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[NOT FOR PUBLICATION]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,

and Lawrence D. Gaynor, Assistant United

___________________
for appellee.

Margaret E. Cur
________________

States Attorneys, on

br

____________________

____________________

Per Curiam.
___________

Defendant-appellant

Booker

Clark

pleaded

guilty

to

cocaine

base and

conspiring

to commit

appeals his sentence on

to

possess

various firearm

two grounds.

and

distribute

offenses.

First, he

He

argues that

the district court erred in calculating the quantity of drugs

upon which

the

the sentence was based.

two-level enhancement for his

the district

Sentencing

resulted

court

Presentence

role in the offense which

imposed pursuant

Guidelines.

from

Second, Clark challenges

a guilty

"Because

plea, we

to

3B1.1(c) of

appellant's

draw

the facts

the

conviction

from the

Investigation Report (PSI) and the transcript of

the sentencing

hearing." United States v. Garcia,

______________
______

12, 14 (1st Cir. 1992).

A. Drug Quantity
_____________

954 F.2d

"A

drugs

narcotics

conspirator is

he actually

handled

quantity of drugs that he

responsible not

or saw

but

also for

only for

the

full

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

2D1.4, 2D1.1, 1B1.3 &

comment n. 1), cert. denied,

____ ______

___, 114 S.Ct 356 (1993).

of

the

quantity of

U.S.S.G.

drugs

___ U.S.

The district court's determination

embraced by

foreseeable by the defendant will

the

conspiracy and

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

the conspiracy by

that date.

O'Campo, 973 F.2d 1015

_______

held

that "the

sentencing

is no evidence that he

United States v.
_____________

(1st Cir. 1992), in which

base offense

should

He relies on

level of

reflect only

the

had joined

this court

a co-conspirator

quantity

of drugs

at

he

reasonably foresees

it is

the object

of the conspiracy

to

distribute after he joins the conspiracy." Id. at 1026.

___

In this

case,

found that the

the

evidence

distribute

however, the

district

government had proved

that Clark

crack

"was

part

on

August

cocaine

court

expressly

by a preponderance

of

of

to

the conspiracy

21,

1993

which

was

accomplished by [co-conspirators Terrence and Alfred Brooker]

in Newport."

only

Therefore,

O'Campo does not

_______

apply, and

the

question is whether it was clear error for the district

court to

conclude that

Clark had

joined the conspiracy

by

between

August

21

27 transaction

in

August 21, 1993.

Less

transaction

than

in

week

passed

Newport and

the

August

the

Philadelphia.

At

Clark's

sentencing

hearing,

Matthew

Horace, an undercover agent working for the Federal Bureau of

Alcohol,

Tobacco

and

identified himself as the

transaction.

determined

Firearms,

testified

person in charge at the

that

Clark

August 27

He referred to Alfred Brooker as "his man."

who stayed at the

train station and

-3-

He

who went to

get the drugs.

Alfred Brooker reportedly told Horace that he

and Terrence Brooker worked for Clark in an organization that

distributed crack

he

went frequently

Newport.

to Newport

Philadelphia and that

to bring

The district court found

"At sentencing,

of

cocaine and guns in

crack and

this testimony credible.

credibility determinations are

the district court."

1161, 1200 (1st Cir.

guns to

the province

United States v. Sepulveda, 15 F.3d

_____________
_________

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.

only reasonable inference.

know the source

Horace testified that he

of the cocaine sold

that the Brookers had told him that

source

of

cocaine,

at

least

on August 21,

circumstances,

the

as

sentencing

did not

1993 and

Clark was not their only

Nonetheless, "where there is more than

the

This is not the

of

September,

1993.1

one plausible view of

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

after that
and

[the August

decided to freelance

that "the Brookers branched off

21 transaction] in

September, 1993,

and find cocaine

and weapons from

other sources").

-4-

district court's inclusion of the 10.9

sold

on

determining

August

21,

Clark's

1993

guideline

clearly erroneous.

B. Role in the Offense

___________________

as

grams of cocaine base

"relevant

sentencing

conduct"

range

was

when

not

Section 3B1.1(c) of the Guidelines provides, in relevant

part, that

defendant's offense

two levels

if

supervisor."

there

are

he was

"an

level shall be

organizer, leader,

Application of

at

least

enterprise and where

two

increased by

manager,

or

3B1.1(c) is appropriate where

participants

in

"the defendant exercised

or was

otherwise responsible

of, at

least one other individual in

the

criminal

control over,

for organizing the

activities

committing the crime."

United States v. Akitoye, 923 F.2d 221, 227 (1st Cir. 1991).
______________
_______

district

court's

role-in-the-offense

determination

is

reviewed only for clear error. Id.

___

The district

case was not

court's application of

clearly erroneous.

There is

3B1.1(c) in this

no dispute

that

more

than

one

conviction.

record

person

in

the

offenses

of

the

district

court's

finding

that

"the

was a leader in the offenses that are the offenses

of conviction

in this

announced during

charge.

involved

With respect to Clark's exercise of control, the

supports

Defendant

was

Alfred

case."

the August 27

Horace testified

that Clark

transaction that

he was

in

Brooker told Horace that the Brookers worked

-5-

for

Clark.

Clark

directed him to stay

Clark

went to

called

Alfred Brooker

"his

with Horace at the train

get the

drugs.

This evidence

man"

and

station while

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

to Loc. R. 27.1.

is affirmed
________

pursuant

-6-