                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0484n.06

                                            No. 08-4496
                                                                                           FILED
                           UNITED STATES COURT OF APPEALS                              Aug 06, 2010
                                FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                 )
                                                          )
       Plaintiff-Appellee,                                )
                                                          )
v.                                                        )   On Appeal from the United States
                                                          )   District Court for the Northern
JEFFREY T.CLARK,                                          )   District of Ohio
                                                          )
       Defendant-Appellant.                               )



Before: BOGGS, ROGERS, and COOK, Circuit Judges.

       BOGGS, Circuit Judge. Jeffrey Clark was arrested after a kilogram of cocaine switched

hands in an Applebee’s parking lot. He was later convicted of conspiracy to possess and distribute

cocaine, cocaine base, heroin, and marijuana, in violation of 21 U.S.C. §§ 841(a) and 846, and

possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a). For these crimes,

Clark was sentenced to 108 months of imprisonment. In United States v. Clark, 254 F. App’x 528

(6th Cir. 2007), we affirmed his convictions but vacated his sentence, holding that the district court

had failed to explain the factual basis for its conclusion that Clark was responsible for 3.5 to 5

kilograms of cocaine. On remand, the district court adhered to its original drug-quantity calculation

but reduced Clark’s sentence to 98 months.

       Clark now appeals his sentence for the second time, arguing that the district court again erred

in determining that he should be held accountable for 3.5 to 5 kilograms of cocaine. Additionally,

he argues that his sentence was procedurally unreasonable because the district court neglected to
No. 08-4496
United States v. Jeffrey Clark

consider a number of the arguments in his sentencing memorandum. For the following reasons, we

affirm Clark’s sentence.

                                                  I

       In deciding Clark’s first appeal, we delineated the facts underlying his two convictions as

follows:

       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 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,


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No. 08-4496
United States v. Jeffrey Clark

       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.

                                                ***

               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.




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No. 08-4496
United States v. Jeffrey Clark

       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.

Clark, 254 F. App’x at 529–31.

       At Clark’s initial sentencing hearing, one of the main issues was the quantity of drugs for

which he should be held responsible:

       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 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

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No. 08-4496
United States v. Jeffrey Clark

       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, 254 F. App’x at 534 (alterations in original).

       After settling the drug-quantity dispute, the district court concluded that Clark was eligible

for a two-level reduction under USSG §3B1.2(b) for being a minor participant in the conspiracy.

With the reduction, Clark’s total offense level was 28, which, in conjunction with a Criminal History

Category of III, yielded an advisory Guidelines range of 97 to 121 months. The district court

selected a sentence in the middle of the range and imposed a term of 108 months.

       Clark then appealed, challenging both his convictions and his sentence. As stated above, we

affirmed the convictions but took issue with the district court’s sentencing decision. Noting that the

district court had failed to articulate any factual basis for its drug-quantity determination, we

remanded for resentencing, instructing the district court to make specific findings in support of its

conclusion that Clark was responsible for 3.5 to 5 kilograms of cocaine. We also stated that, “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.” Clark, 254 F. App’x at 536.

       At Clark’s second sentencing hearing, the district court revisited its drug-quantity

determination, ultimately readopting its original conclusion. In addition, the district court found, of

its own volition, that Clark’s criminal history had been overstated at his initial sentencing hearing.

The district court opined that, while Clark’s criminal history score had been accurately calculated,

he had received several criminal history points for relatively minor offenses. Subtracting those

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No. 08-4496
United States v. Jeffrey Clark

points, the district court reduced Clark’s Criminal History Category from III to II, which resulted in

an advisory Guidelines range of 87 to 108 months. The district court picked once more from the

middle of the range, imposing a term of 98 months.

       This appeal followed.

                                                  II

                                                  A

       Clark first argues that the district court failed—yet again—to “set forth the factual basis for

any determinations regarding quantity of drugs.” Clark, 254 F. App’x at 539. This time, however,

he is wrong.

