                                                                                                                           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Precedential or Non-Precedential: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).
