United States v. King ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
4-26-1995
United States v King
Precedential or Non-Precedential:
Docket 93-2087
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Recommended Citation
"United States v King" (1995). 1995 Decisions. Paper 112.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/112
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________________
NOS. 93-2087, 93-2088
___________________
UNITED STATES OF AMERICA,
Appellee
v.
JOCKO KING,
Appellant
______________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Cr. Nos. 92-632-1 and 93-40-08)
_______________________________________
Argued: March 9, 1995
Before: BECKER, SCIRICA, Circuit Judges, and
WOOD, Senior Circuit Judge*
(Filed April 26, l995 )
WILLIAM T. CANNON, ESQUIRE (ARGUED)
2540 PSFS Building
12 South 12th Street
Philadelphia, PA 19107
Attorney for Appellant
MICHAEL R. STILES, ESQUIRE
United States Attorney
WALTER S. BATTY, JR., ESQUIRE
United States Attorney
WILLIAM C. NUGENT, ESQUIRE (ARGUED)
United States Attorney
Room 1250
615 Chestnut Street
Philadelphia, PA 19106
*
. The Honorable Harlington Wood, Jr., United States Senior
Circuit Judge for the Seventh Circuit, sitting by designation.
Attorneys for Appellee
_______________________________
OPINION OF THE COURT
_______________________________
BECKER, Circuit Judge.
This is an appeal by defendant Jocko King from the
judgment of the district court in a criminal case following his
plea of guilty to drug and related firearms charges. The sole
issue on appeal is the propriety of the sentence of 480 months on
Counts 1, 2, 31, and 33 of Indictment No. 93-40-8, to which King
pled guilty,1 and more particularly the propriety of the district
court's statement that its decision to depart downward by three
levels under § 5K1.1 of the United States Sentencing Guidelines
(for substantial cooperation) was a function of its sentencing
"practice." Because the § 5K1.1 departure scheme requires the
exercise of discretion centering upon the nature and extent of
cooperation and does not admit of any sentencing "practice," we
vacate and remand.
I.
King was one of the leaders of a major cocaine
conspiracy. Based upon drug quantity, specific offense
characteristics, and role in the offense, his adjusted offense
level for purposes of guidelines sentencing was 48, which was
reduced to 45 because, as the government conceded, King accepted
1
. A concurrent sentence was imposed on No. 92-632-01, the other
count to which King pled guilty.
responsibility, and hence was entitled to a two- or three-level
downward adjustment (the court chose three). King also
cooperated with the government,2 resulting in a § 5K1.1
certification which enabled the court to depart downward from the
guidelines range. Although the court's discretion to depart
downward was not constrained by any mechanical formula, but only
the criteria set forth in § 5K1.1, see infra, and the exercise of
its discretion, the court handled the matter as follows:
Now, my practice, when I grant a § 5K1.1 motion,
is to go down three levels, three additional levels, on
the theory if Acceptance of Responsibility is worth
three levels, Substantial Cooperation should be worth
the same.
App. at 63 (emphasis added). This three-level departure reduced
the guideline level to 42 which, coupled with defendant's
criminal history score of VI, led to a guidelines range of 360
months to life. As noted, the court imposed a sentence of 480
months. King submits that the court erred as a matter of law in
tying its departure to a mechanical rule instead of exercising
its discretion. In King's view, this error necessitates vacatur
of the sentence and remand for reconsideration.
King was part of a multiple defendant drug conspiracy
involving two other leaders and numerous subordinates. The
government contends that, whatever the district court may have
said, its sentencing of the other defendants in this conspiracy
case demonstrates that it had no mechanical policy of departing
2
. Indeed, his cooperation was quite significant, and was
important in convicting his co-kingpins.
down three levels for substantial cooperation in response to the
government's § 5K1.1 motions. It is true that the court did
depart in quite different degrees with respect to co-defendants
Keith Ellis, Thomas Jones, Fred McDuffie, Gregory Miller, Charles
Ranier, William Richardson and Nathaniel Richardson. It is also
true that the court delivered a statement of reason for King's
sentence in which it explained its decision to depart downward
(only) three levels in response to the § 5K1.1 motion, despite
defendant's significant cooperation.3 Nevertheless, for the
3
. The statement was as follows:
This will constitute my sentence of 480 months,
being one-third more than the minimum sentence in the
applicable guideline range of 360 months to life.
This range is based upon a total offense level of
42, a Criminal History of VI, the latter being the
result of King's prior sentences, noted in the
presentence report, for a variety of convictions
detailed in the presentence report.
Based on the life history detailed in the
presentence report, King is manifestly a defendant
without the slightest concern for the value of human
life. At the age of 15, he apparently considered it
something of a sport to go to the roof of a house and
start firing indiscriminately, ultimately shooting
Hilda Young in the back, causing her death. He also
thought nothing five years later of punching his wife
so hard that she dropped one of his many children to
the floor. Besides injuring the head and body of the
infant, he beat up the mother of the child until she
lost consciousness. It also has not escaped our
attention that the quantity of cocaine base for which
King was responsible exceeded the maximum limit in §
2D1.1 by a factor of 15.6.