       In Clark’s initial appeal, our principal concern was that, “[w]hile the [district court] might

reasonably come to the conclusion that Clark is responsible for between 3.5 and 5 kilograms of

cocaine, [it] did not set forth any basis for actually doing so.” Id. at 535. Given the absence of any

specific findings whatsoever, as well as the fact that the amount of cocaine attributable to Clark was

in dispute, we held that the district court’s drug-quantity determination was insufficient under

Federal Rule of Criminal Procedure 32(i)(3)(B), which requires sentencing courts to rule on any

disputed portion of the presentence report that is material to the sentencing decision. Clark, 254 F.

App’x at 536; see United States v. Orlando, 281 F.3d 586, 601 (6th Cir. 2002) (holding that, to

comply with Rule 32(i)(3)(B), a district court should “refer to particular evidence” or “present . . .

more than general conclusions”). We also suggested that the district court had run afoul of our

decision in United States v. Long, 190 F.3d 471, 478 (6th Cir. 1999), which indicates that, when




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No. 08-4496
United States v. Jeffrey Clark

making a drug-quantity determination, a district court must set forth the evidence upon which it

relies and make specific findings. Clark, 254 F. App’x at 535.

       On remand, the district court explained its drug-quantity determination as follows:

       Let me first address the issue of drug quantities. It appears to me fairly simple to
       arrive at the drug quantities, which the [c]ourt did at the original sentencing of Mr.
       Clark. And here is the way in which I did it and failed to properly articulate it on the
       record. As I recall the evidence and testimony adduced at trial, Mr. Clark sold one
       kilogram to an undercover agent. An additional sale of one kilogram was witnessed
       by the agents while he was under surveillance at the Applebee’s parking lot; he was
       with Maldonado. That accounts for two kilograms. Adrian Maldonado testified with
       respect to at least, as I remember it, at least an additional five kilograms of
       transactions in conjunction with him; that is, between himself and Mr. Clark. That
       would go to seven. While the [c]ourt is not bound by the jury’s answer for Apprendi
       purposes, which was under the burden of proof of beyond a reasonable doubt, they
       concluded at least 500 milligrams [sic] of cocaine but less than five kilograms of
       cocaine. I, because of his involvement and his plea agreement, credited Mr.
       Maldonado’s testimony for purposes of sentencing. My finding by a preponderance
       of the evidence was that somewhere between an additional 1.5 and three kilograms
       can be attributed under that preponderance standard to this defendant, Jeffrey Clark.
       While I did find, as did the jury in part, Adrian Maldonado’s testimony credible, I
       will not accept it to the full extent that the government wishes me to and will find
       that the drug quantities are at least 3.5 kilograms but less than five kilograms.

       Reviewing de novo, see United States v. White, 492 F.3d 380, 414 (6th Cir. 2007), we find

that the district court’s explanation satisfies the requirements of Rule 32(i)(3)(B). To comply with

that rule, “the district court must actually find facts.” White, 492 F.3d at 416. “This strict

requirement helps to ensure that defendants are sentenced on the basis of accurate information and

provides a clear record for appellate courts, prison officials, and administrative agencies who may

later be involved in the case.” United States v. Tackett, 113 F.3d 603, 613–14 (6th Cir. 1997).

       Here, the district court has made the requisite findings. It explicitly found that Clark was

responsible for (a) 1 kilogram of cocaine sold to an undercover agent; (b) 1 kilogram of cocaine sold


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No. 08-4496
United States v. Jeffrey Clark

in an Applebee’s parking lot; and (c) an additional 1.5 to 3 kilograms of cocaine that Clark obtained

over the course of his dealings with Maldonado. The district court also specified the evidence upon

which it relied, namely, Maldonado’s testimony. Consequently, the district court clearly met its duty

to explain its drug-quantity determination. Additionally, to the extent that the decision in Long

independently required the district court to make specific findings and set forth the underlying

evidence, that requirement was also fulfilled.

