[m]anufacturing              or        distributing            a     controlled

substance need not be the sole purpose for which the premises

was maintained, but must be one of the defendant’s primary or

principal       uses    for        the    premises,        rather       than        one     of     the

defendant’s      incidental          or    collateral          uses    for    the     premises.”

Id.

      Clark argues that the two-level sentencing enhancement was

not supported by the evidence because: (1) she only delivered

illegal drugs to the premises and stayed overnight until they

were sold; (2) she did not have a possessory interest in, or

control access to, the premises; and (3) she did not maintain

the   premises      for       the    purpose       of    storing,        manufacturing,               or

distributing illegal drugs.                   The government responds that the

evidence    demonstrated            the    apartment       in        question       served       as    a

warehouse        and         distribution          hub         for      Clark’s           and      her

coconspirators’              drug-trafficking              business,            making            the

application        of        the    sentencing           enhancement          against            Clark

                                               5
permissible.        We agree with the government and find no plain

error in the application of the § 2D1.1(b)(12) enhancement.



                                         III.

        The premises at issue is an apartment on East Ocean View

Avenue (“Ocean View apartment” or “the apartment”) in Norfolk,

Virginia.         Dedrick     Leary     (“Leary”),         a    government    witness,

testified that he assumed occupancy of the Ocean View apartment

in 2012 with his associate Demetrius Lee (“Lee”).                      J.A. 169–71.

Leary paid rent “to the tenant who was supposed to occupy [the

apartment]” over the course of approximately one year, but was

never the leaseholder.           Id. 170–71.          Soon after Leary and Lee

occupied the apartment, Quincy Freeman (“Freeman”) began staying

there    with     Lee   and   began    using    the       apartment   for    his   drug

trafficking activities.          Id. 171–72, 179.              Freeman, a government

witness, acknowledged that the Ocean View apartment was used for

the storage and distribution of cocaine and heroin.                     Id. 100.

        Freeman    identified     Clark        as     a    member     of     his   drug

distribution organization whose job it was to “drive the cocaine

from Atlanta to Virginia.”              Id. 88–94.             The drugs that Clark

transported to Virginia were usually stored at the Ocean View

apartment.        Id. 99–100.         Clark transported cocaine and heroin

from Atlanta and delivered the drugs to Freeman in Virginia “at

least five to ten times” during the conspiracy.                            Id. 106–07.

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Clark transported cocaine from Atlanta to Virginia in quantities

ranging   from        three    to       fifteen       kilograms.          Id.       109–11.      She

transported      heroin        from      Atlanta       to   Virginia       in       one   to   three

kilogram quantities.                Id. 111–14.             Most of these drugs were

delivered       by     Clark       to    Freeman       directly      at        the    Ocean     View

apartment.       Id. 115.

      According        to     Freeman,      after       Clark,      an    Atlanta         resident,

delivered drugs to him at the apartment she would stay there

overnight.           Id. 120, 138–40.                 During these periods, she had

access to the entire apartment, including the back room where

the   drugs      and       money    were    stored.           Id.    139.            Clark     would

sometimes wait in Norfolk until Freeman finished selling the

drugs from her previous delivery in order to transport the full

proceeds back to Atlanta.                    Id. 139–40.             In these instances,

Clark would remain at the Ocean View apartment for more than one

night.    Id.

      Leary     testified          that    he     helped     Clark       and     coconspirators

“stretch” the cocaine at the Ocean View apartment.                                    Id. 176–77,

186–87.     This process involved adding a dietary food supplement

to the cocaine to increase its weight.                        Id. 176.              Leary further

testified that he observed a handgun at the apartment, and Clark

later    asked       him    and    Lee    where       she   could        get    a    bigger     gun,

because the handgun present was too small in her opinion.                                       Id.

192–93.     According to Leary, Clark made an additional delivery

                                                  7
of    cocaine    after       Freeman’s       arrest   and       began   staying     at    the

apartment for “extended periods.”                  Id.

       Joseph     McPherson         (“McPherson”),          a     government       witness,

testified       that        he   purchased     cocaine          from    Freeman    at     the

apartment       during       the    conspiracy.          Id.     226.      According       to

McPherson, after Freeman was arrested in May 2013, McPherson

went to the apartment where he saw Clark and a coconspirator.

Id.    232–33.         At    that    time,    Clark      told     McPherson     that     when

Freeman was arrested there had been a kilogram of heroin in the

apartment but it had since been stolen.                     Id. 233.

       We find that the foregoing constitutes sufficient evidence

to support application of the § 2D1.1(b)(12) enhancement under

plain   error     review.           Certainly,     the    evidence       outlined        above

establishes that “[m]anufacturing or distributing a controlled

substance . . . [was] one of [Clark’s and her coconspirators’]

primary or principal uses for the premises.” U.S.S.G. § 2D1.1

cmt n. 17.         Clark argues that neither Freeman’s nor Leary’s

testimony       established         that     she   distributed          drugs     from     the

premises.       Rather, she asserts, it was Freeman, Leary, and Lee

exclusively who used the premises to store, manufacture, and

distribute controlled substances.                     But it is of little import

that Clark did not personally provide cocaine and heroin to mid-

level dealers and end users.                 Clark was an indispensable link in

Freeman’s drug distribution chain, and the conduct of which she

                                              8
was found guilty played an integral part in establishing the

principal use for the premises.