The only way to protect society from this man is
to be sure that he spends most of the rest of his life
in custody. It is, in fact, difficult to imagine who
else would qualify as more deserving of the maximum
reasons that follow, we do not believe that these factors are
sufficient to obviate the necessity of resentencing.
II.
The language of § 5K1.1 directs a sentencing court to
gauge the extent and quality of the defendant's cooperation in
deciding how many levels to depart downward in exchange for this
cooperation. Section 5K1.1 provides:
(a) The appropriate reduction shall be
determined by the court for reasons stated
that may include, but are not limited to,
consideration of the following:
(1) the court's evaluation of the
significance and usefulness of the
defendant's assistance, taking into
consideration the government's
evaluation of the assistance
rendered;
(2) the truthfulness,
completeness, and reliability of
any information or testimony
provided by the defendant;
(3) the nature and extent of the
defendant's assistance;
(4) any injury suffered, or any
danger or risk of injury to the
(..continued)
penalty than this man who presided over the
distribution of upwards of 7.5 million vials of crack
cocaine over a period of at least six years, enough to
supply each citizen of Philadelphia with five vials.
But for the Government's twelfth-hour motion under
U.S.S.G. § 5K1.1, the sentence would have been at the
maximum.
Under the circumstances, however, I have no
hesitation in imposing a sentence ten years longer than
the minimum in the offense level I have applied.
Order of Nov. 10, 1993 at 1-2 (footnote omitted).
defendant or his family resulting
from his assistance;
(5) the timeliness of the
defendant's assistance.
U.S.S.G. § 5K1.1 (emphasis added).
The Background Commentary to this provision under the
Application Note underscores the section's intent that sentencing
judges determine the appropriate departure by considering the
nature of each defendant's cooperation. The Application Note
explains:
A defendant's assistance to authorities in
the investigation of criminal activities has
been recognized in practice and by statute as
a mitigating sentencing factor. The nature,
extent, and significance of assistance can
involve a broad spectrum of conduct that must
be evaluated by the court on an individual
basis.
Application Note to U.S.S.G. § 5K1.1 (emphasis added). A proper
exercise of the district court's discretion under § 5K1.1,
therefore, involves an individualized qualitative examination of
the incidents of the defendant's cooperation, and would not seem
to admit of the use of sentencing "practices."
The sentencing jurisprudence also disapproves of
sentencing "practices" in favor of case-by-case consideration.
In United States v. Thompson, 483 F.2d 527 (3d Cir. 1973), for
example, we made it clear that it was unacceptable for a district
judge to sentence on the basis of a personal "sentencing policy."
And in United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990),
we prescribed an approach to departures which required the
sentencing court to consider a number of factors before deciding
to depart to a specific degree, again a non-mechanical process.
Corroborating this view is United States v. Johnson, 33 F.3d 8(5th Cir. 1994), where Chief Judge Politz explained:
The court is charged with conducting a
judicial inquiry into each individual case
before independently determining the
propriety and extent of any departure in the
imposition of sentence. While giving
appropriate weight to the government's
assessment and recommendation, the court must
consider all other factors relevant to this
inquiry.
Id. at 10 (footnote omitted). We agree. In Johnson, the court
vacated and remanded for resentencing in order to insure that
discretion was exercised.
III.
As we have noted, the able district judge in this case
provided a detailed rationale for its sentence, see supra n.3,
rescribing the court's statement. However, that statement does
not, as required by § 5K1.1, analyze the cooperation itself, as
opposed to the crime or the defendant. Moreover, the otherwise
detailed statement of reasons was delivered, by its own terms,
only to explain why the court sentenced defendant above the
minimum of the applicable guideline range of 360 months to life,
not to explain why the court chose the three-level adjustment.
We acknowledge that the district court did not follow
any "practice" in sentencing the co-defendants, but we cannot
simply assume that it was not doing so here or that it was in
fact exercising discretion in deciding to depart downwards by
three levels in response to the § 5K1.1 motion. Rather, we think
we must take the court at its own word; for this defendant at
least, it was apparently following some "practice."
In sum, because both the language of the provision and
the guideline case law clearly proscribe these sentencing
"practices" and instead mandate individualized, case-by-case
consideration of the extent and quality of a defendant's
cooperation in making downward departures under § 5K1.1, we
conclude that the district court erred as a matter of law in
what, at least on the face of the record, appears to have been a
mechanical application of the guidelines to this one defendant in
the conspiracy.4 The judgment will therefore be vacated and the
case remanded for resentencing consistent with this opinion. We
intimate no view as to how the district court should exercise its
discretion as to the § 5K1.1 departure on remand.
_____________________
4
. We thus have appellate jurisdiction. 18 U.S.C. § 3742(a)(1).