                                                    B

        Clark’s also argues that the district court’s drug-quantity determination was not supported

by a preponderance of the evidence because the determination was based on a coconspirator’s

estimate. This argument carries no weight.

        A district court’s calculation of the drug quantity attributable to a given defendant is a factual

determination that we review for clear error. United States v. Presley, 349 F. App’x 22, 31 (6th Cir.

2009) (citing United States v. Olsen, 537 F.3d 660, 662 (6th Cir. 2008)). At sentencing, “[a] drug

quantity need only be established by a preponderance of the evidence.” United States v. Anderson,

526 F.3d 319, 326 (6th Cir. 2008). If the precise amount of drugs is uncertain, it may be estimated,

but the district court “must err on the side of caution.” United States v. Gardner, 417 F.3d 541, 546

(6th Cir. 2005). In reaching its decision, the district court may rely on the testimony of a

coconspirator to establish drug quantity. United States v. Pruitt, 156 F.3d 638, 647 (6th Cir. 1998).

This court defers to a district court’s decision to credit such testimony unless the decision is “without

foundation.” Ibid.




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No. 08-4496
United States v. Jeffrey Clark

       Here, the district court held Clark responsible for 3.5 to 5 kilograms of cocaine, basing its

determination on Maldonado’s testimony. The district court’s decision to credit that testimony rests

on a firm foundation: Maldonado testified under oath at Clark’s trial. See United States v. Zuleta-

Alvarez, 922 F.2d 33, 37 (1st Cir. 1990) (Statements made under oath bear “strong indicia of

reliability.”); see also Clark, 254 F. App’x at 535 n.3 (“As Maldonado’s testimony is competent

evidence for determining Clark’s guilt beyond a reasonable doubt . . . it too is competent evidence

for making a preponderance finding.”). Moreover, as the district court noted, Maldonado testified

pursuant to a plea agreement, which required him to tell the truth. In addition, “Maldonado’s

testimony was consistent with the observations of officers who witnessed the [drug transactions] on

March 13,” Clark, 254 F. App’x at 531, further buttressing Maldonado’s credibility. There was thus

ample reason for the district court to believe him, and therefore the district court did not err in

relying upon his testimony.

       It is also apparent that the district court exercised proper caution in estimating the quantity

of drugs for which Clark was responsible. At trial, Maldonado testified that, over the course of their

dealings, he had supplied Clark with approximately 5 kilograms of cocaine—not counting the two

kilograms transferred on March 13. Because Maldonado’s testimony involved an approximation,

the district court decided not to hold Clark responsible for the entire amount. Instead, the district

court placed the figure at 1.5 to 3 kilograms, discounting Maldonado’s estimate by 40 percent. By

shaving at least 2 kilograms off the total, the district court acted with due regard for the fact that

Maldonado may have inflated his guess when relating the amount of cocaine he had given to Clark.

See Clark, 254 F. App’x at 535 (“As Maldonado could have been honestly mistaken in making his


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No. 08-4496
United States v. Jeffrey Clark

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.”).

                                                  III

       Clark’s final argument is that his sentence was procedurally unreasonable because the district

court failed to address a number of his arguments for a lesser sentence. We disagree.

       Post-Booker, this court reviews sentences for reasonableness. United States v. Pearce, 531

F.3d 374, 384 (6th Cir. 2008). “Reasonableness review has two components: one procedural, the

other substantive.” United States v. Brissett, No. 09-4244, 2010 WL 1640934, at *2 (6th Cir. April

23, 2010). A sentence is procedurally unreasonable if it is the product of a significant procedural

error, such as: “failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence—including an

explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51

(2007). Likewise, a sentence is procedurally unreasonable if the district court fails to consider a

defendant’s arguments for a lower sentence. See United States v. Thomas, 498 F.3d 336, 340–41

(6th Cir. 2007).

