                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0808n.06
                           Filed: November 19, 2007

                                           No. 06-3747

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                         )
 UNITED STATES OF AMERICA,               )
                                         ) ON APPEAL FROM THE UNITED
       Plaintiff-Appellee,               ) STATES DISTRICT COURT FOR THE
                                         )   NORTHERN DISTRICT OF OHIO
 v.                                      )
                                         )
 JEFFREY CLARK,                          )
                                         )            OPINION
       Defendant-Appellant.              )
 _______________________________________ )


       Before: KEITH, GRIFFIN, Circuit Judges, and VAN TATENHOVE, District Judge.*


       VAN TATENHOVE, District Judge. Jeffrey Clark was charged with conspiracy to

distribute and possess with intent to distribute controlled substances in violation of 21 U.S.C. §§

841(a)(1) and 846, and possession with intent to distribute approximately one kilogram of cocaine

in violation of 21 U.S.C. § 841(a)(1). Clark was convicted on both counts and now challenges his

conviction and his sentence. Regarding his conviction, Clark argues that the evidence was

insufficient to convict him and that his federal prosecution should have been precluded on double

jeopardy grounds. As to his sentence, Clark first claims that the district court erred in finding him

responsible for at least 3.5 kilograms but less than 5 kilograms of cocaine and that the court failed



       *
         The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern
District of Kentucky, sitting by designation.
No. 06-3747
United States v. Clark

to set forth specific findings for its decision. Second, Clark maintains that the district court did not

properly consider the sentencing factors in 18 U.S.C. § 3553. For the reasons set forth below, the

Court will affirm Clark’s conviction and reverse and remand his sentence for additional findings

regarding the drug quantity.

                                           I. Background

       On March 10 or 11, 2003, Mark Denomy, a police officer from Oregon, Ohio, on assignment

with the Drug Enforcement Agency (“DEA”), received word from a jailhouse informant that Adrian

Maldonado was a supplier of drugs. Undercover Agent Denomy contacted Maldonado and agreed

to purchase a kilogram of cocaine at a Meijer store on March 13. Around 8:30 P.M. on that day,

Denomy met Maldonado inside Meijer, and arranged to meet in the parking lot to exchange the

cocaine. Eventually, a gray Dodge Dakota pulled up alongside Denomy’s vehicle and dropped

Maldonado off. Denomy could only see that a white male was driving the vehicle. Maldonado sold

Denomy approximately one kilogram of cocaine, agreeing that Denomy could pay him the next day.

Upon receiving the cocaine, Denomy returned directly to the Oregon Police Department. Denomy

continued a relationship with Maldonado, resulting in the later controlled purchase of other drugs,

including a pound of black tar heroine on April 22 and five kilograms of cocaine on May 2.

Maldonado was finally arrested and then charged on October 6, 2004.

       Also on the 13th, Agent Mark Apple, among other officers, provided surveillance and

security for Denomy. Agent Apple was employed with the Ohio Attorney General’s office, Bureau

of Criminal Investigation. He determined from the Dodge Dakota’s license number that it was from


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No. 06-3747
United States v. Clark

a leasing company in Toledo. After Denomy had completed his transaction and left the scene, Apple

observed what appeared to be a second drug transaction between the occupants of the Dakota and

the occupants of another vehicle in the nearby Applebee’s parking lot. After that second transaction

and with the knowledge that Maldonado lived in Fremont, Ohio, Apple and Officer St. Clair of the

Ottawa County drug task force headed toward Fremont. Apple alerted the Fremont police that they

were attempting to locate the Dakota. Apple, accompanied by a local Fremont police officer,

eventually spotted the vehicle on State Street and “called out a lane violation to the uniformed

[local] officers who made the stop.” Defendant Clark was driving. Local officers found a small

amount of loose cocaine in the car with Apple observing the stop from down the street. Maldonado

was released, but Clark was taken into custody. In the vehicle, the officers found a police scanner

set to local police frequencies and a Floyd County, Kentucky sheriff’s badge. The Floyd County

sheriff’s office denied knowing of Clark or Maldonado.

