United States v. Kevin Mack
2016 U.S. App. LEXIS 20456
| D.C. Cir. | 2016Background
- In 2012 an undercover MPD officer bought liquid PCP from Kevin Mack in two recorded transactions (July 23 and Sept. 5); MPD weighed the aggregated liquid vials and sent one-ounce samples to DEA, which confirmed PCP at 4.9% and 6.7% purities.
- A grand jury indicted Mack on two counts for distribution of PCP; he pleaded guilty to one count in July 2014; sentencing followed in July 2015 with a 77-month prison term and 36 months supervised release.
- Mack argued at sentencing for a time-served sentence, claiming selective prosecution, improper federal prosecution, and that the second sale was solicited by police solely to increase his Guideline range ("sentencing manipulation").
- The District Court previously denied motions to dismiss (rejecting inducement/entrapment and selective prosecution), held an evidentiary drug-quantity hearing, credited MPD remediation/weighing procedures, and attributed 222 grams to Mack for sentencing.
- At sentencing the judge explained the § 3553(a) factors and reasons for the sentence, but did not explicitly address the sentencing-manipulation argument; the judge asked counsel twice whether there were any further legal objections and defense counsel replied "no."
Issues
| Issue | Plaintiff's Argument (Mack) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Whether the district court failed to consider Mack's sentencing-manipulation argument | The second sale was engineered by police to inflate drug quantity and justify a longer federal sentence; court should impose time-served | The court had considered related inducement/entrapment claims earlier, and defense did not preserve an objection at sentencing when given opportunity | Forfeited; reviewed for plain error; no plain error affecting substantial rights given prior denial of inducement and counsel's silence |
| Whether the district court clearly erred in calculating drug quantity | Only the actual one-ounce DEA-tested samples (≈50 g) should count; MPD remediation/weighing is unreliable | MPD followed reliable remediation/weighing procedures, documented and used in similar cases; court may extrapolate from samples | No clear error; district court credited MPD testimony and procedures and found drug quantity proven by a preponderance of the evidence |
| Whether selective prosecution or improper forum (federal vs. state) warranted downward variance | Selective/arbitrary federal prosecution merited leniency | Prosecution based on drug quantity and defendant’s criminal history; no evidence of discriminatory purpose | District court considered and rejected selective-prosecution/forum arguments; sentence reasonable |
| Standard of review and preservation consequences | N/A — procedural posture | N/A | Errors not preserved are reviewed for plain error; appellate court applies abuse-of-discretion / clear-error rules accordingly |
Key Cases Cited
- United States v. Locke, 664 F.3d 353 (D.C. Cir. 2011) (district court must address nonfrivolous reasons for a different sentence)
- Rita v. United States, 551 U.S. 338 (2007) (sentencing judge should set forth enough to show consideration of arguments)
- United States v. Bigley, 786 F.3d 11 (D.C. Cir. 2015) (sentencing manipulation/entrapment claim requires consideration)
- United States v. McKeever, 824 F.3d 1113 (D.C. Cir. 2016) (recognizing sentencing entrapment/mitigation argument availability)
- Puckett v. United States, 556 U.S. 129 (2009) (contemporaneous-objection rule and plain-error standard)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (reasonable probability standard for showing impact on substantial rights)
- In re Sealed Case, 552 F.3d 841 (D.C. Cir. 2009) (presumptive correctness of district court factual findings)
- United States v. Burnett, 827 F.3d 1108 (D.C. Cir. 2016) (clear-error review of drug-quantity findings)