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The Supreme Court's decision overturning a lower court ruling that ordered increased sentences for the two former Los Angeles police officers convicted in the 1991 beating of black motorist Rodney King. The justices said an appeals court was wrong to rule that former sergeant Stacey Koon and officer Laurence Powell should get new sentences ranging up to five years and 10 months in prison. The appeals court had held that the trial judge was too lenient in departing from federal sentencing guidelines and giving each of the two officers a 30-month prison sentence. But the Court said the trial judge was not entirely right either in the sentence he gave the two officers and it sent the case back to the courts in California for further hearings on the proper punishment. Koon, Powell and two other white officers were charged with using excessive force in the March 1991 beating of King, which a bystander had captured on videotape. After the officers were acquitted on state charges, the Justice Department then brought separate federal civil rights charges, and Koon and Powell were convicted of assault with a deadly weapon and excessive use of force.
SUPREME COURT OF THE UNITED STATES
Syllabus
KOON
v.
UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 94-1664. Argued February 20, 1996-Decided June 13, 1996*
After petitioners, Los Angeles police officers, were acquitted on state
charges of assault and excessive use of force in the beating of a
suspect during an arrest, they were convicted under 18 U. S. C.
Section 242 of violating the victim's constitutional rights under color
of law. Although the applicable United States Sentencing Guideline,
1992 USSG Section 2H1.4, indicated that they should be imprisoned
for 70 to 87 months, the District Court granted them two downward
departures from that range. The first was based on the victim's
misconduct, which contributed significantly to provoking the offense.
The second was based on a combination of four factors: (1) that
petitioners were unusually susceptible to abuse in prison; (2) that
petitioners would lose their jobs and be precluded from employment in
law enforcement; (3) that petitioners had been subject to successive
state and federal prosecutions; and (4) that petitioners posed a low risk
of recidivism. The sentencing range after the departures was 30 to 37
months, and the court sentenced each petitioner to 30 months. The
Ninth Circuit reviewed the departure decisions de novo and rejected all
of them.
Held:
1. An appellate court should not review de novo a decision to depart
from the Guideline sentencing range, but instead should ask whether
the sentencing court abused its discretion. Pp. 8-17.
(a) Although the Sentencing Reform Act of 1984 requires that a
district court impose a sentence within the applicable Guideline range
in an ordinary case, 18 U. S. C. Section 3553(a), it does not eliminate
all of the district court's traditional sentencing discretion. Rather, it
allows a departure from the range if the court finds ``there exists an
aggravating or mitigating circumstance of a kind, to a degree, not
adequately taken into consideration'' by the Sentencing Commission
in formulating the Guidelines, Section 3553(b). The Commission
states that it has formulated each Guideline to apply to a ``heartland''
of typical cases and that it did not "adequately . . . conside[r]" atypical
cases, 1995 USSG ch. 1, pt. A., intro. comment. 4(b). The
Commission prohibits consideration of a few factors, and it provides
guidance as to the factors that are likely to make a case atypical by
delineating certain of them as ``encouraged'' bases for departure and
others as ``discouraged'' bases for departure. Courts may depart on
the basis of an encouraged factor if the applicable Guideline does not
already take the factor into account. A court may depart on the basis
of a discouraged factor, or an encouraged factor already taken into
account, however, only if the factor is present to an exceptional degree
or in some other way makes the case different from the ordinary case.
If the Guidelines do not mention a factor, the court must, after
considering the structure and theory of relevant individual Guidelines
and the Guidelines as a whole, decide whether the factor is sufficiently
unusual to take the case out of the Guideline's heartland, bearing in
mind the Commission's expectation that departures based on factors
not mentioned in the Guidelines will be "highly infrequent." Pp. 8-
13.
(b) Although Section 3742 established a limited appellate review of
sentencing decisions, Section 3742(e)(4)'s direction to "give due
deference to the district court's application of the guidelines to the
facts" demonstrates that the Act was not intended to vest in appellate
courts wide-ranging authority over district court sentencing decisions.
See, e.g., Williams v. United States, 503 U. S. 193, 205. The
deference that is due depends on the nature of the question presented.
A departure decision will in most cases be due substantial deference,
for it embodies the sentencing court's traditional exercise of
discretion. See Mistretta v. United States, 488 U. S. 361, 367. To
determine if a departure is appropriate, the district court must make a
refined assessment of the many facts that bear on the outcome,
informed by its vantage point and day-to-day sentencing experience.
Whether a given factor is present to a degree not adequately
considered by the Commission, or whether a discouraged factor
nonetheless justifies departure because it is present in some unusual or
exceptional way, are matters determined in large part by comparison
with the facts of other Guidelines cases. District courts have an
institutional advantage over appellate courts in making these sorts of
determinations, especially given that they see so many more
Guidelines cases. Such considerations require adoption of the abuse-
of-discretion standard of review, not de novo review. See, e.g.,
Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 403. Pp. 13-17.
2. Because the Court of Appeals erred in rejecting certain of the
downward departure factors relied upon by the District Judge, the
foregoing principles require reversal of the appellate court's rulings in
significant part. Pp. 18-31.
(a) Victim misconduct is an encouraged basis for departure under
USSG Section 5K2.10, and the District Court did not abuse its
discretion in basing a departure on it. The court's analysis of this
departure factor showed a correct understanding in applying Section
2H1.4, the Guideline applicable to 18 U. S. C. Section 242, both as a
mechanical matter and in interpreting its heartland. As the court
recognized, Section 2H1.4 incorporates the Guideline for the offense
underlying the Section 242 violation, here Section 2A2.2 for
aggravated assault, and thus creates a Guideline range and a heartland
for aggravated assault committed under color of law. A downward
departure under Section 5K2.10 was justified because the punishment
prescribed by Section 2A2.2 contemplates unprovoked assaults, not
cases like this where what begins as legitimate force in response to
provocation becomes excessive. The Court of Appeals misinterpreted
the District Court to have found that the victim had been the but-for
cause of the crime, but not that he had provoked it; it also
misinterpreted the heartland of the applicable Guideline range by
concentrating on whether the victim's misconduct made this an
unusual case of excessive force. Pp. 18-23.
(b) This Court rejects the Government's contention that some of the
four considerations underlying the District Court's second downward
departure are impermissible departure factors under all circumstances.
For a court to conclude that a factor must never be considered would
be to usurp the policy-making authority that Congress vested in the
Commission, and 18 U. S. C. Section 3553(a)(2) does not compel
such a result. A court's examination of whether a factor can ever be
an appropriate basis for departure is limited to determining whether the
Commission has proscribed, as a categorical matter, that factor's
consideration. If the answer is no--as it will be most of the time--the
sentencing court must determine whether the factor, as occurring in
the particular circumstances, takes the case outside the applicable
Guideline's heartland. Pp. 23-26.
(c) The District Court abused its discretion in relying on petitioners'
collateral employment consequences as support for its second
departure. Because it is to be expected that a public official convicted
of using his governmental authority to violate a person's rights will
lose his or her job and be barred from similar employment in the
future, it must be concluded that the Commission adequately
considered these consequences in formulating 1992 USSG Section
2H1.4. Thus, the career loss factor, as it exists in this case, cannot
take the case out of Section 2H1.4's heartland. Pp. 26-28.
(d) The low likelihood of petitioners' recidivism was also an
inappropriate ground for departure, since the Commission specifically
addressed this factor in formulating the sentencing range for
petitioners' criminal history category. See Section 4A1.3. Pp. 28-
29.
(e) However, the District Court did not abuse its discretion in relying
upon susceptibility to abuse in prison and the burdens of successive
prosecutions. The District Court's finding that the case is unusual due
to petitioners exceptional susceptibility to abuse in prison is just the
sort of determination that must be accorded deference on appeal.