       Adrian Maldonado testified at Clark’s trial, subsequent to Maldonado entering a guilty plea

on drug/conspiracy charges but before being sentenced himself. His plea was contingent upon his

further complete cooperation with authorities. Maldonado testified that he met Clark in 1999 or

early 2000 through a mutual acquaintance and supplied Clark with “mostly cocaine” but also

marijuana:

       Q.      And let’s talk about the cocaine. How often would you distribute to Mr. Clark?
       A.      Sometimes it would be on a weekly basis; if not, every two weeks or so.
       Q.      How much would you give him at a time?
       A.      It would range from half an ounce to a couple ounces, four ounces of cocaine.
       Q.      And how long did this continue on until?
       A.      I’d say for a period of about two years or so.

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No. 06-3747
United States v. Clark

       ....
       Q.      So if I understand you correctly, you dealt with him from sometime in ’99 to 2000
               all the way to 2003; is that correct?
       A.      Yes.
       Q.      Can you estimate how much cocaine you would have sold him during that period of
               time?
       A.      Probably in excess of five keys.
       Q.      How about the marijuana?
       A.      Probably about 40 pounds.

The testimony also reveals that Maldonado would sometimes front—give drugs up front for later

payment—drugs to Clark.

       Regarding the events of March 13, Maldonado testified that, because his license was

suspended, he had asked Clark to drive him to Elkhart, Indiana, to pick up two kilograms of drugs,

one kilogram of which was later sold to Agent Denomy and the other sold in the Applebee’s parking

lot in accordance with Agent Apple’s observations that evening. In exchange for the ride,

Maldonado agreed to forgive some of Clark’s drug debt. Maldonado also testified that Clark brought

about a gram and a half of cocaine with him on the trip and used it on the way to Elkhart and back.

This testimony ostensibly accounts for the cocaine residue found in Clark’s vehicle by local

authorities in Fremont. On cross-examination, Maldonado estimated that he himself had distributed

about 100 kilograms of cocaine in the past.

       Clark was convicted by a jury on both counts. He now appeals his conviction and sentence.

                                          II. Analysis

A.     Sufficiency of the Evidence

       Clark argues that “there is insufficient evidence that [he] entered into an agreement with


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No. 06-3747
United States v. Clark

Maldonado to violate the drug laws and participate in the conspiracy.” Specifically, he contends that

Maldonado’s testimony cannot establish the conspiracy beyond a reasonable doubt.

       The Court reviews Clark’s challenge to the sufficiency of the evidence to determine “whether

after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” United States v.

Wang, 222 F.3d 234, 237 (6th Cir. 2000). In applying this standard, the Court makes a de novo

assessment when, like here, defendant properly moves for acquittal under Federal Rule of Criminal

Procedure 29 at trial. United States v. Kelley, 461 F.3d 817, 825 (6th Cir. 2006) (citations omitted);

see also United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006).

       Initially, Clark notes that Maldonado received a substantial reduction in his potential sentence

in exchange for cooperating with the Government, to include but not limited to testifying in Clark’s

trial. As an attack on Maldonado’s credibility, however, Clark’s argument is a non sequitur:

       “[a]ttacks on witness credibility are simple challenges to the quality of the
       government’s evidence and not the sufficiency of the evidence.” United States v.
       Sanchez, 928 F.2d 1450, 1457 (6th Cir. 1991). In assessing the sufficiency of the
       evidence, “we do not weigh the evidence, assess the credibility of the witnesses, or
       substitute our judgment for that of the jury.” United States v. Wright, 16 F.3d 1429,
       1440 (6th Cir. 1994). “[W]e draw all available inferences and resolve all issues of
       credibility in favor of the jury’s verdict.” United States v. Salgado, 250 F.3d 438,
       446 (6th Cir. 2001).

United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006).

       Next, Clark argues that the substance of Maldonado’s testimony, even if taken as true, cannot

establish Clark as a coconspirator. He asserts that Maldonado’s testimony merely establishes

association between the two and cites, for example, United States v. Hernandez, 896 F.2d 518, 519

                                                 -5-
No. 06-3747
United States v. Clark

(11th Cir. 1990). In Hernandez, the case against a co-defendant, Hector Giral, consisted of “Giral’s

presence in Aquino’s car and at the trunk when Aquino delivered the package to Garcia, Giral’s

walking away after catching Garcia’s eye, Giral’s talking to a dead phone, and Giral’s prior

conviction of cocaine possession.” Id. In Hernandez, the evidence against Giral stemmed solely

from surveillance.

