United States v. Clark

United States Court of Appeals
Fifth Circuit
F I L E D
October 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60693
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN HOWELL CLARK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:03-CR-2LN-7
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:
John Howell Clark pleaded guilty to one charge of conspiracy
to distribute a controlled substance in violation of 21 U.S.C.
§ 846. This charge arose from Clark’s participation in a scheme
in which several individuals, including Clark, visited physicians
and obtained prescriptions for controlled substances. Joe
Callahan paid for these individuals’ prescriptions in exchange
for a share of their drugs, which he then unlawfully distributed
to others.
Clark objected to the presentence report and argued that the
probation officer had erroneously calculated the amount of drugs

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that was attributable to him for sentencing purposes. He
contended that some of the pills that he obtained were for his
personal consumption, and he argued that these pills should not
be used to calculate his sentence because they were not part of
the conspiracy. The district court overruled this objection and
sentenced Clark to 18 months in prison and a three-year term of
supervised release.
Clark now appeals his sentence. He contends that the
district court erred at sentencing by using the drugs that were
for his personal consumption to calculate his base offense level.
This court reviews a district court’s legal interpretation
of the Sentencing Guidelines de novo. United States v. Lowder,
148 F.3d 548, 552 (5th Cir. 1998). A district court’s findings
of fact, including its findings concerning the amount of drugs
for which a defendant should be held responsible, are reviewed
for clear error. Id.; United States v. Posada-Rios, 158 F.3d
832, 878 (5th Cir. 1998).
This court has not yet addressed whether the drug quantity
calculation used to determine the base offense level for a
conviction of conspiracy to distribute should include drugs a
defendant possessed for his personal consumption. However, every
other circuit that has considered this issue has held that a
district court properly considers the amount of drugs intended
for a defendant’s personal consumption when calculating the
sentence for a conviction involving a drug conspiracy. See

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United States v. Page, 232 F.3d 536, 542 (6th Cir. 2000); United
States v. Asch, 207 F.3d 1238, 1244 (10th Cir. 2000); United
States v. Stone, 139 F.3d 822, 826 (11th Cir. 1998); United
States v. Fregoso, 60 F.3d 1314, 1328-29 (8th Cir. 1995); United
States v. Snook, 60 F.3d 394, 396 (7th Cir. 1995); United States
v. Innamorati, 996 F.2d 456, 492 (1st Cir. 1993).
The logic of these cases is sound and is in accordance with
the Sentencing Guidelines. Accordingly, we join our sister
circuits and hold that a district court may properly consider
drug amounts intended for the defendant’s personal use when
calculating the base offense level for a defendant convicted of
participating in a drug conspiracy. The district court did not
err in sentencing Clark. The judgment of the district court is
AFFIRMED.

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