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).
Before: Becker, Scirica, Circuit Judges, and Wood, Senior Circuit Judge*fn*
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,*fn1 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.
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 responsibility, and hence was entitled to a two- or three-level downward adjustment (the court chose three). King also cooperated with the government,*fn2 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 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.*fn3 Nevertheless, for the reasons that follow, we do not believe that these factors are sufficient to obviate the necessity of resentencing.
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 ...