United States v. Derrick Crumpton

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0276n.06
Case No. 19-5325
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
May 18, 2020
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
DERRICK KENNEDY CRUMPTON, ) TENNESSEE
)
Defendant-Appellant. )
)
____________________________________/
Before: MERRITT, CLAY, and BUSH, Circuit Judges.
MERRITT, Circuit Judge. This is a direct criminal sentencing appeal by defendant
Derrick Crumpton challenging his 324-month sentence imposed after a guilty plea in a drug
conspiracy case. Crumpton had extensive and long-standing involvement in a large, violent gang,
known as the Gangster Disciples, that sold drugs and was implicated in several murders in a multi-
state area. Defendant specifically pleaded guilty to racketeering and conspiracy to possess with
intent to distribute cocaine and marijuana. He contends that the government acted
unconstitutionally or in bad faith when it refused to file a “substantial assistance” motion for a
downward departure under U.S.S.G. § 5K1.1. Defendant presents no evidence that the government
acted with an unconstitutional motive or in bad faith in refusing to file a substantial assistance
motion. To the contrary, the government gave good reasons for its decision not to file a substantial
Case No. 19-5325, United States v. Crumpton
assistance motion on behalf of defendant. After entering into the plea agreement with the
government and attesting to certain facts about his conduct and role in the conspiracy, defendant
denied or made conflicting statements about some of those same facts. Furthermore, the
defendant’s bad-faith argument is foreclosed by our circuit’s precedent.
Defendant also claims that the district court erred by failing to consider a downward
departure from the recommended sentence pursuant to U.S.S.G. § 5K2.0. However, the record
shows that the district court did consider, but rejected, defendant’s motion, and, in any event, the
district court varied downward 36 months from the low end of the guidelines range based on the
same substantial assistance. For the following reasons, we affirm the judgment of the district court.
I.
On April 22, 2016, a federal grand jury sitting in Memphis, Tennessee returned a 16-count
indictment against defendant and 15 others relating to their participation in the Gangster Disciples
criminal enterprise. The defendant is charged in Counts One and Two of the indictment. Count
One charges all 16 defendants with conspiracy to participate in a racketeering enterprise, in
violation of 18 U.S.C. § 1962(d). Count One alleged a pattern of racketeering consisting of
multiple offenses chargeable under Tennessee law, including attempted murder, kidnapping, and
robbery and offenses chargeable under federal law, including narcotics trafficking. Count One
also set forth at least 39 overt acts committed in furtherance of the racketeering conspiracy,
including approximate dates of the acts and the names of the persons involved. Defendant is
named in 13 of the overt acts listed in Count One, and it also details his role in the conspiracy.
Count Two of the indictment charges all 16 defendants with conspiracy to distribute and possess
with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(a), and 841(b)(1)(B). The count details the time period of the conspiracy and specifies
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that the conspiracy involved an agreement to distribute and possess with intent to distribute
controlled substances, including cocaine, cocaine base, and marijuana.
The defendant was arrested on May 4, 2016. Two weeks later, he pleaded not guilty. Over
a year later, on May 30, 2017, defendant changed his plea to guilty, pursuant to a written plea
agreement. The change in plea came about after defendant negotiated with the government
through a series of meetings governed by a proffer letter signed on May 25, 2016, outlining
defendant’s willingness to provide information and cooperate. By signing the letter, the parties
agreed that the defendant would “respond truthfully and completely to any and all questions posed
to him during the meeting.” In exchange for defendant’s truthful information and cooperation, the
government would consider a substantial-assistance motion pursuant to § 5K1.1. The letter stated:
[T]he government agrees to give full consideration to the statements made by [the
defendant] in determining whether a motion should be made pursuant to § 5K1.1
of the Sentencing Guidelines. However, your client understands that there has been
no promise or representation made by any agent or employee of the United States
that his statements constitute “substantial assistance” necessary for the government
to make a § 5K1.1 motion – or a motion pursuant to [18] U.S.C. § 3553(e) or Rule
35 of the Federal Rules of Criminal Procedure – on his behalf. Your client
understands and acknowledges that the determination as to whether his efforts
constitute “substantial assistance” will be made solely within the discretion of the
United States Attorney’s Office. . . . [Y]our client’s complete truthfulness and
candor are express material conditions to the undertakings of the government set
forth in this letter.
Proffer Letter dated May 25, 2016, at 2 (emphasis added).
As part of the plea agreement that was ultimately negotiated, the parties agreed to three
sentencing recommendations: (1) the amount of drugs for which defendant was responsible would
be limited to the equivalent of 1,000 kilograms but less than 3,000 kilograms of marijuana;1 (2) a
1
The drug amount agreed upon by the parties derives from defendant’s personal involvement as opposed to the
much larger amount initially calculated as reasonably foreseeable to the entire conspiracy.
