United States of America v. Richard A. Rok

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3181
UNITED STATES OF AMERICA
v.
RICHARD A. ROK,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 02-cr-0004J)
District Judge: Honorable D. Brooks Smith
Submitted Under Third Circuit LAR 34.1(a)
July 29, 2003
Before: SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges.
(Filed: August 6, 2003)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Officer Richard Rok was charged with and pled guilty to violating the civil rights
of an arrestee under 18 U.S.C. § 242, which prohibits the deprivation of civil rights under
color of law. The District Court sentenced Rok to 12 months imprisonment. Rok

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1 The District Court had jurisdiction pursuant to 28 U.S.C. § 3231, and we have
jurisdiction over the Court’s final orders under 28 U.S.C. § 1291.
2
appeals, arguing that the District Court erred in not granting him a downward departure
because, as a police officer, he is more susceptible to abuse in prison, and that the Court
incorrectly determined that 12 months was the proper sentence. We will affirm.1
Rok argues that the District Court abused its discretion in not granting him a
downward departure under 18 U.S.C. § 3553(b), U.S.S.G. § 5K2.0, because he is a police
officer and is therefore more susceptible to abuse in prison. Rok relies on Koon v. United
States, 518 U.S. 81 (1996), in which the Supreme Court upheld a discretionary downward
departure for the police officers who participated in the highly publicized beating of
Rodney King, based on the assertion that the officers were more likely to be targets of
abuse in prison. Id. at 112. As the Court’s refusal to grant a departure appears to be
based upon the legal determination that Koon did not apply to the situation before it, we
may review the Court’s ruling for abuse of discretion, reviewing its legal conclusions de
novo. United States v. Marin-Castaneda, 134 F.3d 551, 554 (3d Cir. 1998). We agree
with the District Court that Koon does not apply here because Rok did not present any
extenuating circumstances like those presented in Koon, beyond the mere fact that he was
a police officer, that would form the basis for such abuse. The Court did not abuse its
discretion in finding that this was not a sufficient basis for a departure.
Rok also challenges the District Court’s calculation of his sentence, contending

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that because the statutory maximum under § 242 is “not more than one year,” and his
applicable guideline range was 12 to 18 months, the two provisions are conflicting, and
the Court should have followed § 242 and imposed a sentence of less than one year. We
exercise plenary review over the District Court’s construction of the guidelines, United
States v. Higgins, 128 F.3d 138, 139 (3d Cir. 1997), and find no merit in Rok’s
contention, as his sentence of one year met the criteria of both the guideline range (12 to
18 months) and the statutory maximum (12 months).
For the foregoing reasons, we will affirm the judgment and sentence of the District
Court.

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TO THE CLERK OF COURT:
Please file the foregoing opinion.
/s/ Marjorie O. Rendell
Circuit Judge

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