       Here, Maldonado provided direct testimony implicating Clark in the conspiracy. Specifically,

he stated that Clark knew the reason for traveling to Elkhart and agreed to drive in exchange for

relief from drug debt. Furthermore, Maldonado’s testimony was consistent with the observations

of officers who witnessed the two on March 13. For instance, Mark Apple testified to observing

what he believed was a second drug transaction in the Applebee’s parking lot after the controlled sale

to Agent Denomy. Maldonado confirmed this observation with his testimony. He also explained

that Clark had brought his own personal supply of cocaine to use on the trip, thereby accounting for

the residue found in Clark’s vehicle when the two were stopped in Fremont.

       Thus, unlike the facts in Hernandez, the evidence against Clark did not stem solely from

surveillance. Instead, Maldonado’s direct testimony implicated Clark in the conspiracy. This Court

has held that “‘the uncorroborated testimony of an accomplice may support a conviction under

federal law.’” United States v. Frost, 914 F.2d 756, 762 (6th Cir. 1990) (quoting United States v.

Gallo, 763 F.2d 1504, 1518 (6th Cir. 1985), cert. denied, 475 U.S. 1017 (1986)). Accordingly, the

evidence in this case, reviewed in the light most favorable to the prosecution, is such that “any

rational trier of fact could have found the essential elements of the crime beyond a reasonable


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No. 06-3747
United States v. Clark

doubt.” Wang, 222 F.3d at 237.

B.     Double Jeopardy

       When stopping Clark, the local authorities in Fremont, Ohio, initiated a dog-sniff alert,

finding “a small zip-lock type [b]aggie approximately one and a half by two inches with some white

powder on the floor.” Officer Daniels, a local police officer at the scene of the stop, additionally

testified, “there was . . . also a little chunk [of] matter on the seat which also tested positive for

cocaine . . . .” At that point, Clark was arrested and charged with possession of the small amount

of residual cocaine found in his vehicle. Clark was subsequently tried in state court but ultimately

acquitted of this charge. He argues that this state court acquittal precludes his federal prosecution.1

       The Double Jeopardy Clause of the Fifth Amendment guarantees that no person shall be

“subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST . amend. V.

Usually, prosecution in both state court and federal court for offenses that would otherwise constitute

the same “offence” under the Fifth Amendment if tried successively in the same forum is

constitutional under the dual sovereignty doctrine. See Heath v. Alabama, 474 U.S. 82, 88-89

(1985). “The dual sovereignty doctrine holds that the double jeopardy clause ‘does not apply to suits


       1
         Clark filed a Motion to Dismiss the federal indictment on Fifth Amendment, double
jeopardy, grounds but failed to object to the Magistrate Judge’s Report and Recommendation
which recommended denying his motion. While ordinarily failure to object does foreclose
appeal, see United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981), “[i]n Thomas v. Arn, the
Supreme Court ‘emphasized that, because the [Walters] rule is a nonjurisdictional waiver
provision, the Court of Appeals may excuse the default in the interests of justice.’” Souter v.
Jones, 395 F.3d 577, 585 (6th Cir. 2005) (quoting 474 U.S. 140, 155 (1985)). Here, Clark cites a
“fractured client-attorney relationship” as cause, and the government does not raise the failure to
object as an issue. The default will, therefore, be excused in the interests of justice.

                                                 -7-
No. 06-3747
United States v. Clark

by separate sovereigns, even if both are criminal suits for the same offense.’” United States v.

Louisville Edible Oil Prods., Inc., 926 F.2d 584, 587 (6th Cir. 1991) (citation omitted).

       The Supreme Court suggested an extraordinarily limited exception to the dual sovereign

doctrine when it noted in dicta:

       [The record] does not support the claim that the State of Illinois in bringing its
       prosecution was merely a tool of the federal authorities, who thereby avoided the
       prohibition of the Fifth Amendment against a retrial of a federal prosecution after an
       acquittal. It does not sustain a conclusion that the state prosecution was a sham and
       a cover for a federal prosecution, and thereby in essential fact another federal
       prosecution.

Bartkus v. Illinois, 359 U.S. 121, 123-24 (1959). The Supreme Court articulated this “sham

prosecution” notion in the context of finding that a state prosecution for the same crime upon which

the defendant was acquitted in federal court was constitutional under the Fifth Amendment, as made

applicable to the states under the Fourteenth Amendment. Id. Clark argues that this exception to

the dual sovereignty doctrine applies in his case.