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2-level enhancement pursuant to U.S.S.G. § 2D1.1 for possessing a dangerous weapon; and (3) a
4-level enhancement pursuant to U.S.S.G. § 3B1.1(b) for defendant’s “aggravated” role in the
conspiracy. Plea Agreement ¶ 7. The government also agreed to recommend a sentence at the
“low end” of the applicable guideline range. Id. ¶ 6.
The plea agreement does not address the filing of a substantial-assistance motion. Instead,
the practice in the Western District of Tennessee is to use the proffer letter described above to
outline the terms of any consideration for a downward departure motion by the government based
on a defendant’s cooperation. The government says that this practice is often followed at the
request of the defendant to help ensure the safety and protection of the defendant from retaliation
for cooperation. Appellee Br. at 10. The plea agreement attaches a “Factual Basis” document as
“Attachment A” that sets forth a detailed accounting of the facts of defendant’s involvement in the
conspiracy. Attachment A, which is also signed by defendant and the government, states in the
first sentence that it is part of the plea agreement.
On April 3, 2018, the defendant’s revised presentence investigation report was filed. The
revised report determined that the appropriate advisory guideline sentencing range was 360 months
to life. Report at 38. The presentence report recommended a sentence of 360 months, the lowest
sentence in the applicable range. The defendant’s sentencing hearing was set for June 8, 2018.
On June 7, 2018, the defendant and his counsel met with prosecutors. During that meeting, the
defendant denied participating in at least two of the overt acts listed in the Factual Basis document
at Attachment A to the plea agreement, the truth of which he had previously sworn to under oath.
Based on defendant’s denial of facts to which he had previously agreed, the government ended its
meeting with the defendant.
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The next day, June 8, 2018, at the sentencing hearing, the government informed the district
court of its concerns with the factual denials made by the defendant at the meeting the previous
day, and stated that it would not object if the defendant wished to withdraw his plea. The defendant
indicated that he did not wish to withdraw his plea and that his disagreement with parts of the
factual content in Attachment A to the plea agreement were “minor.” The court directed the parties
to work out their differences, and ordered defendant to file any motion to withdraw the plea within
two weeks.
Thereafter, the government informed defense counsel that it would be willing to amend
Attachment A to the plea agreement in order to ensure that both parties were in agreement as to
the facts underlying the offenses to which the defendant pleaded guilty. The government also
informed defendant that it did not believe that defendant had provided substantial assistance, and
it would not move for a downward departure pursuant to § 5K1.1 or Rule 35 of the Federal Rules
of Criminal Procedure. The government stated that because defendant now denied some of the
facts that formed the basis of his plea, it could no longer use him as a witness at trial. It also noted
that the information defendant had provided did not lead to any new arrests or indictments. Email
dated June 24, 2018, from Assistant United States Attorney Liquori to Defense Counsel
McWhirter.
On July 2, 2018, the defendant filed a sentencing memorandum in which he asked the
district court to review the government’s refusal to move for a sentencing reduction based on
substantial assistance, arguing that the plea agreement was “ambiguous.” Defendant also
requested the court to vary downward on its own discretion below the recommended sentence of
360 months. At the sentencing hearing on March 21, 2019, the district court found that the
government had not acted unconstitutionally or in bad faith when it refused to file a substantial-
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assistance motion on behalf of defendant, and it granted defendant’s request to vary downward by
imposing a below-guidelines sentence of 324 months. Mar. 21, 2019, Sent’g Hr’g Tr. at 65.
II.
Defendant presents two sentencing issues on appeal: (1) whether the government acted in
bad faith or unconstitutionally when it refused to make a motion for a downward departure under
U.S.S.G. § 5K1 due to defendant’s substantial assistance; and (2) whether the district court abused
its discretion when, despite the lack of a motion from the government, it did not grant a downward
departure pursuant to U.S.S.G. § 5K2 for that same substantial assistance.
A. Substantial-Assistance Motion Under U.S.S.G. § 5K1
Crumpton’s first argument is that the government’s refusal to make a § 5K1 motion on his
behalf was unconstitutional or in bad faith. United States Sentencing Guidelines § 5K1.1 states
that “[u]pon motion of the government stating that the defendant has provided substantial
assistance in the investigation or prosecution of another person who has committed an offense, the
court may depart from the guidelines.” U.S.S.G. § 5K1.1. Under the plain language of the
guideline, the filing of a downward-departure motion pursuant to § 5K1.1 by the United States is
a condition precedent to a departure pursuant to that motion. United States v. Lukse, 286 F.3d 906,
913 (6th Cir. 2002). Additionally, the proffer letter agreed to by the parties states that the decision
as to whether to file a substantial-assistance motion is “solely within the discretion of the United
States Attorney’s Office.”
Given the explicit language in the guideline and the proffer letter, the authority of the
district court to review the government’s refusal to file a substantial assistance motion is limited
to review only for unconstitutional motive, such as race or religion. Wade v. United States, 504
U.S. 181, 185-86 (1992). In Wade, the Supreme Court held as follows:
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[W]e hold that federal district courts have authority to review a prosecutor’s refusal
to file a substantial-assistance motion and to grant a remedy if they find that the
refusal was based on an unconstitutional motive. Thus, a defendant would be
entitled to relief if a prosecutor refused to file a substantial-assistance motion, say,
because of the defendant’s race or religion.