       In the present case, there is an additional wrinkle to the analysis, given the fact that Clark was

resentenced under a limited remand. In Clark’s first appeal, we determined that the district court had

adequately considered the § 3553(a) factors before imposing Clark’s initial sentence of 108 months.1


       1
         That sentence was explained as being necessary to reflect “the seriousness of the crime,
protect the public from further such criminal activity, and deter others from the same.” Clark, 254
F. App’x at 538.

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No. 08-4496
United States v. Jeffrey Clark

See Clark, 254 F. App’x at 536. The only significant flaw in the district court’s sentencing decision

was the absence of a factual explanation for the conclusion that Clark was responsible for 3.5 to 5

kilograms of cocaine. Consequently, we remanded so that the district court could “set forth the

factual basis of any determinations regarding quantity of drugs.” Id. at 539. Because the district

court had already considered the § 3553(a) factors, we noted that, “unless the sentencing judge finds

Clark responsible for an amount [of cocaine] other than at least 3.5 kilograms but less than 5

kilograms, there is no need to revisit § 3553(a) on remand.” Id. at 536. Thus, it would appear that

the district court was under no obligation to consider Clark’s mitigation arguments, provided they

were not attacks on the previous drug-quantity determination.

       Assuming that the district court was under such an obligation, we must consider the district

court’s sentencing decision in light of the Supreme Court’s analysis in Rita v. United States, 551

U.S. 338 (2007). In Rita, the Supreme Court made clear that, when explaining a sentence, “[t]he

sentencing judge should set forth enough [of an explanation] to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Id. at 356. “[I]f a defendant raises a particular argument in support of

a lower sentence, the record must reflect that the district judge both considered the . . . argument and

explained the basis for rejecting it.” United States v. Petrus, 588 F.3d 347, 352 (6th Cir. 2009).

       Clark now argues that the district court’s explanation of his sentence was deficient because

the district court failed to address two of his arguments for a lesser sentence. Specifically, he claims

that the district court did not properly consider his argument that he deserved a lesser sentence on

account of his Myellodysplastic Syndrome, a condition “commonly known as pre-leukemia.”


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No. 08-4496
United States v. Jeffrey Clark

Appellant’s Br. at 22. Clark also claims that the district court “did not discuss at all the progress the

defendant made while in custody,” seemingly referring to his argument at sentencing that he had

undergone significant rehabilitation. Ibid.

        It is clear, however, that the district court did consider these arguments. At Clark’s second

sentencing hearing, the district court explicitly stated that it had “considered the defendant’s

presentence memorandum.” The district court then articulated its reasons for rejecting Clark’s

arguments. With respect to his medical condition, the district court stated: “[T]he medical staff has

. . . recommended to the Bureau of Prisons that Mr. Clark receive outpatient follow-up care by an

oncologist to monitor his myel[l]odysplastic syndrome. I find that none of that justifies a departure

or a downward variance under the applicable guideline for health.” Also, with respect to Clark’s

purported rehabilitation, the district court stated: “Nor do I believe his post original sentencing

activities do as well. I do not believe they represent anything more than a relatively intelligent young

man doing what he can to better himself.”2 As a result, the district court adequately responded to

Clark’s arguments for a shorter sentence.

                                                   IV

        For the foregoing reasons, we AFFIRM Clark’s sentence.




        2
         Of course, any discussion the district court may have made on this subject was a lagniappe
for the defendant. As this court has noted, a district court charged with resentencing a defendant is
“not required to consider any of [his] post-sentencing rehabilitative efforts.” United States v.
Monday, 218 F. App’x 419, 424 (6th Cir. 2007); see USSG §5K2.19 (“Post-sentencing rehabilitative
efforts, even if exceptional, undertaken by a defendant after imposition of a term of imprisonment
for the instant offense are not an appropriate basis for a downward departure when resentencing the
defendant for that offense.”).

                                                 - 12 -