       Some courts have questioned whether the Supreme Court even intended to establish a sham

prosecution exception to the dual sovereignty doctrine. “The Bartkus Court’s failure to identify a

particular instance of a sham prosecution may mean that the exception does not exist.” United States

v. Angleton, 314 F.3d 767, 773-74 (5th Cir. 2002);2 see also United States v. Baptista-Rodriguez, 17


       2
        In the district court’s opinion in Angleton, the court could cite only two instances of
reported cases “in which circuit courts have remanded a case to the district court for further fact-
finding on the applicability of the Bartkus exception.” United States v. Angleton, 221 F. Supp.
2d 696, 720-21 (S.D. Tex. 2002). In one case, the Second Circuit expressed concern over a state
court conviction followed by a federal in rem forfeiture action, when there was evidence that “the
state would receive a very large percentage of any federal forfeiture proceeds.” Id. (citing United

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No. 06-3747
United States v. Clark

F.3d 1354, 1361 (11th Cir. 1994) (questioning whether there is a valid sham prosecution exception,

but simply ruling that if there is, the defendant in that case could not prevail). The Seventh Circuit

has been even more incredulous of a sham prosecution exception to the dual sovereignty doctrine:

       The case of Bartkus . . . supposedly recognized an exception to the dual sovereignty
       doctrine in situations where one sovereign’s prosecution serves as a tool for a second
       sovereign that previously prosecuted the defendant. We have questioned whether
       Bartkus truly meant to create such an exception, and we have uniformly rejected such
       claims [in which appellants argue the applicability of a Bartkus exception].

United States v. Brocksmith, 991 F.2d 1363, 1366 (7th Cir. 1993). Since Bartkus was decided in

1959, this Circuit has never ruled that a prosecution violated double jeopardy protections under the

“sham prosecution” theory.

       As evidence that Bartkus applies, Clark cites the cooperative nature of the Maldonado-Clark

conspiracy investigation between federal and state authorities. Investigatory cooperation, however,

is sanctioned in Bartkus itself. 359 U.S. at 122-23. The Fifth Circuit has set forth the standard for

at least theoretically invoking Bartkus:

       The key, however, is whether the separate sovereigns have made independent
       decisions to prosecute, or whether, instead, “one sovereign has essentially
       manipulated another sovereign into prosecuting,” or because the state and federal
       prosecutor are the same person. The facts of Bartkus demonstrate that the degree of
       cooperation between federal and state authorities cannot, by itself, constitute a sham
       prosecution.

Angleton, 314 F.3d at 774 (citations omitted). Nothing in the record suggests that Ohio authorities




States v. G.P.S. Automotive Corp., 66 F.3d 483, 496 (2d Cir. 1995)). In the second case, the
Ninth Circuit reversed the district court’s Bartkus-based dismissal of the indictment. Id. at 721
(citing United States v. Bernhardt, 831 F.2d 181, 183 (9th Cir. 1987)).

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No. 06-3747
United States v. Clark

did not make their own determinations regarding the prosecution of Clark for the residual amount

of cocaine found in his vehicle in Fremont. Additionally, this state prosecution regarding simple

possession was of a very different nature than the conspiracy charge against Clark in federal court.

Even if in the same forum, it would have been proper under double jeopardy jurisprudence to first

prosecute Clark for the “residual cocaine” possession and then for the conspiracy to possess and

distribute much greater quantities of cocaine as charged in the federal indictment:

       In determining whether a defendant has been subjected to successive prosecutions for
       the same offense, this Court applies the “same elements” test originally set forth in
       Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932).
       “That test asks whether each offense contains an element not contained in the other.
       A defendant will be considered placed in double jeopardy only if ‘every violation of
       one statute entails a violation of another.’”

Murr v. United States, 200 F.3d 895, 900-01 (6th Cir. 2000) (citations omitted). Here, the

Blockburger test is satisfied when comparing the charges and discrete allegations in the state

prosecution with the charges in the federal prosecution. Id. at 901.

       The entire weight of precedent demonstrates the chimeral nature of Bartkus’s “sham

prosecution” exception to the dual sovereignty doctrine. Consequently, Clark’s conviction as it

pertains to his double jeopardy challenge is affirmed.

C.     Drug Quantity Calculation

       At sentencing, Clark’s counsel argued that Clark should be held responsible only for the one

kilogram of cocaine sold to Agent Denomy as alleged as an overt act in Count I of the indictment.