Moreover, although consideration of petitioners' successive
prosecutions could be incongruous with the dual responsibilities of
citizenship in our federal system, this Court cannot conclude the
District Court abused its discretion by considering that factor. Pp. 29-
30.
(f) Where a reviewing court concludes that a district court based a
departure on both valid and invalid factors, a remand is required
unless the reviewing court determines that the district court would
have imposed the same sentence absent reliance on the invalid factors.
Williams, supra, at 203. Because the District Court here stated that
none of four factors standing alone would justify its second departure,
it is not evident that the court would have imposed the same sentence
had it relied only on susceptibility to abuse and the hardship of
successive prosecutions. The Court of Appeals should therefore
remand the case to the District Court. Pp. 30-31. 34 F. 3d 1416,
affirmed in part, reversed in part, and remanded.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS,
JJ., joined, in all but Part IV-B-1 of which STEVENS, J., joined, and
in all but Part IV-B-3 of which SOUTER, GINSBURG, and
BREYER, JJ., joined. STEVENS, J., filed an opinion concurring in
part and dissenting in part. SOUTER, J. filed an opinion concurring
in part and dissenting in part, in which GINSBURG, J., joined.
BREYER, J., filed an opinion concurring in part and dissenting in
part, in which GINSBURG, J., joined.
*Together with No. 94-8842, Powell v. United States, also on
certiorari to the same court.
NOTICE: This opinion is subject to formal revision before publication
in the preliminary print of the United States Reports. Readers are
requested to notify the Reporter of Decisions, Supreme Court of the
United States, Wash-ington, D.C. 20543, of any typographical or
other formal errors, in order that corrections may be made before the
preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 94-1664 AND 94-8842
STACEY C. KOON, PETITIONER
94-1664 v.
UNITED STATES
LAURENCE M. POWELL, PETITIONER
94-8842 v.
UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
[June 13, 1996]
JUSTICE KENNEDY delivered the opinion of the Court.
The United States Sentencing Guidelines establish ranges of criminal
sentences for federal offenses and offenders. A district court must
impose a sentence within the applicable Guideline range, if it finds the
case to be a typical one. See 18 U. S. C. Section 3553(a). District
courts may depart from the Guideline range in certain circumstances,
however, see ibid., and here the District Court departed downward
eight levels. The Court of Appeals for the Ninth Circuit rejected the
District Court's departure rulings, and, over the published objection of
nine of its judges, declined to rehear the case en banc. In this case we
explore the appropriate standards of appellate review of a district
court's decision to depart from the Guidelines.
The petitioners' guilt has been established, and we are concerned here
only with the sentencing determinations made by the District Court
and Court of Appeals. A sentencing court's departure decisions are
based on the facts of the case, however, so we must set forth the
details of the crime at some length.
On the evening of March 2, 1991, Rodney King and two of his
friends sat in King's wife's car in Altadena, California, a city in Los
Angeles County, and drank malt liquor for a number of hours. Then,
with King driving, they left Altadena via a major freeway. King was
intoxicated.
California Highway Patrol officers observed King's car traveling at a
speed they estimated to be in excess of 100 m.p.h. The officers
followed King with red lights and sirens activated and ordered him by
loudspeaker to pull over, but he continued to drive. The Highway
Patrol officers called on the radio for help. Units of the Los Angeles
Police Department joined in the pursuit, one of them manned by
petitioner Laurence Powell and his trainee, Timothy Wind.
King left the freeway, and after a chase of about eight miles, stopped
at an entrance to a recreation area. The officers ordered King and his
two passengers to exit the car and to assume a felony prone position--
that is, to lie on their stomachs with legs spread and arms behind their
backs. King's two friends complied. King, too, got out of the car
but did not lie down. Petitioner Stacey Koon arrived, at once
followed by Ted Briseno and Roland Solano. All were officers of the
Los Angeles Police Department, and as sergeant, Koon took charge.
The officers again ordered King to assume the felony prone position.
King got on his hands and knees but did not lie down. Officers
Powell, Wind, Briseno and Solano tried to force King down, but
King resisted and became combative, so the officers retreated. Koon
then fired taser darts (designed to stun a combative suspect) into King.
The events that occurred next were captured on videotape by a
bystander. As the videotape begins, it shows that King rose from the
ground and charged toward Officer Powell. Powell took a step and
used his baton to strike King on the side of his head. King fell to the
ground. From the 18th to the 30th second on the videotape, King
attempted to rise, but Powell and Wind each struck him with their
batons to prevent him from doing so. From the 35th to the 51st
second, Powell administered repeated blows to King's lower
extremities; one of the blows fractured King's leg. At the 55th
second, Powell struck King on the chest, and King rolled over and lay
prone. At that point, the officers stepped back and observed King for
about 10 seconds. Powell began to reach for his handcuffs. (At the
sentencing phase, the District Court found that Powell no longer
perceived King to be a threat at this point).
At one-minute-five-seconds (1:05) on the videotape, Briseno, in the
District Court's words, "stomped" on King's upper back or neck.
King's body writhed in response. At 1:07, Powell and Wind again
began to strike King with a series of baton blows, and Wind kicked
him in the upper thoracic or cervical area six times until 1:26. At
about 1:29, King put his hands behind his back and was handcuffed.
Where the baton blows fell and the intentions of King and the officers
at various points were contested at trial, but, as noted, petitioners'
guilt has been established.
Powell radioed for an ambulance. He sent two messages over a
communications network to the other officers that said "`ooops'" and
"`I havent [sic] beaten anyone this bad in a long time.'" 34 F. 3d
1416, 1425 (CA9 1994). Koon sent a message to the police station
that said "`U[nit] just had a big time use of force. . . . Tased and beat
the suspect of CHP pursuit big time.'" Id., at 1425.
King was taken to a hospital where he was treated for a fractured leg,
multiple facial fractures, and numerous bruises and contusions.
Learning that King worked at Dodger Stadium, Powell said to King:
"`We played a little ball tonight, didn't we Rodney? . . . You know,
we played a little ball, we played a little hardball tonight, we hit quite a
few home runs. . . . Yes, we played a little ball and you lost and we
won.'" Ibid.
Koon, Powell, Briseno, and Wind were tried in state court on charges
of assault with a deadly weapon and excessive use of force by a police
officer. The officers were acquitted of all charges, with the exception
of one assault charge against Powell that resulted in a hung jury. The
verdicts touched off widespread rioting in Los Angeles. More than 40
people were killed in the riots, more than 2,000 were injured, and
nearly $1 billion in property was destroyed. New Initiatives for a
New Los Angeles: Final Report and Recommendations, Senate
Special Task Force on a New Los Angeles, Dec. 9, 1992, at 10-11.
On August 4, 1992, a federal grand jury indicted the four officers
under 18 U. S. C. Section 242, charging them with violating King's
constitutional rights under color of law. Powell, Briseno, and Wind
were charged with willful use of unreasonable force in arresting King.
Koon was charged with willfully permitting the other officers to use
unreasonable force during the arrest. After a trial in United States
District Court for the Central District of California, the jury convicted
Koon and Powell but acquitted Wind and Briseno.
We now consider the District Court's sentencing determinations.
Under the Sentencing Guidelines, a district court identifies the base
offense level assigned to the crime in question, adjusts the level as the
Guidelines instruct, and determines the defendant's criminal history
category. 1992 USSG Section 1B1.1. Coordinating the adjusted
offense level and criminal history category yields the appropriate
sentencing range. Ibid.
The District Court sentenced petitioners pursuant to Section 2H1.4 of
the United States Sentencing Commission, Guidelines Manual (Nov.
1992) (1992 USSG), which applies to violations of 18 U. S. C.
Section 242. Section 2H1.4 prescribes a base offense level which is
the greater of the following: 10; or 6 plus the offense level applicable
to any underlying offense. The District Court found the underlying
offense was aggravated assault, which carries a base offense level of
15, 1992 USSG Section 2A2.2(a), to which 6 was added for a total of
21.
