United States v. Ivan Clark , 932 F.3d 1064 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-2309
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Ivan Deandre Clark
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
____________
Submitted: April 15, 2019
Filed: July 31, 2019
____________
Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
____________
MELLOY, Circuit Judge.
Defendant Ivan Clark pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) and was sentenced to 137 months’ imprisonment.
At his sentencing hearing, the district court1 determined that Clark qualified as an
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
armed career criminal and calculated a base offense level of 34 with a criminal history
category VI. On appeal, Clark argues that the district court erred in making those
determinations. We affirm.
I. Background
On October 10, 2017, Clark’s wife filed a written report with the police stating
that Clark had twice pointed a revolver at her and threatened to shoot her. Several
days later, Clark’s wife reported a domestic disturbance and officers arrested Clark.
During the arrest, officers recovered the revolver. Clark was charged with being a
felon in possession of a firearm. Later, before a grand jury, Clark’s wife testified
about the event and told the grand jury that the revolver Clark was arrested with was
the same revolver he had pointed at her.
At his sentencing hearing, the district court determined that Clark was an armed
career criminal because he had three prior convictions for serious drug offenses that
were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).
In 1999, Clark was convicted in Illinois of conspiring to distribute cocaine. And in
2011, Clark was convicted in Iowa on two counts of distributing cocaine base (one
on July 25, 2011 and one on August 1, 2011). The district court also calculated a
base offense level of 34 with a criminal history category VI after finding that Clark
had used and possessed the revolver in connection with a crime of violence. See
U.S.S.G. § 4B1.4(b)(3)(A); id. § 4B1.4(c)(2). Specifically, the district court found,
based on Clark’s wife’s statements to the police and the grand jury, that Clark
displayed the revolver while assaulting his wife in violation of various Iowa Code
-2-
sections, including Iowa Code § 708.1(2)(c), which is a crime of violence. See
United States v. McGee, 890 F.3d 730, 736–37 (8th Cir. 2018).
Clark timely filed this appeal.
II. Discussion
Clark first argues that he should not be considered an armed career criminal
because his convictions for two counts of distributing cocaine base in 2011 were
charged in the same indictment along with a conspiracy-to-distribute count that was
ultimately dismissed.2 The conspiracy count, according to Clark, suggests that the
two distribution counts were part of a continuous course of conduct rather than
distinct criminal episodes, and therefore he has only two prior convictions for serious
drug offenses—the 1999 conspiracy count and the combined 2011 distribution
counts. “We review de novo whether a prior conviction is a predicate offense under
[18 U.S.C. § 924(e)(1)].” United States v. Van, 543 F.3d 963, 966 (8th Cir. 2008).
We addressed and rejected a similar argument in United States v. Melbie, 751
F.3d 586 (8th Cir. 2014). In Melbie, we considered whether a drug conspiracy
conviction and a possession-with-intent-to-deliver conviction “that occurred during
the period of the conspiracy and was related to the object of the conspiracy” were
“separate qualifying predicate offenses” under 18 U.S.C. § 924(e)(1). Id. at 587. We
held that the possession conviction was a separate predicate offense despite the fact
that it overlapped in time with the conspiracy conviction because it was “a punctuated
2
Clark also argues that he did not “receive[] sufficient notice at the time of his
original plea as to how pleading to two counts would affect him rather than pleading
simply to conspiracy.” But “[a] court is not required to inform a defendant of the
possibility of being sentenced more severely as a recidivist.” United States v.
Johnston, 220 F.3d 857, 862 (8th Cir. 2000). Clark’s argument on this point is
therefore meritless.
-3-
event within [the] conspiracy.” Id. at 589. In other words, “[a]lthough related to the
entire course of events in the ongoing conspiracy,” the possession charge was a
separate predicate event because it “formed a separate unit within the whole.” Id.
(quoting United States v. Johnston, 220 F.3d 857, 862 (8th Cir. 2000)). While in this
case, Clark was only charged with conspiracy rather than convicted, Melbie’s analysis
still applies. Under Melbie, Clark’s convictions for two counts of distributing
cocaine base are properly considered separate predicate offenses because they would
have been punctuated events within the conspiracy. Accordingly, Clark’s first
argument fails.
Clark next argues that his wife’s statements to the police and grand jury were
unsubstantiated. Consequently, he argues that the district court should not have relied
on them in concluding that he used or possessed the revolver in connection with a
crime of violence. “We review the factual findings underlying a sentence
enhancement for clear error.” United States v. Cook, 356 F.3d 913, 917 (8th Cir.
2004).
When finding sentencing facts, district courts apply a preponderance-of-the-
evidence standard. United States v. Mustafa, 695 F.3d 860, 862 (8th Cir. 2012) (per
curiam). In addition, “[a] district court has wide discretion at sentencing as to the
kind of information considered or its source.” United States v. Pratt, 553 F.3d 1165,
1170 (8th Cir. 2009) (citation omitted). This means that, “[i]n resolving any
reasonable dispute concerning a factor important to the sentencing determination, the
court may consider relevant information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy.” Id. (emphasis omitted)
(quoting U.S.S.G. § 6A1.3(a)). That relevant information may include “criminal
activity for which the defendant has not been prosecuted and ‘uncorroborated
hearsay, provided the [defendant is] given a chance to rebut or explain it.’” Id.
(alteration in original) (citation omitted). Here, Clark’s wife’s statements, though
-4-
hearsay, were made under circumstances indicating sufficient reliability, and Clark
offered no evidence to rebut them. Accordingly, the district court did not clearly err
in finding by a preponderance of the evidence that Clark used or possessed the
revolver in connection with a crime of violence.
III. Conclusion
For the foregoing reasons, we affirm the judgement of the district court.
______________________________
-5-