                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                  No. 09-4336
                                 _____________

                        UNITED STATES OF AMERICA

                                        v.

                          JAMES EDWARD CLARK,
                                 Appellant
                              _____________

                   Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                     (D.C. Criminal No. 2-08-cr-00508-001)
                    District Judge: Honorable Robert F. Kelly
                                 _____________

                   Submitted Under Third Circuit LAR 34.1(a)
                               March 14, 2011

         Before: RENDELL, BARRY and CHAGARES, Circuit Judges

                         (Opinion Filed March 24, 2011)
                                _____________

                           OPINION OF THE COURT
                               _____________

RENDELL, Circuit Judge.

      Defendant James Edward Clark was convicted by a jury of one count of

attempting to manufacture and possess with intent to distribute fifty grams or more

of methamphetamine in violation of 21 U.S.C. § 846, and one count of possession

of a listed chemical with intent to manufacture methamphetamine in violation of
21 U.S.C. § 841(c)(1). Clark had agreed with a confidential informant (“CI”) to

manufacture and distribute crystal methamphetamine. Clark supplied the CI with

what Clark believed to be the necessary chemicals from which the CI, if

compliant, would have manufactured crystal methamphetamine. Later, the CI

arranged for a reverse sting, during which Clark made an exchange with the CI for

what Clark thought was crystal methamphetamine, but was not. As a result, Clark

was sentenced to 360 months on count one, and 240 months on count two, to be

served concurrently. On appeal, Clark raises multiple issues relating to his

suppression motion, his conviction, and his sentence. We will affirm.

                             Suppression of Statements

       Clark challenges, on two separate bases, the District Court’s denial of his

motion to suppress statements he made during a custodial interrogation. Clark

contends that the Miranda warnings he received were insufficient and,

alternatively, that there was insufficient evidence for the District Court to find that

he knowingly and voluntarily waived his Miranda rights. We exercise plenary

review over the sufficiency of the warnings. United States v. Cruz, 910 F.2d 1072,

1078 (3d Cir. 1990). We also exercise plenary review over the ultimate question

of the voluntariness of a Miranda waiver, “although we review the historical facts

supporting that conclusion for clear error.” United States v. Pruden, 398 F.3d 241,

245-46 (3d Cir. 2005). The Miranda warnings given to Clark were sufficient and

there was no evidence supporting a lack of voluntariness of his waiver of rights.



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We find no merit to either of Clark’s contentions, and we affirm the District

Court’s denial of his motion to suppress.

                            Sufficiency of the Evidence

       Clark challenges the District Court’s denial of his motion for a judgment of

acquittal based on the insufficiency of the evidence. We review for plain error

because Clark failed to renew his motion after he presented his case, and he also

failed to make a timely motion after the jury returned its verdict. United States v.

Wright-Barker, 784 F.2d 161, 170 (3d Cir. 1986). Clark argues that there is not

enough evidence to prove he intended to produce methamphetamine because the

substance he provided to the informant was incapable of being turned into

methamphetamine. Impossibility, however, is not a defense to attempt. United

States v. Everett, 700 F.2d 900, 908 (3d Cir. 1983). We find no plain error.

                         Admission of Other Act Evidence

       Clark challenges the admission of Rule 404(b) “other act” evidence, which

revealed that he and the CI had previously participated in a methamphetamine

cook together, contending that the evidence failed to pass muster under the Rule

403 balancing test. We review a district court’s evidentiary rulings for abuse of

discretion. In re Paoli R.R. Yard PCB Litig., 113 F.3d 444, 453 (3d Cir.1997).

The District Court found that the evidence clarified the relationship between Clark

and the CI, and was relevant to Clark’s intent in dealing with the CI in relation to

the current charges. The Court gave appropriate limiting instructions to the jury.

We find no abuse of discretion.

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                                      Sentencing

       Clark levels multiple challenges to the validity of the sentence imposed by

the District Court. First, Clark challenges the Court’s authority to make factual

findings during a sentencing hearing without the aid of a jury; however, because

the sentence imposed by the Court did not exceed the statutory maximum, the

Court was free to make factual findings based on a preponderance of the

evidence.1 United States v. Grier, 475 F.3d 556, 565-66 (3d Cir. 2007) (en banc).

In the alternative, Clark challenges the sufficiency of the evidence underlying the

Court’s factual findings regarding the obstruction of justice enhancement and the

drug quantity used in calculating his offense level. We review Clark’s challenge

to the finding that he obstructed justice for plain error because he raises it for the

first time on appeal. United States v. Olano, 507 U.S. 725, 731-32 (1993). We

find no plain error.

       We review Clark’s challenge to the finding of the drug quantity for clear

error. United States v. Yeung, 241 F.3d 321, 322 (3d Cir. 2001). Where there is

no drug seizure, the sentencing judge is to approximate the quantity of the

controlled substance. U.S.S.G. § 2D1.1 app. note 12. Additionally, in a reverse

sting, the agreed-upon quantity of the controlled substance more accurately

reflects the scale of the offense . Id.. Here, the evidence shows that Clark

received one package represented to be about one pound of methamphetamine,


1
  Under 21 U.S.C. § 841(b)(1)(A)(viii), the statutory maximum sentence Clark can
receive is life imprisonment.
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and that Clark then requested and provided “ephedrine” for two additional pounds

of methamphetamine. We find no clear error.

       Finally, Clark challenges his sentence as unreasonable. We review the

sentence for both procedural and substantive reasonableness. United States v.

Tomko, 562 F.3d 558, 567 (3d Cir. 2009). “[W]e assess unreasonableness under

the abuse-of-discretion standard.” Id. at 564. Here, the District Court correctly

calculated the Guidelines range, it did not treat the guidelines as mandatory, it

considered all of the applicable § 3553(a) factors, it did not base the sentence on

clearly erroneous facts, and it adequately explained the chosen sentence. It is,

therefore, a procedurally reasonable sentence. Additionally, in the totality of the

circumstances, the imposition of a sentence at the low end of the Guidelines range

was substantively reasonable. We find that the District Court did not abuse its

discretion in imposing this sentence.

       In light of the above, we will affirm Clark’s convictions and sentence.




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