Id. Our case law is in accordance with Wade. See, e.g., United States v. Villareal, 491 F.3d 605,
608 (6th Cir. 2007); United States v. Gates, 461 F.3d 703, 710-11 (6th Cir. 2006). The district
court expressly stated that “the record is void of any unconstitutional motive.” Mar. 21, 2019,
Sent’g Hr’g Tr. at 8-9.
Defendant concedes the limitation on judicial review of the government’s refusal to file a
substantial-assistance motion. Appellant’s Br. at 6-7. His only assertion invoking an
unconstitutional motive is his statement, unsupported by any evidence, that the government’s
failure to make a § 5K1 motion “STRONGLY suggests an unconstitutional or bad faith motive.”
Id. at 10. He makes no allegation or even mention of race, religion, or other unconstitutional
reason for the government’s decision. We agree with the district court that defendant has not
demonstrated any unconstitutional motive by the government in refusing to file a substantial-
assistance motion on his behalf.
Defendant also argues that even if the government was not acting with an unconstitutional
motive, it acted in bad faith when it refused to file a § 5K1 motion. Even if this claim had factual
merit, and the government convincingly argues it does not, we have previously held in published
opinions that judges cannot second guess the government’s refusal to file a § 5K1 motion despite
bad-faith allegations; only an unconstitutional motive will do. E.g., Villareal, 491 F.3d at 608;
Gates, 461 F.3d 711; United States v. Rashid, 274 F.3d 407 , 417-18 (6th Cir. 2001); United States
v. Hawkins, 274 F.3d 420, 427-28 (6th Cir. 2001) (per curiam); United States v. Moore, 225 F.3d
637, 641 (6th Cir. 2000). Because one panel of this court cannot overrule the published decisions
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of another, Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985), we must
reject defendant’s bad-faith claim as well.
B. Defendant’s request that the district court downward depart under U.S.S.G. § 5K2
Defendant also appeals the district court’s refusal to grant a downward departure under
U.S.S.G. § 5K2.0. He contends on appeal that the district court improperly collapsed consideration
of his request for a downward departure under § 5K2 with his request that the government file a
motion for substantial assistance under § 5K1. Defendant also argues that his “extraordinary
acceptance of responsibility,” and his substantial assistance to the government, warrant further
downward departure by the district court.
We do not review a district court’s decision declining to impose a departure, or its failure
to depart to the extent requested by defendant, “unless the record shows that the district court was
unaware of, or did not understand, its discretion to make such a departure.” United States v.
Santillana, 540 F.3d 428, 431 (6th Cir. 2008). The record reflects that the district court did
consider such a departure and nevertheless rejected it, Mar. 21 Sent’g Hr’g Tr. at 7-10, satisfying
the requirements for putting the issue on the record, especially given how limited defendant’s
argument was on this point. See, e.g., Rita v. United States, 551 U.S. 338, 356 (2007) (“The
sentencing judge should set forth enough to satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking
authority.”); see also id. (“The appropriateness of brevity or length, conciseness or detail, when to
write, what to say, depends upon circumstances.”).
Furthermore, even if the district court had failed to consider its discretion to make a
downward departure under § 5K2.0, the error was harmless because the district court considered
the same conduct in making a downward variance under 18 U.S.C. § 3553. See Irizarry v. United
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States, 553 U.S. 708, 714-15 (2008) (noting the distinction between “departures,” meaning
deviations from an initial guidelines sentence that are expressly contemplated by the guidelines
themselves, and “variances,” which are further changes from the guidelines based on the factors
listed in 18 U.S.C. § 3553(a)); United States v. McBride, 434 F.3d 470, 475-75 (6th Cir. 2006)
(same). Taking into consideration the § 3553(a) factors, the sentencing judge varied downward
by 36 months from the low end of the guidelines range to impose a sentence of 324 months based
in part on defendant’s cooperation with the government, particularly in the early phases of his
dealings with the government. Mar. 21, 2019, Sent’g Hr’g Tr. at 65. The court specifically
mentioned defendant’s assistance to the government in imposing the sentence. The court also
noted the threats faced by defendant’s friends and family due to the defendant’s cooperation with
the government. Id. at 63-64. The district court then imposed the sentence it believed was
warranted after taking into consideration the § 3553(a) factors, including the factors that formed
the basis for defendant’s request for a downward departure. Under these circumstances, we can
be confident that any distinction between a departure and a variance did not affect the district
court’s choice of a sentence in light of the § 3553(a) factors, and any error on that front was
harmless. See, e.g., United States v. Herrera-Zuniga, 571 F.3d 568, 586-89 (6th Cir. 2009); United
States v. Erpenbeck, 532 F.3d 423, 441 (6th Cir. 2008).
For the forgoing reasons, we affirm the judgment of the district court.
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