United States v. Frank King

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 18, 2022
• Docket: 21-1602
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0287n.06

No. 21-1602

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 18, 2022 UNITED STATES OF AMERICA, ) ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) THE UNITED STATES DISTRICT ) COURT FOR THE WESTERN ) DISTRICT OF MICHIGAN FRANK EDWARD KING, ) ) Defendant-Appellant. ) OPINION )

Before: NORRIS, SUHRHEINRICH, and CLAY, Circuit Judges.

PER CURIAM. Frank Edward King appeals the sentence that he received in the wake of

entering a guilty plea to possession with the intent to distribute methamphetamine, 21 U.S.C.

§ 841(a)(1), and to possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C.

§ 924(c)(1)(A)(i). In his view, the sentence was procedurally unreasonable because the district

court failed to explain precisely why it granted the government’s motion for a downward departure

for substantial assistance pursuant to U.S.S.G. § 5K1.1. The grant of the government’s motion, of

course, resulted in a lesser sentence for Mr. King, which perhaps accounts for defense counsel’s

decision not to raise any objections to the sentence imposed by the district court. (Page ID 148.)

Defendant pleaded guilty to the above-mentioned charges in 2021 without the benefit of a

plea agreement. However, he subsequently cooperated with the government in its ongoing

investigation of drug trafficking and prostitution. (Page ID 98.) Based upon that assistance, the No. 21-1602,United States v. King

government filed a motion for a two-level downward departure, which it supported in an

accompanying brief that outlined the extent and nature of defendant’s cooperation.

The district court conducted a sentencing hearing on September 28, 2021, during which it

granted the government’s motion for a two-level departure. (Page ID 138.) The judge did not ask

the government how it determined that a two-level departure was appropriate, nor did she discuss

any of the factors listed in U.S.S.G. § 5K1.1(a), such as “risk of injury to the defendant or his

family resulting from his assistance,” which a court may consider before ruling on a motion for a

downward departure based upon substantial assistance. The judge did note, however, that the two-

level reduction resulted in defendant’s advisory guidelines range falling to between 63 to 78

months of incarceration from a range of 77 to 96 months. After hearing from counsel and from the

defendant, the judge imposed a sentence of 63 months for the drug trafficking count and a

statutorily required sentence of 60 months imprisonment on the firearms count to be served

consecutively. At the conclusion of the hearing, the judge asked counsel if either had, “Any legal

objections to the sentence imposed?” (Page ID 148.) Both responded no.

The government contends that we lack jurisdiction to review the district court’s grant of a

downward departure pursuant to § 5K1.1. Indeed, this Court has observed that “the decisions

whether to depart and how much to depart are entirely committed to the district judge’s discretion.”

United States v. Jones, 417 F.3d 547, 550 (6th Cir. 2005) (citing U.S.S.G. § 5K1.1; United States

v. Gregory, 932 F.2d 1167, 1169 (6th Cir. 1991)). “Where, as in this case, the district court grants

a downward departure for substantial assistance and the defendant’s claim on appeal goes only to

the extent of the departure, this Court has no jurisdiction over the appeal.” Id. at 551 (collecting

cases).

2 No. 21-1602,United States v. King

As the parties recognize, there is an exception to this general rule: “This Court has

jurisdiction to review the denial of a downward departure where the district court was aware of its

authority to depart but was unaware of the full scope of this authority . . . .” United States v. Schray,

383 F.3d 430, 434 (6th Cir. 2003). Citing Schray, defendant argues that, though the district court

granted the government’s motion, it was unaware of the “full scope of its authority” as evidenced

by its failure to review the § 5K1.1(a) factors at sentencing or to provide a rationale for the scope

of its downward departure.

At the end of the day, the facts before us compel us to conclude that we lack jurisdiction to

review the district court’s decision. First, the court was aware that it had the authority to grant a

downward departure: it did so. Second, the factors listed in § 5K1.1(a) are, by its own terms, neither

exhaustive nor mandatory: “The appropriate reduction shall be determined by the court for reasons

stated that may include, but are not limited to, consideration of [the factors].” U.S.S.G. § 5K1.1(a)

(emphasis added). Third, defendant’s core complaint is with the extent of the departure, which is

not reviewable. Jones, 417 F.3d at 551. And, fourth, unlike in Schray, 383 F.3d at 433, the district

court expressed no reservations about the scope of its ability to depart downward.

The judgment is AFFIRMED.