The court increased the offense level by four because petitioners had
used dangerous weapons, Section 2A2.2(b)(2)(B). The Government
asked the court also to add four levels for King's serious bodily injury
pursuant to Section 2A2.2(b) (3)(B). The court found, however, that
King's serious injuries were sustained when the officers were using
lawful force. (At trial, the Government contended that all the blows
administered after King fell to the ground 30 seconds into the
videotape violated Section 242. The District Court found that many of
those blows "may have been tortious," but that the criminal violations
did not commence until 1:07 on the videotape, after Briseno stomped
King). The court did add two levels for bodily injury pursuant to
Section 2A2.2(b)(3)(A). The adjusted offense level totaled 27, and
because neither petitioner had a criminal record, each fell within
criminal history category I. The sentencing range for an offense level
of 27 and a criminal history category I was, under the 1992
Guidelines, 70-to-87 months' imprisonment. Rather than sentencing
petitioners to a term within the Guideline range, however, the District
Court departed downward eight levels. The departure determinations
are the subject of this controversy.
The court granted a five-level departure because "the victim's
wrongful conduct contributed significantly to provoking the offense
behavior," Section 5K2.10 (policy statement). 833 F. Supp. 769,
787 (CD Cal. 1993). The court also granted a three-level departure,
based on a combination of four factors. First, as a result of the
"widespread publicity and emotional outrage which have surrounded
this case," petitioners were "particularly likely to be targets of abuse"
in prison. Id., at 788. Second, petitioners would face job-termination
proceedings, after which they would lose their positions as police
officers, be disqualified from prospective employment in the field of
law enforcement, and suffer the "anguish and disgrace these
deprivations entail." Id., at 789. Third, petitioners had been
"significantly burden[ed]" by having been subjected to successive
state and federal prosecutions. Id., at 790. Fourth, petitioners were
not "violent, dangerous, or likely to engage in future criminal
conduct," so there was "no reason to impose a sentence that reflects a
need to protect the public from [them]." Ibid. The court concluded
these factors justified a departure when taken together, although none
would have been sufficient standing alone. Id., at 786.
The departures yielded an offense level of 19 and a sentencing range
of 30-to-37 months' imprisonment. The court sentenced each
petitioner to 30 months' imprisonment. The petitioners appealed their
convictions, and the Government appealed the sentences, arguing that
the District Court erred in granting the downward departures and in
failing to adjust the offense level upward for serious bodily injury.
The Court of Appeals affirmed petitioners' convictions, and affirmed
the District Court's refusal to adjust the offense level, but it reversed
the District Court's departure determinations. Only the last ruling is
before us.
The Court of Appeals reviewed "de novo whether the district court
had authority to depart." 34 F. 3d 1416, 1451 (CA9 1994). The
court reversed the five-level departure for victim misconduct,
reasoning that misbehavior by suspects is typical in cases involving
excessive use of force by police and is thus comprehended by the
applicable Guideline. Id., at 1460.
As for the three-level departure, the court rejected each factor cited.
Acknowledging that a departure for susceptibility to abuse in prison
may be appropriate in some instances and that police officers as a
group are susceptible to prison abuse, the court nevertheless said the
factor did not justify departure because "reliance solely on hostility
toward a group of which the defendant is a member provides an
unlimited open-ended rationale for departing." Id., at 1455. The
court further noted that, unlike cases in which a defendant is
vulnerable to prison abuse due to physical characteristics over which
he has no control, here the petitioners' vulnerability stemmed from
public condemnation of their crimes. Id., at 1456.
As for petitioners' collateral employment consequences, the court first
held consideration of the factor by the trial court inconsistent with the
sentencing goals of 18 U. S. C. Section 3553(a) because the factor
did not "speak to the offender's character, the nature or seriousness of
the offense, or some other legitimate sentencing concern." 34 F. 3d,
at 1453. The court noted further that because the societal
consequences of a criminal conviction are almost unlimited, reliance
on them "would create a system of sentencing that would be
boundless in the moral, social, and psychological examinations it
required courts to make." Id., at 1454. Third, the court noted the ease
of using the factor to justify departures based on a defendant's socio-
economic status, a consideration that, under 1992 USSG Section
5H1.10, is never a permitted basis for departure. As a final point, the
Court of Appeals said the factor was "troubling" because petitioners,
as police officers, held positions of trust they had abused. Section
3B1.3 of the Guidelines increases, rather than decreases, punishment
for those who abuse positions of trust. 34 F. 3d., at 1454.
The Court of Appeals next found the successive state and federal
prosecutions could not be a downward departure factor. It deemed the
factor irrelevant to the sentencing goals of Section 3553(a)(2) and
contradictory to the Attorney General's determination that compelling
federal interests warranted a second prosecution. Id., at 1457. The
court rejected the last departure factor as well, ruling that low risk of
recidivism was comprehended in the criminal history category and so
should not be double counted. Id., at 1456-1457.
We granted certiorari to determine the standard of review governing
appeals from a district court's decision to depart from the sentencing
ranges in the Guidelines. The appellate court should not review the
departure decision de novo, but instead should ask whether the
sentencing court abused its discretion. Having invoked the wrong
standard, the Court of Appeals erred further in rejecting certain of the
downward departure factors relied upon by the District Judge.
The Sentencing Reform Act of 1984, as amended, 18 U. S. C.
Section 3551 et seq., 28 U. S. C. Sections 991-998, made far-
reaching changes in federal sentencing. Before the Act, sentencing
judges enjoyed broad discretion in determining whether and how long
an offender should be incarcerated. Mistretta v. United States, 488 U.
S. 361, 363 (1989). The discretion led to perceptions that "federal
judges mete out an unjustifiably wide range of sentences to offenders
with similar histories, convicted of similar crimes, committed under
similar circumstances." S. Rep. No. 98-225, p. 38 (1983). In
response, Congress created the United States Sentencing Commission
and charged it with developing a comprehensive set of sentencing
guidelines, 28 U. S. C. Section 994. The Commission promulgated
the United States Sentencing Guidelines, which "specify an
appropriate [sentencing range] for each class of convicted persons"
based on various factors related to the offense and the offender.
United States Sentencing Commission, Guidelines Manual ch. 1, pt.
A (Nov. 1995) (1995 USSG). A district judge now must impose on a
defendant a sentence falling within the range of the applicable
Guideline, if the case is an ordinary one.
The Act did not eliminate all of the district court's discretion,
however. Acknowledging the wisdom, even the necessity, of
sentencing procedures that take into account individual circumstances,
see 28 U. S. C. Section 991(b)(1)(B), Congress allows district courts
to depart from the applicable Guideline range if "the court finds that
there exists an aggravating or mitigating circumstance of a kind, or to
a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence different from that described." 18 U. S. C. Section 3553(b).
To determine whether a circumstance was adequately taken into
consideration by the Commission, Congress instructed courts to
"consider only the sentencing guidelines, policy statements, and
official commentary of the Sentencing Commission." Ibid.
Turning our attention, as instructed, to the Guidelines Manual, we
learn that the Commission did not adequately take into account cases
that are, for one reason or another, "unusual." 1995 USSG ch. 1, pt.
A, intro. comment. 4(b). The Introduction to the Guidelines explains:
"The Commission intends the sentencing courts to treat each guideline
as carving out a `heartland,' a set of typical cases embodying the
conduct that each guideline describes. When a court finds an atypical
case, one to which a particular guideline linguistically applies but
where conduct significantly differs from the norm, the court may
consider whether a departure is warranted." Ibid.
