10-2075-cr
United States v. Clark


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 8th day of December, two thousand eleven.

PRESENT: JOHN M. WALKER,
         REENA RAGGI,
         SUSAN L. CARNEY,
                   Circuit Judges.

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UNITED STATES OF AMERICA,
                                 Appellee,

                         v.                                              No. 10-2075-cr

ALAN B. CLARK,
                                 Defendant-Appellant.
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FOR APPELLANT:                   Steven Y. Yurowitz, Esq., New York, New York.

FOR APPELLEE:                    Wendy L. Fuller, Paul J. Van de Graaf, Assistant United States
                                 Attorneys, on behalf of Tristram J. Coffin, United States
                                 Attorney for the District of Vermont, Burlington, Vermont.

           Appeal from the United States District Court for the District of Vermont (Christina

C. Reiss, Judge).

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       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the amended judgment entered on May 14, 2010, is AFFIRMED.

       Defendant Alan B. Clark, who pleaded guilty to conspiracy to distribute 500 grams

or more of cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, appeals his 60-month

prison sentence, the mandated statutory minimum but a considerable variance from his

Guidelines range of 120 to 151 months. Clark submits that the district court erred in finding

him ineligible for safety valve relief pursuant to 18 U.S.C. § 3553(f) and U.S.S.G.

§ 5C1.2(a), based on (1) his failure truthfully to provide all information regarding his offense

conduct, see 18 U.S.C. § 3553(f)(5), and (2) his use of threats of violence “in connection

with” his offense, id. § 3553(f)(2). We assume the parties’ familiarity with the facts and the

record of prior proceedings, which we reference only as necessary to explain our decision

to affirm.

       We review the district court’s interpretation of the legal criteria for safety valve relief

de novo and its related factual findings for clear error. See United States v. Ortiz, 136 F.3d

882, 883 (2d Cir. 1997). Because we identify no error, let alone clear error, in the findings

supporting the district court’s determination that Clark was ineligible under § 3553(f)(5), we

need not here determine whether he was also ineligible under § 3553(f)(2).

       To qualify for relief from a statutorily mandated minimum sentence, a defendant bears

the burden of proving by a preponderance of the evidence that he has satisfied all five criteria

set forth in 18 U.S.C. § 3553(f). See United States v. Tang, 214 F.3d 365, 371 (2d Cir.

2000). The district court found that Clark failed to carry this burden with respect to

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§ 3553(f)(5) because his pre-sentence proffer statement minimized the quantity of drugs he

dealt in the course of the charged conspiracy in a way inconsistent with both his recorded

statements intercepted in the course of the conspiracy and his post-arrest admissions. The

recorded statements and admissions supported the Pre-Sentence Report finding, adopted by

the district court, that Clark’s offense conduct involved at least five kilograms of cocaine,

well above the approximately one kilogram he maintained in his proffer statement. On this

record, the district court acted well within its discretion in rejecting Clark’s explanation that

his earlier statements were self-serving exaggerations and in finding that Clark failed to carry

his preponderance burden with respect to § 3553(f)(5). See United States v. Conde, 178 F.3d

616, 620–21 (2d Cir. 1999).

       Because we identify no merit in Clark’s sentencing challenge, the district court’s

amended judgment is AFFIRMED.

                                            FOR THE COURT:
                                            CATHERINE O’HAGAN WOLFE, Clerk of Court




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