United States v. Terrance King ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0417n.06
No. 14-3826
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 08, 2015
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
TERRANCE J. KING, ) OHIO
)
Defendant-Appellant. )
*
BEFORE: McKEAGUE and DONALD, Circuit Judges; MATTICE, District Judge.
PER CURIAM. Terrance J. King, a federal prisoner, appeals the sentence imposed
following his guilty plea to charges of money laundering, submission of false claims, and filing a
false tax return. We affirm.
These charges arose from King’s false claims of minimal income in order to obtain
housing assistance and to avoid paying taxes while he was earning hundreds of thousands of
dollars through his roofing company, which obtained payment from property owners’ insurance
companies for questionable roofing repairs using shoddy materials and workmanship. King
entered into a written plea agreement wherein he pled guilty to three counts, with the government
dismissing eight others. The presentence report calculated the guidelines sentencing range at 46
*
The Honorable Harry S. Mattice, Jr., United States District Judge for the Eastern District
of Tennessee, sitting by designation.
No. 14-3826
United States v. King
to 57 months of imprisonment and $288,207.28 in restitution. At the sentencing hearing, defense
counsel argued for a sentence of home confinement to permit King to support his family and to
pay the remaining restitution, noting that King had already paid approximately $40,000.00. King
also asked the court to consider that his five children would miss him if he were imprisoned.
The prosecutor argued for a within-guidelines sentence, specifically questioning King’s claim of
family hardship on the ground that he had recently been convicted of pointing a gun at his wife
and shooting out the windows of her car. The district court discussed King’s lengthy and violent
criminal history, which included a recent conviction for domestic violence as well as several
assaults and aggravated robberies. The district court then concluded that the interests of
deterrence and protection of the public required a within-guidelines sentence of 48 months of
imprisonment. The court also ordered restitution as set forth in the presentence report, noting the
amount King had already paid; it also specifically ordered that a car, house, and life insurance
policy listed among King’s assets be liquidated for purposes of paying the restitution.
On appeal, King argues that the district court failed to consider the sentencing factors of
acceptance of responsibility and family hardship and erred in ordering liquidation of specific
assets to pay restitution. Because King did not object below, thereby denying the district court
an opportunity to address the alleged errors, we review these two challenges for plain error only.
See United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc).
First, the district court did not impose a plainly unreasonable sentence. King cites to
United States v. Tocco, 200 F.3d 401, 435 (6th Cir. 2000), in support of his argument that the
district court failed to consider his family hardship argument. Tocco held that extraordinary
family hardship can be a legitimate basis for reducing a sentence in exceptional cases. Id. King
also cites United States v. Gapinski, 561 F.3d 467, 474 (6th Cir. 2009), which held that the
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No. 14-3826
United States v. King
record must reflect that the district court considered a defendant’s non-frivolous arguments in
favor of a more lenient sentence. But no lengthy explanation of the rejection of this argument
was necessary, particularly because King received a within-guidelines sentence. See United
States v. Lapsins, 570 F.3d 758, 774 (6th Cir. 2009) (holding that a district court need not give
reasons for rejecting the defendant’s arguments for an alternate sentence). The district court may
well have considered King’s argument on this issue meritless when balanced against the
prosecutor’s argument that King actually posed a danger to his family based on his criminal
history. See id. In any event, nothing in the record suggests that the district court did not
consider the arguments made by both parties at the sentencing hearing, and that’s all that is
required. See Vonner, 516 F.3d at 388.
King also argues that the district court failed to consider his acceptance of responsibility.
To the extent he refers to his payment of $40,000 in restitution, the record shows that the district
court expressly addressed this. No other acceptance of responsibility is supported by the record.
In fact, King continued to downplay his responsibility for his actions by characterizing them as
mistakes and poor business decisions and by claiming that he tried to do the right thing. The
district court imposed a reasonable sentence.
Second, the district court did not plainly err by ordering the liquidation of specific assets
to satisfy the restitution in this case. The Mandatory Victims Restitution Act required the district
court to order restitution here, 18 U.S.C. § 3663A(a)(1), (c)(1), and gave it the power to “specify
in the restitution order the manner in which, and the schedule according to which, the restitution
is to be paid,” 18 U.S.C. § 3664(f)(2). Although we have questioned whether the predecessor to
that Act gave the district court the authority to order restitution from a specific source, United
States v. Comer, 93 F.3d 1271, 1281 (6th Cir. 1996), other courts have upheld ordering
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United States v. King
restitution from a specified source under the current law. E.g., United States v. Hosking,
567 F.3d 329, 334-35 (7th Cir. 2009); United States v. Hoover, 175 F.3d 564, 569 (7th Cir.
1999). We have not definitively held one way or the other. No plain error is therefore apparent.
See Puckett v. United States, 556 U.S. 129, 135 (2009). Finally, King argues that payment of
restitution from specific assets was not contemplated by the plea agreement. But the plea
agreement in this case discussed only the property to be forfeited; it did not prohibit the payment
of restitution from any of King’s other assets.
For these reasons, we hold that King has not established any plain error by the district
court. The judgment below is therefore affirmed.
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