The Commission lists certain factors which never can be bases for
departure (race, sex, national origin, creed, religion, socio-economic
status, 1995 USSG Section 5H1.10; lack of guidance as a youth,
Section 5H1.12; drug or alcohol dependence, Section 5H1.4; and
economic hardship, Section 5K2.12), but then states that with the
exception of those listed factors, it "does not intend to limit the kinds
of factors, whether or not mentioned anywhere else in the guidelines,
that could constitute grounds for departure in an unusual case." 1995
USSG ch. 1, pt. A, intro. comment. 4(b). The Commission gives
two reasons for its approach: "First, it is difficult to prescribe a single
set of guidelines that encompasses the vast range of human conduct
potentially relevant to a sentencing decision. The Commission also
recognizes that the initial set of guidelines need not do so. The
Commission is a permanent body, empowered by law to write and
rewrite guidelines, with progressive changes, over many years. By
monitoring when courts depart from the guidelines and by analyzing
their stated reasons for doing so and court decisions with references
thereto, the Commission, over time, will be able to refine the
guidelines to specify more precisely when departures should and
should not be permitted.
"Second, the Commission believes that despite the courts' legal
freedom to depart from the guidelines, they will not do so very often.
This is because the guidelines, offense by offense, seek to take
account of those factors that the Commission's data indicate made a
significant difference in pre-guidelines sentencing practice." Ibid.
So the Act authorizes district courts to depart in cases that feature
aggravating or mitigating circumstances of a kind or degree not
adequately taken into consideration by the Commission. The
Commission, in turn, says it has formulated each Guideline to apply
to a heartland of typical cases. Atypical cases were not "adequately
taken into consideration," and factors that may make a case atypical
provide potential bases for departure. Potential departure factors
"cannot, by their very nature, be comprehensively listed and analyzed
in advance," 1995 USSG Section 5K2.0, of course. Faced with this
reality, the Commission chose to prohibit consideration of only a few
factors, and not otherwise to limit, as a categorical matter, the
considerations which might bear upon the decision to depart.
Sentencing courts are not left adrift, however. The Commission
provides considerable guidance as to the factors that are apt or not apt
to make a case atypical, by listing certain factors as either encouraged
or discouraged bases for departure. Encouraged factors are those "the
Commission has not been able to take into account fully in formulating
the guidelines." Section 5K2.0. Victim provocation, a factor relied
upon by the District Court in this case, is an example of an encouraged
downward departure factor, Section 5K2.10, whereas disruption of a
governmental function is an example of an encouraged upward
departure factor, Section 5K2.7. Even an encouraged factor is not
always an appropriate basis for departure, for on some occasions the
applicable Guideline will have taken the encouraged factor into
account. For instance, a departure for disruption of a governmental
function "ordinarily would not be justified when the offense of
conviction is an offense such as bribery or obstruction of justice; in
such cases interference with a government function is inherent in the
offense." Ibid. A court still may depart on the basis of such a factor
but only if it "is present to a degree substantially in excess of that
which ordinarily is involved in the offense." Section 5K2.0.
Discouraged factors, by contrast, are those "not ordinarily relevant to
the determination of whether a sentence should be outside the
applicable guideline range." 1995 USSG ch. 5, pt. H, intro.
comment. Examples include the defendant's family ties and
responsibilities, 1995 USSG Section 5H1.6, his or her education and
vocational skills, Section 5H1.2, and his or her military, civic,
charitable, or public service record, Section 5H1.11. The
Commission does not view discouraged factors "as necessarily
inappropriate" bases for departure but says they should be relied upon
only "in exceptional cases." 1995 USSG ch. 5, pt. H, intro.
comment.
The Commission's treatment of departure factors led then-Chief Judge
Breyer to explain that a sentencing court considering a departure
should ask the following questions:
"1) What features of this case, potentially, take it outside the
Guidelines' `heartland' and make of it a special, or unusual, case?
"2) Has the Commission forbidden departures based on those
features?
"3) If not, has the Commission encouraged departures based on those
features?
"4) If not, has the Commission discouraged departures based on those
features?" United States v. Rivera, 994 F. 2d 942, 949 (CA1 1993).
We agree with this summary. If the special factor is a forbidden
factor, the sentencing court cannot use it as a basis for departure. If
the special factor is an encouraged factor, the court is authorized to
depart if the applicable Guideline does not already take it into account.
If the special factor is a discouraged factor, or an encouraged factor
already taken into account by the applicable Guideline, the court
should depart only if the factor is present to an exceptional degree or
in some other way makes the case different from the ordinary case
where the factor is present. Cf. ibid. If a factor is unmentioned in the
Guidelines, the court must, after considering the "structure and theory
of both relevant individual guidelines and the Guidelines taken as a
whole," id., at 949, decide whether it is sufficient to take the case out
of the Guideline's heartland. The court must bear in mind the
Commission's expectation that departures based on grounds not
mentioned in the Guidelines will be "highly infrequent." 1995 USSG
ch. 1, pt. A.
Against this background, we consider the standard of review.
Before the Guidelines system, a federal criminal sentence within
statutory limits was, for all practical purposes, not reviewable on
appeal. Dorszynski v. United States, 418 U. S. 424, 431 (1974)
(reiterating "the general proposition that once it is determined that a
sentence is within the limitations set forth in the statute under which it
is imposed, appellate review is at an end"); United States v. Tucker,
404 U. S. 443, 447 (1972) (same). The Act altered this scheme in
favor of a limited appellate jurisdiction to review federal sentences. 18
U. S. C. Section 3742. Among other things, it allows a defendant to
appeal an upward departure and the Government to appeal a
downward one. Sections 3742(a), (b).
That much is clear. Less clear is the standard of review on appeal.
The Government advocates de novo review, saying that, like the
Guidelines themselves, appellate review of sentencing, and in
particular of departure decisions, was intended to reduce unjustified
disparities in sentencing. In its view, de novo review of departure
decisions is necessary "to protect against unwarranted disparities
arising from the differing sentencing approaches of individual district
judges." Brief for United States 12.
We agree that Congress was concerned about sentencing disparities,
but we are just as convinced that Congress did not intend, by
establishing limited appellate review, to vest in appellate courts wide-
ranging authority over district court sentencing decisions. Indeed, the
text of Section 3742 manifests an intent that district courts retain much
of their traditional sentencing discretion. Section 3742(e), as enacted
in 1984, provided "[t]he court of appeals shall give due regard to the
opportunity of the district court to judge the credibility of the
witnesses, and shall accept the findings of fact of the district court
unless they are clearly erroneous." In 1988, Congress amended the
statute to impose the additional requirement that courts of appeals
"give due deference to the district court's application of the guidelines
to the facts." Examining Section 3742 in Williams v. United States,
503 U. S. 193 (1992), we stated as follows:
"Although the Act established a limited appellate review of sentencing
decisions, it did not alter a court of appeals' traditional deference to a
district court's exercise of its sentencing discretion. . . . The
development of the guideline sentencing regime has not changed our
view that, except to the extent specifically directed by statute, `it is not
the role of an appellate court to substitute its judgment for that of the
sentencing court as to the appropriateness of a particular sentence.'"
(quoting Solem v. Helm, 463 U. S. 277, 290, n. 16 (1983)). 503 U.
S., at 205.
See also S. Rep. No. 225, at 150 ("The sentencing provisions of the
reported bill are designed to preserve the concept that the discretion of
a sentencing judge has a proper place in sentencing and should not be
displaced by the discretion of an appellate court").
That the district court retains much of its traditional discretion does not
mean appellate review is an empty exercise. Congress directed courts
of appeals to "give due deference to the district court's application of
the guidelines to the facts." 18 U. S. C. Section 3742(e)(4). The
deference that is due depends on the nature of the question presented.
The district court may be owed no deference, for instance, when the
claim on appeal is that it made some sort of mathematical error in
applying the Guidelines; under these circumstances, the appellate court
will be in as good a position to consider the question as the district
court was in the first instance.