      The issue of whether Clark “maintained” the premises is a

close    call   under   the   guidance    provided   in   the   commentary.

Courts are instructed to consider “whether the defendant held a

possessory interest” in the premises and “the extent to which

the   defendant    controlled”   access    and   activities     therein,   as

“[a]mong the factors” relevant to the determination.                See id.

The Seventh Circuit described the related inquiry with regard to

maintaining a drug-involved premises in violation of 21 U.S.C. §

856 in this way: “[A]n individual ‘maintains’ a drug house if he

owns or rents premises, or exercises control over them, and for

a sustained period of time, uses those premises to manufacture,

store, or sell drugs, or directs others to those premises to

obtain drugs.”      United States v. Acosta, 534 F.3d 574, 591 (7th

Cir. 2008).

      In this case, Clark did not own or rent the premises, thus

eliminating the typical examples of a possessory interest in the

apartment.      However, there is evidence that she stayed overnight

at the Ocean View apartment regularly and had full access to the

apartment when she stayed there, including the portion of the

apartment that was used to store large quantities of drugs and

money.    Moreover, Clark had access to a firearm at the premises,

a weapon kept for protection due to the dangerous nature of the

                                     9
activities occurring there.           Thus, the issue distills to whether

plenary access equals “control” under these facts.

      It appears that there is no case law within this circuit

that speaks directly to this scenario, and the parties do not

offer any.       However, this Court has issued an unpublished case

that bears some relevance.            In United States v. Christian, the

Court found sufficient control such that § 2D1.1(b)(12) applied

even though the defendant did not own or lease the premises at

issue, where the defendant: (1) “traveled regularly between [the

apartment] and the place where he distributed drugs”; (2) “had a

key   to   the    apartment,    and    stayed    there   regularly    but   not

exclusively”; and, (3) “‘controlled’ a chest and a safe in the

master bedroom, which contained a great deal of money and drugs,

as well as two firearms.”              544 F. App’x 188, 191 (4th Cir.

2013).

      Notably, in many cases where the defendant did not own or

rent the premises, but control was deemed to exist for purposes

of § 2D1.1(b)(12), the defendant had a key to the premises.

See, e.g., United States v. Renteria-Saldana, 755 F.3d 856, 859

(8th Cir.), cert. denied, 135 S. Ct. 423, 190 L. Ed. 2d 307

(2014) (finding enhancement proper where the defendant did not

own or reside at the stash house, but exercised control over it

by possessing a key to the premises, paying the utility bills,

regularly    picking    up     drugs    there,    and    bringing    drug-sale

                                        10
proceeds    there       for    retrieval          by    other       conspirators);         United

States v. Jones, 778 F.3d 375, 385 (1st Cir. 2015) (finding

enhancement proper where the defendant did not own or rent the

premises because the defendant’s control was demonstrated by the

facts that he had a key to the premises, came and went at will,

and slept there whenever he pleased); but see United States v.

Evans,   826   F.3d       934,       938   (7th        Cir.    2016)     (noting       that   the

defendant    did    not       have    a    key,       but    nevertheless       finding       that

control existed).

     In the instant matter, the record is silent as to whether

Clark had a key to the Ocean View apartment or specifically

controlled any items within the apartment.                             In truth, there was

no   impetus    for      the     government            to     offer    evidence       on     these

particular points, whether at trial or at sentencing, because

the offenses of conviction did not require such proof and Clark

did not object to the § 2D1.1(b)(12) enhancement.                                 The silence

of the record on these points partially limits our analysis and

demonstrates    why      objections         in        the   trial     court     are    not    only

preferable     as   a     procedural        matter,           but   lead   to    a    different

standard of review.

     Ultimately,        we     find       that    the       trial     testimony       describing

Clark’s regular stays at the Ocean View apartment, her plenary

access thereto, and her integral participation in the rampant

drug activity therein is enough to confirm that she “controlled”

                                                 11
the premises and thus “maintained” it for drug-related purposes.

See U.S.S.G. § 2D1.1 cmt n. 17.                  The evidence established that

Clark:     (1)    delivered        drugs   to     the       apartment        on   multiple

occasions; (2) occupied the apartment with full knowledge of the

kilogram      quantities      of   cocaine      and    heroin,       drug-related        cash

proceeds, and a firearm stored there; (3) received drugs at the

apartment as compensation for her role in the scheme; (4) lodged

at   the      apartment       overnight    for        the    exclusive        purpose     of

advancing      the    drug    trafficking       business;         (5)     along   with   her

coconspirators, “stretched” drugs at the apartment to improve

the profits of the drug trade; (6) sought a larger firearm in

order    to    aid     in    controlling     access         and    activities      at    the

apartment; (7) made an additional delivery to the apartment and

stayed     there       for     “extended     periods”             after     one    of    her

coconspirators was arrested; and (8) devoted her activities at

the apartment solely to the drug distribution operation.

     Under       these      circumstances,      we     cannot       conclude      that   the

district court committed “clear” or “obvious” error by applying

the § 2D1.1(b)(12) enhancement.                 See Olano, 507 U.S. at 732–34.

Neither has Clark shown that the district court violated settled

law of the Supreme Court or this circuit.                           See Carthorne, 726

F.3d at 516.         The sentence is affirmed.

                                                                                  AFFIRMED



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