     Case: 10-31111       Document: 00512134704         Page: 1     Date Filed: 02/05/2013




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

                                                                            FILED
                                                                         February 5, 2013
                                     No. 10-31111
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

KENNETH CLARK, also known as Old School, also known as Country,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:09-CR-279-4


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       A jury found Kenneth Clark guilty of conspiring to possess with intent to
distribute five kilograms or more of cocaine, and he received a 265-month prison
sentence. He appeals his conviction and sentence.
       Clark contends that the district court improperly prohibited his attorney
from cross-examining Government witnesses about the possibility that their
testimony could result in reduction of their prison sentences. Thus, he argues,



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-31111

he was deprived of his ability to explore the witnesses’ biases in violation of his
Sixth Amendment right to confront witnesses against him.
      During the cross-examination of one of the Government’s witnesses, the
district court cautioned defense counsel that if he posed questions specifically
related to the witness providing “substantial assistance” to the Government, the
court would provide a detailed explanation to the jury of the law related to
substantial assistance. To the extent that the district court’s comments limited
counsel’s ability to cross-examine Government witnesses, we review the
limitation de novo to determine whether it violated the Sixth Amendment’s
Confrontation Clause. United States v. Diaz, 637 F.3d 592, 597 (5th Cir. 2011),
cert. denied, 132 S. Ct. 270 (2011). Though the district court may impose
reasonable limits on cross-examination based on, among other things, concern
about confusion of the issues, the court must allow defense counsel to elicit facts
from which the jury can draw inferences about the reliability of witnesses. Id.
The district court here explicitly permitted counsel to explore the reliability of
the Government’s witnesses by emphasizing that counsel was permitted to ask
questions related to a witness’s plea agreement and could argue that the witness
was a “cooperator” who was “trying to save his skin.” Indeed, immediately after
this discussion between counsel and the court, counsel asked the witness,
without any intervention by the Government or the court, whether he was
testifying in the hopes of securing a lower sentence, and the witness admitted
that he did hope for a reduced sentence. Though counsel did not seek to elicit
similar testimony from later witnesses, the district court did not prevent him
from doing so. Accordingly, there was no Confrontation Clause violation.
      Clark also argues that the evidence was insufficient to support his
conviction.   Specifically, he asserts that the evidence did not establish an
agreement between him and any other coconspirator and proved only that he
engaged in a series of buyer-seller transactions. Because Clark did not move for
a judgment of acquittal, we will reverse only if the Government’s evidence was

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                                  No. 10-31111

obviously insufficient. See United States v. Delgado, 672 F.3d 320, 331 (5th Cir.
2012) (en banc), cert. denied, 133 S. Ct. 525 (2012).
      Testimony from various witnesses at trial established that one of Clark’s
codefendants regularly directed him to deliver one to five kilogram quantities of
cocaine from Houston, Texas, to various cities in Louisiana and to deliver cash
from Louisiana back to Houston. Clark was paid $1,000 per kilogram of cocaine
that he transported. Government agents obtained photographic, video, and
audio footage surrounding several of Clark’s drug deliveries, which the
Government entered into evidence. This evidence was not obviously insufficient
for the jury to conclude that Clark entered into an agreement to violate drug
laws by knowingly participating in a plan to distribute drugs. See Delgado, 672
F.3d at 331, 333; see also United States v. Zamora, 661 F.3d 200, 209 (5th Cir.
2011), cert. denied, 132 S. Ct. 1771 (2012) (explaining that to show that the
defendant entered into an agreement sufficient to support a conspiracy
conviction, the Government need only show a “tacit, mutual agreement with
common purpose, design, and understanding” (internal quotation marks and
citation omitted)). Indeed, the volume of drugs that Clark transported—often
multiple kilograms at a time—supports an inference that he was a member of
a drug conspiracy. See Delgado, 672 F.3d at 334. Moreover, transporting
kilogram quantities of cocaine does not implicate the so-called buyer-seller
exception, which “prevents a single buy-sell agreement . . . from automatically
becoming a conspiracy to distribute drugs” and which “shields mere acquirers
and street-level users . . . from the more severe penalties reserved for
distributers.” Id. at 333. Instead, it evinces that Clark participated with others
in distributing large quantities of drugs.
      Challenging his sentence, Clark further argues that the district court
improperly held him accountable for crack cocaine rather than powder cocaine.
According to Clark, there was no basis for finding that it was reasonably
foreseeable to him that the powder cocaine he transported would be converted

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                                  No. 10-31111

into crack because, he contends, there was no evidence presented at trial that he
had any knowledge about what his codefendants did with the cocaine after he
delivered it. In the district court, Clark did not object to these findings on the
grounds that he now raises on appeal. Accordingly, we review for plain error.
See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (per
curiam).
      For sentencing purposes, a district court may convert a quantity of powder
cocaine to a comparable quantity of crack if it was “reasonably foreseeable” to
the defendant that the powder would ultimately be used to manufacture crack.
United States v. Burns, 526 F.3d 852, 859 (5th Cir. 2008).          Whether the
manufacture of crack was reasonably foreseeable is a question of fact. See id.
(explaining that a sentencing court’s findings of fact are reviewed for clear error
and concluding that the court’s decision to convert powder cocaine into a
comparable amount of crack cocaine for sentencing purposes was not clearly
erroneous). Because Clark failed to bring this issue to the district court’s
attention, he cannot succeed on appeal because “‘[q]uestions of fact capable of
resolution by the district court upon proper objection at sentencing can never
constitute plain error.’” United States v. Claiborne, 676 F.3d 434, 438 (5th Cir.
2012) (per curiam) (quoting United States v. Lopez, 923 F.2d 47, 50 (5th Cir.
1991) (per curiam)).
      Accordingly, the judgment of the district court is AFFIRMED.




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