This would place Clark’s base offense level at 26 under the Sentencing Guidelines. Guidelines

Manual § 2D1.1(7) (Nov. 2006) (at least 500 grams but less than 2 kilograms of cocaine). The

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No. 06-3747
United States v. Clark

Government argued that Clark should be held responsible for seven kilograms of cocaine as

recommended in the Presentence Investigation Report. This figure was derived by adding (1) the

one kilogram sold to Agent Denomy; (2) one kilogram sold in the Applebee’s parking lot after the

sale to Denomy (Agent Apple observed the transaction, though Maldonado testified as to the

quantity); and (3) five kilograms based on the testimony of Maldonado that he had supplied Clark

with “in excess of five keys” over the course of their relationship. Holding Clark responsible for

seven kilograms of cocaine would have placed him at a base offense level of 32 under the

Guidelines. Guidelines Manual § 2D1.1(4) (Nov. 2006) (at least 5 kilograms but less than 15

kilograms of cocaine). The district court adopted neither party’s position and found Clark

responsible for at least 3.5 kilograms but less than 5 kilograms, placing his base offense level at 30.

Guidelines Manual § 2D1.1(5) (Nov. 2006).

       After hearing argument from both parties, the judge stated: “It seems to me for a combination

of reasons, which I will articulate, that the appropriate subsection of 2D1.1(c) is 5, which is a level

30.” After commenting on letters submitted on Clark’s behalf, the judge continued, “I believe my

finding with regard to the level 30 disposes of the greater amount of your memorandum on

sentencing, Mr. [Defense Counsel]; am I correct?” Defense counsel responded, “[t]hat’s correct,

Your Honor, as it relates to the 2D1.1 determination.” The judge did not further elaborate on the

factual underpinnings of his determination.

       Clark maintains that the record only supports a finding by a preponderance of the evidence

that he be held responsible for the two kilograms that were sold by Maldonado on the night of March


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No. 06-3747
United States v. Clark

13 to Denomy and in the Applebee’s parking lot. This would place Clark at a base offense level of

28 under the Guidelines. Guidelines Manual § 2D1.1(6) (Nov. 2006). Clark argues: “It would

appear that the jury rejected Maldonado’s estimate that he distributed in excess of Five (5) kilograms

to the Appellant[.] The jury special verdict was [that] Clark was responsible for Five Hundred (500)

to Five Thousand (5,000) grams of cocaine.” We disagree that Clark may only be held responsible

for at most two kilograms and review for clear error. See United States v. Berry, 90 F.3d 148, 152

(6th Cir.), cert. denied, 519 U.S. 999, 136 L. Ed. 2d 389, 117 S. Ct. 497 (1996).

        Clark’s argument regarding consistency with the jury verdict fails for two reasons: first and

dispositively, “[i]t is well-settled in this circuit that the quantity of drugs involved is not an element

of the offense charged and that a sentencing judge is not bound by the jury’s findings regarding the

quantity . . . .” McCoy v. United States, Nos. 96-2374 and 96-2376, 1998 U.S. App. LEXIS 9703,

at *10 (6th Cir. May 11, 1998). Second, Clark’s argument presumes that the jury’s determination

necessarily excludes all past dealings between Clark and Maldonado, because two kilograms plus

the five kilograms from past dealings exceeds the outer scope of the jury’s special verdict. However,

an equally consistent explanation is that the jury found Clark responsible for the two kilograms and

then discounted Maldonado’s past-dealing estimate in deciding that Maldonado supplied Clark with

about three kilograms previously.

        The record suggests at least two scenarios under which Clark might reasonably be held

responsible for at least 3.5 kilograms but less than 5 kilograms of cocaine. Under either scenario,

Clark is responsible for the one kilogram sold to Agent Denomy, as he was convicted of possession


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No. 06-3747
United States v. Clark

with intent to distribute with regard to that kilogram. Next, Clark concedes that the judge could find

by a preponderance of the evidence that Clark is responsible for the kilogram sold in the Applebee’s

parking lot. If the district court were to so find, then Maldonado would only need to have supplied

Clark with 1.5 kilograms in the past for Clark to be responsible for a total of at least 3.5 kilograms.

If the district court were not to find Clark responsible for the “Applebee’s cocaine,” then Maldonado

would only need to have supplied Clark with 2.5 kilograms in the past to reach the base offense level

of 30. Either scenario provides for a heavy discount on Maldonado’s estimate that he provided Clark

with in excess of five kilograms in the past.3 As Maldonado could have been honestly mistaken in

making his estimate, the actual determination that Clark, in total, was responsible for at least 3.5

kilograms substantially errs on the side of caution in making an estimate. See United States v. Baro,

15 F.3d 563, 569 (6th Cir. 1994).

       While the Court might reasonably come to the conclusion that Clark is responsible for

between 3.5 and 5 kilograms of cocaine, the Court did not set forth any basis for actually doing so.