A district court's decision to depart from the Guidelines, by contrast,
will in most cases be due substantial deference, for it embodies the
traditional exercise of discretion by a sentencing court. See Mistretta,
488 U. S., at 367 (noting that although the Act makes the Guidelines
binding on sentencing courts, "it preserves for the judge the discretion
to depart from the guideline applicable to a particular case"). Before a
departure is permitted, certain aspects of the case must be found
unusual enough for it to fall outside the heartland of cases in the
Guideline. To resolve this question, the district court must make a
refined assessment of the many facts bearing on the outcome,
informed by its vantage point and day-to-day experience in criminal
sentencing. Whether a given factor is present to a degree not
adequately considered by the Commission, or whether a discouraged
factor nonetheless justifies departure because it is present in some
unusual or exceptional way, are matters determined in large part by
comparison with the facts of other Guidelines cases. District courts
have an institutional advantage over appellate courts in making these
sorts of determinations, especially as they see so many more
Guidelines cases than appellate courts do. In 1994, for example,
93.9% of Guidelines cases were not appealed. Letter from Pamela G.
Montgomery, Deputy General Counsel, United States Sentencing
Commission (Mar. 29, 1996). "To ignore the district court's special
competence--about the `ordinariness' or `unusualness' of a particular
case--would risk depriving the Sentencing Commission of an
important source of information, namely, the reactions of the trial
judge to the fact-specific circumstances of the case. . . ." Rivera, 994
F. 2d, at 951.
Considerations like these persuaded us to adopt the abuse-of-
discretion standard in Cooter & Gell v. Hartmarx Corp., 496 U. S.
384 (1990), which involved review of a district court's imposition of
Rule 11 sanctions, and in Pierce v. Underwood, 487 U. S. 552
(1988), which involved review of a district court's determination
under the Equal Access to Justice Act, 28 U. S. C. Section 2412(d),
that the position of the United States was "substantially justified,"
thereby precluding an award of attorneys' fees against the
Government. There, as here, we noted that deference was owed to
the "`judicial actor . . . better positioned than another to decide the
issue in question.'" Pierce, supra, at 559-560 (quoting Miller v.
Fenton, 474 U. S. 104, 114 (1985); Cooter & Gell, supra, at 403.
Furthermore, we adopted deferential review to afford "the district
court the necessary flexibility to resolve questions involving
`multifarious, fleeting, special, narrow facts that utterly resist
generalization.'" 496 U. S., at 404 (quoting Pierce, supra, at 561-
562). Like the questions involved in those cases, a district court's
departure decision involves "the consideration of unique factors that
are `little susceptible . . . of useful generalization,'" 496 U. S., at
404, and as a consequence, de novo review is "unlikely to establish
clear guidelines for lower courts," id., at 405.
The Government seeks to avoid the factual nature of the departure
inquiry by describing it at a higher level of generality linked closely to
questions of law. The relevant question, however, is not, as the
Government says, "whether a particular factor is within the
`heartland'" as a general proposition, Brief for United States 28, but
whether the particular factor is within the heartland given all the facts
of the case. For example, it does not advance the analysis much to
determine that a victim's misconduct might justify a departure in some
aggravated assault cases. What the district court must determine is
whether the misconduct which occurred in the particular instance
suffices to make the case atypical. The answer is apt to vary
depending on, for instance, the severity of the misconduct, its timing,
and the disruption it causes. These considerations are factual matters.
This does not mean that district courts do not confront questions of
law in deciding whether to depart. In the present case, for example,
the Government argues that the District Court relied on factors that
may not be considered in any case. The Government is quite correct
that whether a factor is a permissible basis for departure under any
circumstances is a question of law, and the court of appeals need not
defer to the district court's resolution of the point. Little turns,
however, on whether we label review of this particular question abuse
of discretion or de novo, for an abuse of discretion standard does not
mean a mistake of law is beyond appellate correction. Cooter & Gell,
supra, at 402. A district court by definition abuses its discretion when
it makes an error of law. 496 U. S., at 405. That a departure
decision, in an occasional case, may call for a legal determination does
not mean, as a consequence, that parts of the review must be labeled
de novo while other parts are labeled an abuse of discretion. See id.,
at 403 (court of appeals should "apply a unitary abuse-of-discretion
standard"). The abuse of discretion standard includes review to
determine that the discretion was not guided by erroneous legal
conclusions.
The principles we have explained require us to reverse the rulings of
the Court of Appeals in significant part.
The District Court departed downward five levels because King's
"wrongful conduct contributed significantly to provoking the offense
behavior." 833 F. Supp., at 786. Victim misconduct was an
encouraged basis for departure under the 1992 Guidelines and is so
now. 1992 USSG Section 5K2.10; 1995 USSG Section 5K2.10.
Most Guidelines prescribe punishment for a single discrete statutory
offense or a few similar statutory offenses with rather predictable fact
patterns. Petitioners were convicted of violating 18 U. S. C. Section
242, however, a statute unusual for its application in so many varied
circumstances. It prohibits, among other things, subjecting any
person under color of law "to the deprivation of any rights, privileges,
or immunities secured or protected by the Constitution or laws of the
United States." A violation of Section 242 can arise in a myriad of
forms, and the Guideline applicable to the statute applies to any
violation of Section 242 regardless of the form it takes. 1992 USSG
Section 2H1.4. Section 2H1.4 takes account of the different kinds of
conduct that might constitute a Section 242 violation by instructing
courts to use as a base offense level the greater of 10, or 6 plus the
offense level applicable to any underlying offense. In this way,
Section 2H1.4 incorporates the base offense level of the underlying
offense; as a consequence, the heartland of Section 2H1.4 will vary
depending on the defendant's conduct.
Here, the underlying offense was aggravated assault. After adjusting
the offense level for use of a dangerous weapon and bodily injury, see
1992 USSG Section 1B1.5(a) (a Guideline that incorporates another
Guideline incorporates as well the other's specific offense
characteristics), the District Court added six levels as required by
Section 2H1.4. Section 2H1.4 adds the six levels to account for the
fact that the offense was committed "under actual or purported legal
authority," commentary to Section 2H1.4, and that "the harm involved
both the underlying conduct and activity intended to deprive a person
of his civil rights," ibid. (incorporating introductory commentary to
Section 2H1.1).
The District Court's analysis of this departure factor showed a correct
understanding in applying Section 2H1.4 as a mechanical matter and
in interpreting its heartland. After summarizing King's misconduct--
his driving while intoxicated, fleeing from the police, refusing to obey
the officers' commands, attempting to escape from police custody,
etc.--the District Court concluded that a downward departure pursuant
to Section 5K2.10 was justified:
"Mr. King's provocative behavior eventually subsided. The Court
recognizes that by the time the defendants' conduct crossed the line to
unlawfulness, Mr. King was no longer resisting arrest. He posed no
objective threat, and the defendants had no reasonable perception of
danger. Nevertheless, the incident would not have escalated to this
point, indeed it would not have occurred at all, but for Mr. King's
initial misconduct." 833 F. Supp., at 787.
The court placed these facts within the context of the relevant
Guideline range:
"Messrs. Koon and Powell were convicted of conduct which began as
a legal use of force against a resistant suspect and subsequently
crossed the line to unlawfulness, all in a matter of seconds, during the
course of a dynamic arrest situation. However, the convicted offenses
fall under the same Guideline Sections that would apply to a jailor,
correctional officer, police officer or other state agent who
intentionally used a dangerous weapon to assault an inmate, without
legitimate cause to initiate a use of force.
"The two situations are clearly different. Police officers are always
armed with `dangerous weapons' and may legitimately employ those
weapons to administer reasonable force. Where an officer's initial use
of force is provoked and lawful, the line between a legal arrest and an
unlawful deprivation of civil rights within the aggravated assault
Guideline is relatively thin. The stringent aggravated assault
Guideline, along with its upward adjustments for use of a deadly
weapon and bodily injury, contemplates a range of offenses involving
deliberate and unprovoked assaultive conduct. The Guidelines do not
adequately account for the differences between such `heartland'
offenses and the case at hand." Ibid.
