Establishing Sentencing Authority for Drug-Related Deaths: Application of U.S.S.G. §5K2.1 Despite Acquitted Conduct

Introduction

United States v. Javarus McKinney (11th Cir. Nov. 7, 2024) confronted the question whether a district court may apply an upward departure under U.S.S.G. § 5K2.1 (death resulted) at sentencing—even though a jury verdict expressly found that no death resulted from the underlying drug conspiracy.

Background & Parties:

  • Plaintiff-Appellee: United States of America
  • Defendant-Appellant: Javarus “Jody” McKinney
  • District Court: Southern District of Georgia (Judge RSB­CLR)
  • Circuit Court: Eleventh Circuit (Judges Jordan, Rosenbaum & Lagoa)
Key Legal Issue:
  1. Whether acquitted conduct—specifically an explicit jury finding that “death did not result” from the conspiracy—precludes a district court from imposing an upward departure for death under U.S.S.G. § 5K2.1.
  2. Whether the sentence remains substantively reasonable once the court states it would impose the same term regardless of guideline adjustments.

Summary of the Judgment

After a jury trial, McKinney was convicted of:

  • Count One: Conspiracy to distribute fentanyl (July 2020–Feb. 2021)
  • Count Three and Four: Distribution of fentanyl within 1,000 feet of a school
The jury expressly found on Count One that “death did not result” from the conspiracy. Nevertheless, at sentencing the district court applied an eight-level upward departure under U.S.S.G. § 5K2.1, concluding by a preponderance of the evidence that the drowning death of Sawyer Duckworth in August 2020 was a foreseeable and integral part of McKinney’s conspiracy. This raised his guideline range from 63–78 months to 121–151 months; the court then imposed 130 months. McKinney appealed.

The Eleventh Circuit:

  • Assumed, without deciding, that § 5K2.1 did not apply.
  • Reduced the guideline calculation back to an offense level of 22 (range 51–63 months).
  • Held the 130-month sentence was substantively reasonable under 18 U.S.C. § 3553(a) factors—especially given the court’s unequivocal statement that it would have imposed the same sentence regardless of guideline calculations.
  • Affirmed the sentence.

Analysis

1. Precedents Cited

  • United States v. Watts, 519 U.S. 148 (1997): Established that acquitted conduct may be considered at sentencing if proved by a preponderance of the evidence.
  • United States v. Sweeting, 933 F.2d 962 (11th Cir. 1991): Permits death-result departure under § 5K2.1 if death “resulted” from offense conduct.
  • United States v. Williams, 51 F.3d 1004 (11th Cir. 1995): Affirmed § 5K2.1 departure despite a jury verdict that “death did not result” from the crime.
  • United States v. Grushko, 50 F.4th 1 (11th Cir. 2022): Clarified that when a court states it would impose the same sentence absent guideline error, appellate review focuses on substantive reasonableness under § 3553(a).

2. Legal Reasoning

• Acquitted Conduct & Sentencing: The court applied Watts and Williams to hold that a jury’s explicit finding of “no death” does not bind the sentencing court if a preponderance of evidence supports a contrary finding. An acquittal only shows the jury did not find guilt beyond a reasonable doubt—it does not equate to proof of innocence.

• U.S.S.G. § 5K2.1 Departure: Under § 5K2.1, a district court may depart upward if “death resulted.” The government must prove the causation link by a preponderance. Here, medical-examiner testimony that fentanyl ingestion “directly led” to drowning, plus evidence of a continuing conspiracy supplying those pills, sufficed.

• Scope of Appellate Review: The Eleventh Circuit assumed arguendo that the § 5K2.1 departure was erroneous, then recalculated the guidelines at level 22 (range 51–63 months). Because the district court had declared it would impose 130 months regardless of guideline calculations, the appellate court confined its inquiry to “substantive reasonableness” under the § 3553(a) factors.

3. Impact

This decision reaffirms that:

  • District courts may consider acquitted conduct at sentencing where the preponderance standard is met, even if the jury explicitly found the conduct did not occur.
  • Section 5K2.1 is a viable tool to enhance sentences in drug-related deaths, reinforcing deterrence and public protection concerns.
  • Sentences declared to be the same “regardless of guideline calculations” will survive appellate challenge if substantively reasonable under § 3553(a).
Future defendants should note that explicit jury findings do not automatically immunize them from guideline departures based on acquitted conduct.

Complex Concepts Simplified

Preponderance of the Evidence
“More likely than not” standard—lower than “beyond a reasonable doubt.”
Acquitted Conduct
Behavior a jury finds insufficient to convict beyond a reasonable doubt, but which a sentencing court can still consider if proven by a preponderance.
Upward Departure vs. Variance
  • Departure: Adjustment above the applicable guideline range based on a specific aggravating factor not fully accounted for in the guidelines.
  • Variance: A non-guideline sentence imposed after considering the Section 3553(a) factors.
§ 3553(a) Factors
Statutory sentencing considerations including seriousness of offense, history of defendant, deterrence, public protection, and sentencing disparities.

Conclusion

United States v. McKinney clarifies that a district court may apply an upward departure for death under U.S.S.G. § 5K2.1—even in the face of a jury’s express acquittal on death results—so long as it finds causation by a preponderance of the evidence. Moreover, a sentence that the court unequivocally states it would impose regardless of guideline adjustments will be upheld on appeal if it falls within the broad range of substantive reasonableness under 18 U.S.C. § 3553(a). This ruling strengthens judicial authority to address the lethal consequences of fentanyl distribution and underscores the limited binding effect of jury acquittals on sentencing determinations.