Accordingly, Clark also argues that the Court erred in not setting forth specific facts in the record

regarding the evidentiary foundation of its decision. The Sixth Circuit in United States v. Long

stated, “[t]he district court must set forth the evidence upon which it relies and make specific




       3
        As Maldonado’s testimony is competent evidence for determining Clark’s guilt beyond a
reasonable doubt (see supra, regarding sufficiency of the evidence), it too is competent evidence
for making a preponderance finding. See United States v. Pruitt, 156 F.3d 638, 647 (6th Cir.
1998), cert. denied, 119 S. Ct. 846 (1999).

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No. 06-3747
United States v. Clark

findings that are supported by a preponderance of the evidence.”4 190 F.3d 471, 478 (6th Cir. 1999);

see also United States v. Angle, 254 F.3d 514, 519 (4th Cir. 2001). In rejecting Clark’s contentions

to the contrary, we determined that Clark might be found responsible for more than two kilograms

of cocaine. However, the Court is left to speculate on what basis the district court in fact rested its

decision regarding drug quantity. This is particularly the case when the district court adopted neither

the Appellant’s position on drug quantity, nor the quantity range recommended in the Presentence

Investigation Report (the “Report”) and argued by the Government.

       In sentencing a defendant, this Circuit requires “literal compliance” with Federal Rule of

Criminal Procedure 32(i)(3)(B), which states, “[a]t sentencing, the court must—for any disputed

portion of the presentence report or other controverted matter—rule on the dispute or determine that

a ruling is unnecessary either because the matter will not affect sentencing, or because the court will

not consider the matter in sentencing[.]” United States v. Hurst, 228 F.3d 751, 760 (6th Cir. 2000)

(citations omitted). At sentencing, the district court directly asked defense counsel whether the

court’s “finding with regard to the level 30 disposes of the greater amount of [Clark’s] memorandum



       4
           For this proposition, the Long court cited United States v. Baro, 15 F.3d 563, 569 (6th
Cir. 1994). In Baro, the court did not espouse a per se rule on making specific findings. Rather,
in that case, the government successfully argued that the defendants should be responsible for 50,
rather than 49, kilograms of cocaine. The government argued that an inference of one additional
kilogram could be drawn from “testimony regarding travel by [associates who bought from
defendants], coupled with a pattern of kilogram-quantity sales of cocaine by the [defendants].”
Id. The court held, “the sentencing judge may not, without further findings, simply sentence a
defendant based on conjecture.” Id. The court directed that if the district court were to impose
responsibility for the one kilogram, it “should explicitly set forth the evidence on which it relies .
. . .” Id.

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United States v. Clark

on sentencing.” At that time, defense counsel had the opportunity to flesh out the precise underlying

facts on which the court based its decision but declined to do so. Nevertheless, while this colloquy

was arguably a ruling on Clark’s objections to the drug quantity as recommended in the Report, the

record is too ambiguous to demonstrate literal compliance with Rule 32, as no factual explanation,

however brief, accompanied the purported ruling. See, e.g., United States v. Orlando, 281 F.3d 586,

601 (6th Cir. 2002) (remand for resentencing for failure to identify particular evidence leading to a

dollar amount determination that the parties contested in a money laundering case). Case law

suggests that specific references to testimony may adequately serve in support of a judge’s ultimate

determination regarding drug quantities, but this also was not done at Appellant’s sentencing.

United States v. Wilson, 168 F.3d 916, 925 (6th Cir. 1999). Accordingly, the Court will remand for

resentencing.

        On remand, if the district court’s factual findings lead to the same conclusion that Clark

ought to be held responsible for at least 3.5 but less than 5 kilograms of cocaine, then it is sufficient

for the judge to state those findings on the record and reimpose the same sentence, though he is not

obliged to do so. Clark argues that the judge additionally erred by insufficiently considering the

sentencing factors of 18 U.S.C. § 3553(a). As discussed below, we disagree, and unless the

sentencing judge finds Clark responsible for an amount other than at least 3.5 kilograms but less than

5 kilograms, there is no need to revisit § 3553(a) on remand.