The Court of Appeals rejected this analysis. It interpreted the District
Court to have found that King had been the but-for cause of the crime,
not that he had provoked it. According to the Court of Appeals, the
District Court "ultimately focused not on provocation itself but rather
on the volatility of the incident, and the close proximity between, on
the one hand, the victim's misconduct and the officers' concomitant
lawful use of force, and, on the other hand, the appellants' unlawful
use or authorization of the use of force." 34 F. 3d, at 1459. The Court
of Appeals thought these considerations did not justify departure for
victim misconduct. It first quoted the test this Court formulated for
excessive force cases under the Fourth Amendment:
"`The calculus of reasonableness must embody allowance for the fact
that police officers are often forced to make split-second judgments--in
circumstances that are tense, uncertain, and rapidly evolving-- about
the amount of force that is necessary in a particular situation.'" Ibid.
(quoting Graham v. Connor, 490 U. S. 386, 396-397 (1989)).
The Court of Appeals reasoned that "before a use of force can be
found excessive, the Graham `calculus,' embracing the very factor
which the district court found to be unusual in this case--the `dynamic
arrest situation'--has been taken into consideration." 34 F. 3d., at
1459. Indeed, it noted the jury not only had to take the Graham factors
into account, but also, to establish criminal liability, had to conclude
that the petitioners "willfully came down on the wrong side of the
Graham standard." Ibid. (emphasis in original). The Court of
Appeals concluded that "the feature which the district court found
unusual, and exculpatory, is built into the most fundamental structure
of excessive force jurisprudence, and in criminal cases is built in
twice." Ibid.
The court misinterpreted both the District Court's opinion and the
heartland of the applicable Guideline range. The District Court's
observation that the incident would not have occurred at all "but for"
King's misconduct does not alter the further ruling that King
provoked petitioners' illegal use of force. At the outset of its analysis,
the District Court stated: "[T]he Court finds, and considers as a
mitigating circumstance, that Mr. King's wrongful conduct
contributed significantly to provoking the offense behavior." 833 F.
Supp., at 786. It later discussed "Mr. King's wrongdoing and the
substantial role it played in bringing about the defendants' unlawful
conduct." Id., at 787. Indeed, a finding that King's misconduct
provoked lawful force but not the unlawful force that followed
without interruption would be a startling interpretation and contrary to
ordinary understandings of provocation. A response need not
immediately follow an action in order to be provoked by it. The
Commission recognized this when it noted that although victim
misconduct would rarely be a basis for departure in a nonviolent
offense, "an extended course of provocation and harassment might
lead a defendant to steal or destroy property in retaliation." 1992
USSG Section 5K2.10. Furthermore, even if an immediate response
were required by Section 5K2.10, it occurred here: The excessive
force followed within seconds of King's misconduct.
The Court of Appeals misinterpreted the heartland of Section 2H1.4
by concentrating on whether King's misconduct made this an unusual
case of excessive force. If Section 2H1.4 covered punishment only
for excessive force cases, it might well be a close question whether
victim misconduct of this kind would be sufficient to take the case out
of the heartland. Section 2H1.4 is not so designed, however. It
incorporates the Guideline for the underlying offense, here Section
2A2.2 for aggravated assault, and thus creates a Guideline range and a
heartland for aggravated assault committed under color of law. As the
District Court was correct to point out, the same Guideline range
applies both to a Government official who assaults a citizen without
provocation as well as instances like this where what begins as
legitimate force becomes excessive. The District Court did not abuse
its discretion in differentiating between the classes of cases, nor did it
do so in concluding that unprovoked assaults constitute the relevant
heartland. Victim misconduct is an encouraged ground for departure.
A district court, without question, would have had discretion to
conclude that victim misconduct could take an aggravated assault case
outside the heartland of Section 2A2.2. That petitioners' aggravated
assaults were committed under color of law does not change the
analysis. The Court of Appeals thought that it did because Section
2H1.4 "explicitly enhances sentences for official misconduct beyond
those for civilian misconduct." 34 F. 3d, at 1460. The statement is a
non sequitur. Section 2H1.4 imposes a six-level increase regardless
of whether the Government official's aggravated assault is provoked
or unprovoked. Aggravated assault committed under color of law
always will be punished more severely than ordinary aggravated
assault. The District Court did not compare civilian offenders with
official offenders; it compared official offenders who are provoked
with official offenders who are not. That was the correct inquiry.
The punishment prescribed by Section 2A2.2 contemplates
unprovoked assaults, and as a consequence, the District Court did not
abuse its discretion in departing downward for King's misconduct in
provoking the wrong.
We turn now to the three-level departure. As an initial matter, the
Government urges us to hold each of the factors relied upon by the
District Court to be impermissible departure factors under all
circumstances. A defendant's loss of career opportunities must always
be an improper consideration, the Government argues, because
"persons convicted of crimes suffer a wide range of consequences in
addition to the sentence." Brief for United States 38. Susceptibility to
prison abuse, continues the Government, likewise never should be
considered because the "degree of vulnerability to assault is an entirely
`subjective' judgment, and the number of defendants who may qualify
for that departure is `virtually unlimited.'" Id., at 39 (quoting 34 F.
3d, at 1455). And so on.
Those arguments, however persuasive as a matter of sentencing
policy, should be directed to the Commission. Congress did not grant
federal courts authority to decide what sorts of sentencing
considerations are inappropriate in every circumstance. Rather, 18 U.
S. C. Section 3553(b) instructs a court that, in determining whether
there exists an aggravating or mitigating circumstance of a kind or to a
degree not adequately considered by the Commission, it should
consider "only the sentencing guidelines, policy statements, and
official commentary of the Sentencing Commission." The Guidelines,
however, "place essentially no limit on the number of potential factors
that may warrant departure." Burns v. United States, 501 U. S. 129,
136-137 (1991). The Commission set forth factors courts may not
consider under any circumstances but made clear that with those
excep-tions, it "does not intend to limit the kinds of factors, whether
or not mentioned anywhere else in the guidelines, that could constitute
grounds for departure in an unusual case." 1995 USSG ch. I, pt. A,
intro. comment. 4(b). Thus, for the courts to conclude a factor must
not be considered under any circumstances would be to transgress the
policymaking authority vested in the Commission.
An example is helpful. In United States v. Lara, 905 F. 2d 599
(1990), the Court of Appeals for the Second Circuit upheld a District
Court's downward departure based on the defendant's "potential for
victimization" in prison due to his diminutive size, immature
appearance, and bisexual orientation. Id., at 601. In what appeared
to be a response to Lara, the Commission amended 1989 USSG
Section 5H1.4, to make [p]hysicial . . . appearance, including
physique" a discouraged factor. 1995 USSG App. C., Amend. 386
(effective Nov. 1, 1991). The Commission did not see fit, however,
to prohibit consideration of physical appearance in all cases, nor did it
address the broader category of susceptibility to abuse in prison. By
urging us to hold susceptibility to abuse in prison to be an
impermissible factor in all cases, the Government would have us reject
the Commission's considered judgment in favor of our own.
The Government acknowledges as much but says its position is
required by 18 U. S. C. Section 3553(a)(2). The statute provides:
"The court, in determining the particular sentence to be imposed, shall
consider--
"(2) the need for the sentence imposed--
"(A) to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense;
"(B) to afford adequate deterrence to criminal conduct;
"(C) to protect the public from further crimes of the defendant; and
"(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner."
