
USCA1 Opinion

	




          June 8, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2041                                    UNITED STATES,                                      Appellee,                                          v.                                    BOOKER CLARK,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                        Cyr, Boudin and Lynch, Circuit Judges.                                               ______________                                 ____________________            Edward C. Roy, Roy & Cook on brief for appellant.            _____________  __________            Sheldon Whitehouse,  United  States Attorney,  Margaret E.  Curran            __________________                             ___________________        and Lawrence D.  Gaynor, Assistant United  States Attorneys, on  brief            ___________________        for appellee.                                  ____________________                                 ____________________                      Per  Curiam.    Defendant-appellant   Booker  Clark                      ___________            pleaded  guilty  to  conspiring  to  possess  and  distribute            cocaine  base and  to commit  various firearm  offenses.   He            appeals his sentence on  two grounds.  First, he  argues that            the district court erred in calculating the quantity of drugs            upon which  the sentence was based.  Second, Clark challenges            the  two-level enhancement for his  role in the offense which            the district  court  imposed pursuant  to    3B1.1(c) of  the            Sentencing  Guidelines.    "Because   appellant's  conviction            resulted  from  a guilty  plea, we  draw  the facts  from the            Presentence  Investigation Report (PSI) and the transcript of            the sentencing  hearing." United  States v. Garcia,  954 F.2d                                      ______________    ______            12, 14 (1st Cir. 1992).                 A. Drug Quantity                    _____________                 "A  narcotics  conspirator is  responsible not  only for            drugs  he actually  handled  or saw  but  also for  the  full            quantity of drugs that he  reasonably could have foreseen  to            be embraced by the conspiracy he joined." United States v. De                                                      _____________    __            La Cruz, 996 F.2d  1307, 1314 (1st Cir.) (citing  U.S.S.G.               _______            2D1.4, 2D1.1, 1B1.3 &  comment n. 1), cert. denied,  ___ U.S.                                                  ____  ______            ___, 114 S.Ct 356 (1993).  The district court's determination            of  the  quantity of  drugs  embraced by  the  conspiracy and            foreseeable by the defendant will  be reversed only for clear            error. De La Cruz, 996 F.2d at 1314.                   __________                 Clark argues on appeal that he could not have reasonably            foreseen  the amount of drugs involved in the August 21, 1993            transaction because there  is no evidence that he  had joined            the conspiracy by  that date.  He relies on  United States v.                                                         _____________            O'Campo, 973 F.2d 1015  (1st Cir. 1992), in which  this court            _______            held  that "the  base offense  level of  a co-conspirator  at            sentencing  should  reflect only  the  quantity  of drugs  he            reasonably foresees  it is  the object  of the conspiracy  to            distribute after he joins the conspiracy." Id. at 1026.                                                       ___                 In this  case,  however, the  district  court  expressly            found that the  government had proved  by a preponderance  of            the  evidence  that Clark  "was  part  of  the conspiracy  to            distribute  crack  cocaine  on  August  21,  1993  which  was            accomplished by [co-conspirators Terrence and Alfred Brooker]            in Newport."    Therefore,  O'Campo does not  apply, and  the                                        _______            only  question is whether it was clear error for the district            court to  conclude that  Clark had  joined the conspiracy  by            August 21, 1993.                 Less  than   a  week   passed  between  the   August  21            transaction  in  Newport and  the  August  27 transaction  in            Philadelphia.      At  Clark's  sentencing  hearing,  Matthew            Horace, an undercover agent working for the Federal Bureau of            Alcohol,   Tobacco   and  Firearms,   testified   that  Clark            identified himself as the  person in charge at the  August 27            transaction.  He referred to Alfred Brooker as "his man."  He            determined  who stayed at the  train station and  who went to                                         -3-            get the drugs.  Alfred Brooker reportedly told Horace that he            and Terrence Brooker worked for Clark in an organization that            distributed crack  cocaine and guns in  Philadelphia and that            he  went frequently  to Newport  to bring  crack and  guns to            Newport.   The district court found  this testimony credible.            "At sentencing,  credibility determinations are  the province            of  the district court."  United States v. Sepulveda, 15 F.3d                                      _____________    _________            1161, 1200 (1st Cir.  1993), cert. denied, ___ U.S.  ___, 114                                         ____  ______            S.Ct 2714 (1994).                 From this testimony, it would certainly be reasonable to            infer  that Clark had  joined the conspiracy  prior to August            21, 1993, and that -- as the self-proclaimed person in charge            -- he could reasonably have foreseen the sale by the Brookers            of 10.9 grams of cocaine base on that date.   This is not the            only reasonable inference.  Horace testified that he  did not            know the source  of the cocaine sold  on August 21,  1993 and            that the Brookers had told him that  Clark was not their only            source  of   cocaine,  at  least  as   of  September,  1993.1            Nonetheless, "where there is more than  one plausible view of            the  circumstances,  the  sentencing  court's   choice  among            supportable alternatives cannot be clearly erroneous." United                                                                   ______            States  v. Ruiz,  905 F.2d  499, 508  (1st Cir.  1990).   The            ______     ____                                            ____________________            1.  The district court found  that "the Brookers branched off            after that  [the August  21 transaction] in  September, 1993,            and  decided to freelance  and find cocaine  and weapons from            other sources").                                         -4-            district court's inclusion of the 10.9  grams of cocaine base            sold  on   August  21,   1993  as  "relevant   conduct"  when            determining  Clark's  guideline   sentencing  range  was  not            clearly erroneous.                 B. Role in the Offense                    ___________________                 Section 3B1.1(c) of the Guidelines provides, in relevant            part, that  defendant's offense  level shall be  increased by            two levels  if  he was  "an  organizer, leader,  manager,  or            supervisor."  Application of    3B1.1(c) is appropriate where            there  are   at  least  two  participants   in  the  criminal            enterprise and where  "the defendant exercised  control over,            or was  otherwise responsible  for organizing the  activities            of, at  least one other individual in  committing the crime."            United  States v. Akitoye, 923 F.2d 221, 227 (1st Cir. 1991).            ______________    _______            A  district  court's  role-in-the-offense   determination  is            reviewed only for clear error. Id.                                           ___                 The district  court's application of    3B1.1(c) in this            case was not  clearly erroneous.   There is  no dispute  that            more  than  one  person  was  involved  in  the  offenses  of            conviction.  With respect to Clark's exercise of control, the            record  supports  the  district  court's  finding  that  "the            Defendant  was a leader in the offenses that are the offenses            of conviction  in this  case."   Horace testified  that Clark            announced during  the August 27  transaction that  he was  in            charge.  Alfred  Brooker told Horace that the Brookers worked                                         -5-            for  Clark.    Clark  called  Alfred Brooker  "his  man"  and            directed him to stay  with Horace at the train  station while            Clark  went to  get the  drugs.   This evidence  supports the            district court's finding that Clark exercised control over at            least one  other person  in committing the  charged offenses.            There was no clear error.                 Accordingly, appellant's sentence  is affirmed  pursuant                                                       ________            to Loc. R. 27.1.                                                            -6-