D.      Application of 18 U.S.C. § 3553(a) Factors.

        Clark argues that “the Court did only at most a cursory review of the factor’s set forth in 18


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No. 06-3747
United States v. Clark

U.S.C. 3553(a).” He claims that the district court did not consider, inter alia, “the nature and

circumstances of the offense” and argues that “[t]he Court did not make findings that the sentence

imposed would reflect the seriousness of the offense.” Clark argues that the court did not consider

that he suffers from bi-polar disorder and did not consider that two co-defendants received sentences

of 51 months (or 57 months) and 46 months. Even though those co-defendants entered into plea

agreements, Clark argues that his sentence of 108 months is disparate.

       Pursuant to the Supreme Court’s decision in Booker, the Sentencing Guidelines are advisory,

though the sentencing judge must “consult [the] Guidelines and take them into account when

sentencing.” United States v. Booker, 543 U.S. 220, 264 (2005). This Court reviews sentencing

decisions for unreasonableness. Id. In addition to requiring the consideration of the Guidelines and

policy statements of the Sentencing Commission, 18 U.S.C. § 3553(a) requires the consideration of

other factors, which include the “nature and circumstances of the offense and the history and

characteristics of the defendant;” “the need for the sentence imposed” to, inter alia, “reflect the

seriousness of the offense;” “the kinds of sentences available;” and “the need to avoid unwarranted

sentence disparities.”

       Subsequent to Booker, sentences that fall within the correctly-calculated Guidelines range

are presumptively reasonable in the Sixth Circuit, though this presumption is rebuttable. United

States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). The Supreme Court recently affirmed the use

of this appellate presumption in Rita v. United States, 551 U.S. ___, 127 S. Ct. 2456, 2459 (2007).

A sentencing court need not recite the § 3553 factors. Williams, 436 F.3d at 709; see also United


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No. 06-3747
United States v. Clark

States v. Till, 434 F.3d 880, 887 (6th Cir. 2006). Rather, “[t]he sentencing judge should set forth

enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned

basis for exercising his own legal decisionmaking authority.” Rita, 127 S. Ct. at 2468. “Unless a

party contests the Guidelines sentence generally under § 3553(a)—that is argues that the Guidelines

reflect an unsound judgment, or, for example, that they do not generally treat certain defendant

characteristics in the proper way—or argues for departure, the judge normally need say no more.”

Id.

       Assuming that Clark was responsible by a preponderance for at least 3.5 but less than 5

kilograms of cocaine, Clark’s sentence fell within the correct Guidelines range. The district court

began its analysis at an offense level of 30 with a Criminal History Category of III. The court

granted Clark a two-level reduction under the Guidelines for being a minor participant under the

Guidelines Manual § 3B1.2(b) (Nov. 2006). At an offense level of 28 with a category III criminal

history, the Guidelines range is 97 to 121 months. The court sentenced Clark in the middle of this

range at 108 months. Because the court sentenced Clark within the Guidelines range, the rebuttable

presumption of reasonableness applies, and we find that Clark has failed to overcome that

presumption.

       During the sentencing hearing, the district court noted review of the sentencing memorandum

submitted by Clark’s counsel. The court also noted the review of three letters submitted on behalf

of Clark and made specific comment regarding the letter submitted by Clark’s wife. The court heard

argument from Clark’s counsel, such as an explanation of the details of Clark’s criminal history, and


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United States v. Clark

heard statements from Clark himself. As noted, the district court agreed that Clark was entitled to

a two-point reduction for his role as a minor participant. This “role in the offense” reduction was

not recommended in the Presentence Investigation Report. The court specifically referenced §

3553(a) when imposing its sentence:

       It never gives – hardly ever gives a judge great pleasure to sentence anyone who has
       the capacity for being a productive citizen. But we judges are bound by the law, and
       we’re bound to follow that law. I’ve reviewed this case both under the guidelines,
       which I’ve just articulated, and Section 3553(a) of United States Code, Title 18.

       I am, as you know, Mr. Clark, familiar with this case, since it was on my docket and
       I served as the trial judge. I am familiar with your personal history. I believe that the
       sentence that I will impose within that guideline will reflect both the seriousness of
       the crime, protect the public from further such criminal activity, and deter others
       from the same.

       ....

       Pursuant to the Sentencing Reform Act of 1984 as amended, and upon consideration
       of Title 18, United States Code Section 3553(a), it is my judgment that the defendant,
       Jeffrey T. Clark, is hereby committed to the custody of the Bureau of Prisons to be
       imprisoned for a term of 108 months on each count of the indictment as to which a
       jury found him guilty. Such sentence is to be served concurrently. I request that the
       Bureau of Prisons give consideration to designating this defendant to the federal
       correctional institution at Milan, Michigan.