Echoing the Court of Appeals, the Government interprets Section
3553(a)(2) to direct courts to test potential departure factors against its
broad sentencing goals and to reject, as a categorical matter, factors
that are inconsistent with them. The Government and the Court of
Appeals read too much into Section 3553(a)(2). The statute requires a
court to consider the listed goals in determining "the particular
sentence to be imposed." The wording suggests that the goals should
be considered in determining which sentence to choose from a given
Guideline range or from outside the range, if a departure is
appropriate. The statute says nothing about requiring each potential
departure factor to advance one of the specified goals. So long as the
overall sentence is "sufficient, but not greater than necessary, to
comply" with the above-listed goals, the statute is satisfied. Section
3553(a).
Even if the text of the statute were ambiguous, we would reject the
Government's interpretation. The Government's theory--that Section
3553(a)(2) directs courts to decide for themselves, by reference to the
broad, open-ended goals of the provision, whether a given factor ever
can be an appropriate sentencing consideration-- would impose
widespread judicial control over sentencing policy. This in turn would
nullify the Commission's treatment of particular departure factors and
its determination that, with few exceptions, departure factors should
not be ruled out on a categorical basis. The sparse text of Section
3553(a)(2) cannot support this implausible result. Congress created
the Commission to "establish sentencing policies and practices for the
Federal criminal justice system," 28 U. S. C. Section 991(b)(1), and
Congress instructed the Commission, not the courts, to "review and
revise" the Guidelines periodically, Section 994(o). As a result, the
Commission has assumed that its role is "over time [to]. . . refine the
guidelines to specify more precisely when departures should and
should not be permitted." 1992 USSG ch. I, pt. A, intro. comment.
4(b). Had Congress intended the courts to supervise the
Commission's treatment of departure factors, we expect it would have
said so in a clear way. It did not, and we will not assume this role.
We conclude, then, that a federal court's examination of whether a
factor can ever be an appropriate basis for departure is limited to
determining whether the Commission has proscribed, as a categorical
matter, consideration of the factor. If the answer to the question is no-
-as it will be most of the time--the sentencing court must determine
whether the factor, as occurring in the particular circumstances, takes
the case outside the heartland of the applicable Guideline. We now
turn to the four factors underlying the District Court's three-level
departure.
The first question is whether the District Court abused its discretion in
relying on the collateral employment consequences petitioners would
face as a result of their convictions. The District Court stated:
"Defendants Koon and Powell will be subjected to a multiplicity of
adversarial proceedings. The LAPD Board of Rights will charge
Koon and Powell with a felony conviction and, in a quasi-judicial
proceeding, will strip them of their positions and tenure. Koon and
Powell will be disqualified from other law enforcement careers. In
combination, the additional proceedings, the loss of employment and
tenure, prospective disqualification from the field of law enforcement,
and the anguish and disgrace these deprivations entail, will constitute
substantial punishment in addition to any court-imposed sentence. In
short, because Koon and Powell are police officers, certain unique
burdens flow from their convictions." 833 F. Supp., at 789
(footnotes omitted).
The Court of Appeals rejected the District Court's analysis, noting
among other things the "ease with which this factor can be used to
justify departures that are based, either consciously or unconsciously,
on the defendant's socioeconomic status, a factor that is never a
permissible basis for review." 34 F. 3d, at 1454. We agree with the
Court of Appeals that a defendant's career may relate to his or her
socio-economic status, but the link is not so close as to justify
categorical exclusion of the effect of conviction on a career. Although
an impermissible factor need not be invoked by name to be rejected,
socio-economic status and job loss are not the semantic or practical
equivalents of each other.
We nonetheless conclude that the District Court abused its discretion
by considering petitioners' career loss because the factor, as it exists
in these circumstances, cannot take the case out of the heartland of
1992 USSG Section 2H1.4. As noted above, 18 U. S. C. Section
242 offenses may take a variety of forms, but they must involve
willful violations of rights under color of law. Although cognizant of
the deference owed to the district court, we must conclude it is not
unusual for a public official who is convicted of using his
governmental authority to violate a person's rights to lose his or her
job and to be barred from future work in that field. Indeed, many
public employees are subject to termination and are prevented from
obtaining future government employment following conviction of a
serious crime, whether or not the crime relates to their employment.
See Cal. Govt. Code Ann. Section 19572(k) (West 1995)
("Conviction of a felony or conviction of a misdemeanor involving
moral turpitude" constitutes cause for dismissal); Section 18935(f)
(State Personnel Board may refuse to declare eligible for state
employment one who has "been convicted of a felony, or convicted of
a misdemeanor involving moral turpitude"); Ky. Rev. Stat. Ann.
18A.146(2) (Michie 1992); 4 Pa. Code Section 7.173 (1995). Public
officials convicted of violating Section 242 have done more than
engage in serious criminal conduct; they have done so under color of
the law they have sworn to uphold. It is to be expected that a
government official would be subject to the career-related
consequences petitioners faced after violating Section 242, so we
conclude these consequences were adequately considered by the
Commission in formulating Section 2H1.4.
We further agree with the Court of Appeals that the low likelihood of
petitioners' recidivism was not an appropriate basis for departure.
Petitioners were first-time offenders and so were classified in Criminal
History Category I. The District Court found that "[w]ithin Criminal
History Category I, the Guidelines do not adequately distinguish
defendants who, for a variety of reasons, are particularly unlikely to
commit crimes in the future. Here, the need to protect the public from
the defendants' future criminal conduct is absent `to a degree' not
contemplated by the Guidelines." 833 F. Supp., at 790, n. 20. The
District Court failed to account for the Commission's specific
treatment of this issue, however. After explaining that a district court
may depart upward from the highest Criminal Offense Category, the
Commission stated:
"However, this provision is not symmetrical. The lower limit of the
range for Criminal History Category I is set for a first offender with
the lowest risk of recidivism. Therefore, a departure below the lower
limit of the guideline range for Criminal History Category I on the
basis of the adequacy of criminal history cannot be appropriate."
1992 USSG Section 4A1.3
The District Court abused its discretion by considering appellants' low
likelihood of recidivism. The Commission took that factor into
account in formulating the criminal history category.
The two remaining factors are susceptibility to abuse in prison and
successive prosecutions. The District Court did not abuse its
discretion in considering these factors. The Court of Appeals did not
dispute, and neither do we, the District Court's finding that "[t]he
extraordinary notoriety and national media coverage of this case,
coupled with the defendants' status as police officers, make Koon and
Powell unusually susceptible to prison abuse," 833 F. Supp., at 785-
786. Petitioners' crimes, however brutal, were by definition the same
for purposes of sentencing law as those of any other police officers
convicted under 18 U. S. C. Section 242 of using unreasonable force
in arresting a suspect, sentenced under Section 2H1.4, and receiving
the upward adjustments petitioners received. Had the crimes been still
more severe, petitioners would have been assigned a different base
offense level or received additional upward adjustments. Yet, due in
large part to the existence of the videotape and all the events that
ensued, "widespread publicity and emotional outrage . . . have
surrounded this case from the outset," 833 F. Supp., at 788, which
led the District Court to find petitioners "particularly likely to be
targets of abuse during their incarceration," ibid. The District Court's
conclusion that this factor made the case unusual is just the sort of
determination that must be accorded deference by the appellate courts.
As for petitioners' successive prosecutions, it is true that consideration
of this factor could be incongruous with the dual responsibilities of
citizenship in our federal system in some instances. Successive state
and federal prosecutions do not violate the Double Jeopardy Clause.
Heath v. Alabama, 474 U. S. 82 (1985). Nonetheless, the District
Court did not abuse its discretion in determining that a "federal
conviction following a state acquittal based on the same underlying
conduct . . . significantly burden[ed] the defendants." 833 F. Supp.,
at 790. The state trial was lengthy, and the toll it took is not beyond
the cognizance of the District Court.