Finally, after outlining the provisions of supervised release subsequent to Clark’s imprisonment, the

court heard and granted defense counsel’s request to recommend that “the Bureau of Prisons [] offer

the defendant the opportunity for the intensive drug treatment program of 500 hours [at Milan,

Michigan].”

       With regard to § 3553(a), we find that Clark’s sentence is reasonable if Clark is responsible

for at least 3.5 kilograms but less than 5 kilograms of cocaine and that the district court preserved

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United States v. Clark

a sufficient record to make a finding of reasonableness pursuant to Williams and Rita. The district

court explicitly referenced § 3553(a) apart from the Guidelines. While the court did not proceed

factor by factor through the content of § 3553(a), the court indicated familiarity with and

consideration of Clark’s personal background, which is supported by the court’s references to the

Presentence Investigation Report and letters on Clark’s behalf and by the court hearing Clark’s

statements and the arguments of his counsel. The court made a recommendation that Clark be

housed at the Federal Correctional Institute at Milan, Michigan, and further recommended, upon

Appellant’s motion, that Clark be admitted to a drug treatment program therein. This Court has

specifically found that the recommendation of a prison facility with drug treatment capabilities is an

indication of a reasoned sentence. Williams, 436 F. 3d at 708 (citing 18 U.S.C. § 3553(a)(2)). While

Clark argues that a “sentence in the 63-78 month guideline range would adequately protect and

sufficiently punish the Defendant,” this is mere disagreement with the court’s decision. See United

States v. Jackson, 466 F.3d 537, 540 (6th Cir. 2006) (“The fact that the district court did not give the

defendant the exact sentence he sought is not a cognizable basis to appeal, particularly where the

district court followed the mandate of section 3553(a) in all relevant respects.”). The district court,

buttressed by the analytical work of the Sentencing Commission, expressly found that its sentence

would “reflect both the seriousness of the crime, protect the public from further such criminal

activity, and deter others from the same.” See also Rita, 127 S. Ct. at 2463 (noting that the mandate

of the Sentencing Commission is “to write Guidelines that will carry out” the objectives of §

3553(a)).


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United States v. Clark

        The district court’s judgments with regard to making calculations within the Guidelines

additionally demonstrate a reasoned consideration throughout the sentencing process. First, the court

rejected the Government’s argument, embodied in the Presentence Investigation Report, that Clark

ought to be held responsible for at least 5 kilograms but less than 15 kilograms of cocaine.

Guidelines Manual § 2D1.1(c) (Nov. 2006). Instead, the court held Clark responsible for at least 3.5

kilograms but less than 5 kilograms of cocaine. Second, the court granted Clark a two-point

reduction for his role as a minor participant in the offense without such a recommendation in the

Presentence Report.

        With respect to Clark’s co-defendants’ sentences, the disparity between the sentences of

Clark and his co-defendants is explained by the plea agreements entered into by the co-defendants.

Nonetheless, this Court has described 18 U.S.C. § 3553(a)(6)—which directs the courts to consider

“the need to avoid unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct”—as having a nationwide scope. This Court has, therefore,

stated that:

        reducing a defendant’s sentence to bring it in line with the sentences of co-conspirators also
        introduces a disparity between that defendant’s sentence and those of other similar
        defendants nationwide. United States v. LaSalle, 948 F.2d 215, 218 (6th Cir. 1991). In
        LaSalle, this court held that departing from the Guidelines “simply to eliminate a disparity
        as compared to his codefendants’ sentences is unreasonable.” Ibid.

United States v. Epley, 52 F.3d 571, 583-84 (6th Cir. 1995). While Epley is a pre-Booker case

considering downward departure under mandatory Guidelines, this Court has noted its persuasive

relevance post-Booker. United States v. Thompson, 218 Fed. Appx. 413, 417 (6th Cir. 2007).


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United States v. Clark

Finally, Clark does not discuss additional factors that may have been relevant to his co-defendants’

sentences, such as the extent of the co-defendants’ criminal histories as opposed to his own.

                                          III. Conclusion

       For the foregoing reasons, Clark’s conviction is affirmed; Clark’s sentence is vacated; and,

this matter is remanded for resentencing, at which time the district court shall set forth the factual

basis for any determinations regarding quantity of drugs.




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