The goal of the Sentencing Guidelines is, of course, to reduce
unjustified disparities and so reach towards the evenhandedness and
neutrality that are the distinguishing marks of any principled system of
justice. In this respect, the Guidelines provide uniformity,
predictability, and a degree of detachment lacking in our earlier
system. This too must be remembered, however. It has been uniform
and constant in the federal judicial tradition for the sentencing judge to
consider every convicted person as an individual and every case as a
unique study in the human failings that sometimes mitigate, sometimes
magnify, the crime and the punishment to ensue. We do not
understand it to have been the congressional purpose to withdraw all
sentencing discretion from the United States District Judge.
Discretion is reserved within the Sentencing Guidelines, and reflected
by the standard of appellate review we adopt.
* * *
The Court of Appeals identified the wrong standard of review. It
erred as well in finding that victim misconduct did not justify the five-
level departure and that susceptibility to prison abuse and the burdens
of successive prosecutions could not be relied upon for the three-level
departure. Those sentencing determinations were well within the
sound discretion of the District Court. The District Court did abuse its
discretion in relying on the other two factors forming the three-level
departure: career loss and low recidivism risk. When a reviewing
court concludes that a district court based a departure on both valid
and invalid factors, a remand is required unless it determines the
district court would have imposed the same sentence absent reliance
on the invalid factors. Williams, 503 U. S., at 203. As the District
Court here stated that none of the four factors standing alone would
justify the three-level departure, it is not evident that the court would
have imposed the same sentence if it had relied only on susceptibility
to abuse in prison and the hardship of successive prosecutions. The
Court of Appeals should therefore remand the case to the District
Court.
The judgment of the Court of Appeals is affirmed in part and reversed
in part, and the case is remanded for further proceedings consistent
with this opinion.
===============================================
========
SUPREME COURT OF THE UNITED STATES
Nos. 94-1664 AND 94-8842
STACEY C. KOON, PETITIONER
94-1664 v.
UNITED STATES
LAURENCE M. POWELL, PETITIONER
94-8842 v.
UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
[June 13, 1996]
JUSTICE STEVENS, concurring in part and dissenting in part.
In my opinion the District Court did not abuse its discretion when it
relied on the unusual collateral employment consequences faced by
these petitioners as a result of their convictions. I therefore except
Part IV-B-1 from my otherwise complete endorsement of the Court's
opinion. I also note that I do not understand the opinion to foreclose
the District Court from basing a downward departure on an
aggregation of factors each of which might in itself be insufficient to
justify a departure.
===============================================
========
SUPREME COURT OF THE UNITED STATES
Nos. 94-1664 AND 94-8842
STACEY C. KOON, PETITIONER
94-1664 v.
UNITED STATES
LAURENCE M. POWELL, PETITIONER
94-8842 v.
UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
[June 13, 1996]
JUSTICE SOUTER, with whom JUSTICE GINSBURG joins,
concurring in part and dissenting in part.
I agree with the way today's opinion describes a district court's tasks
in sentencing under the Guidelines, and the role of a court of appeals
in reviewing sentences, but I part company from the Court in applying
its standard on two specific points. I would affirm the Court of
Appeals's rejection of the downward departures based on
susceptibility to abuse in prison and on successive prosecution, for to
do otherwise would be to attribute an element of irrationality to the
Commission and to its "heartland" concept. Accordingly, I join the
Court's opinion except Part IV-B-3.
As the majority notes, ante, at 23, "Congress did not grant federal
courts authority to decide what sorts of sentencing considerations are
inappropriate in every circumstance." In fact, Congress allowed
district courts to depart from the Guidelines only if "the court finds
that there exists an aggravating or mitigating circumstance of a kind,
or to a degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines that should
result in a sentence different from that described." 18 U. S. C.
Section 3553(b); see also ante, at 9. While discussing departures, the
Commission quotes this language from Section 3553(b), before
stating that "[w]hen a court finds an atypical case,... the court may
consider whether a departure is warranted." United States Sentencing
Guidelines Manual, ch. 1, pt. A, intro. comment. 4(b) (Nov. 1995)
(1995 USSG). Thus, both Congress and the Commission envisioned
that departures would require some unusual factual circumstance, but
would be justified only if the factual difference "should" result in a
different sentence. Departures, in other words, must be consistent
with rational normative order.
As to the consideration of susceptibility to abuse in prison, the District
Court departed downward because it believed that "the widespread
publicity and emotional outrage which have surrounded this case from
the outset, in addition to the [petitioners'] status as police officers,
lead the Court to find that Koon and Powell are particularly likely to
be targets of abuse during their incarceration." 833 F. Supp. 769,
788 (CD Cal. 1993). That is, the District Court concluded that
petitioners would be subject to abuse not simply because they were
former police officers, but in large part because of the degree of
publicity and condemnation surrounding their crime.1 But that
reasoning overlooks the fact that the publicity stemmed from the
remarkable brutality of petitioners' proven behavior, which it was
their misfortune to have precisely documented on film. To allow a
departure on this basis is to reason, in effect, that the more serious the
crime, and the more widespread its consequent publicity and
condemnation, the less one should be punished; the more egregious
the act, the less culpable the offender. In the terminology of the
Guidelines, such reasoning would take the heartland to be the domain
of the less, not the more, deplorable of the acts that might come within
the statute. This moral irrationality cannot be attributed to the
heartland scheme, however, and rewarding the relatively severe
offender could hardly have been in the contemplation of a
Commission that discouraged downward departures for susceptibility
to prison abuse even when the nonculpable reason is an unusual
"[p]hysical . . . appearance, including physique." 1995 USSG
Section 5H1.4; see also ante, at 24; 1995 USSG ch. 1, pt. A, intro.
comment. 3 (discussing the principle of "just deserts," which the
Commission describes as a concept under which "punishment should
be scaled to the offender's culpability and the resulting harms").2
The Court of Appeals appreciated the significance of the requisite
moral calculus when it wrote that "[a]ny public outrage was the direct
result of [petitioners'] criminal acts. It is incongruous and
inappropriate to reduce [petitioners'] sentences specifically because
individuals in society have condemned their acts as criminal and an
abuse of the trust that society placed in them." 34 F. 3d 1416, 1456
(CA9 1994). The Court of Appeals should be affirmed on this point.
I believe that it was also an abuse of discretion for the District Court to
depart downward because of the successive prosecutions.3 In these
cases, there were facial showings that the state court system had
malfunctioned when the petitioners were acquitted (or, in the case of
one charge, had received no verdict), and without something more one
cannot accept the District Court's conclusion that there was no
demonstration that a "clear miscarriage of justice" caused the result in
the state trial. 833 F. Supp., at 790. This is so simply because the
federal prosecutors, in proving their cases, proved conduct
constituting the crimes for which petitioners had been prosecuted
unsuccessfully in the state court. See Powell v. Superior Court, 232
Cal. App. 3d 785, 789, 283 Cal. Rptr. 777, 779 (1991) (noting that
petitioners were charged, inter alia, with assault by force likely to
produce great bodily injury, Cal. Penal Code Ann. Section 245(a)(1),
and being an officer unnecessarily assaulting or beating any person in
violation of Section 149); Cal. Pen. Code Section 149 ("Every public
officer who, under color of authority, without lawful necessity,
assaults or beats any person" commits an offense); Cal. Pen. Code
Section 245(a)(1) ("Every person who commits an assault upon the
person of another . . . by any means of force likely to produce great
bodily injury" commits an offense); ante, at 4 (observing that
petitioners were tried in state court for assault with a deadly weapon
and excessive use of force by a police officer and tried in federal court
for willfully using or willfully allowing others to use unreasonable
force in arresting King); 833 F. Supp., at 790 (stating that the "same
underlying conduct" was involved in both cases). While such a facial
showing resulting from the identity of factual predicates for the state
and federal prosecutions might in some cases be overcome, (by
demonstrating, say, that a crucial witness for the State was unavailable
in the state trial through no one's fault), there was no evidence to
overcome it here.
As a consequence, reading the guidelines to suggest that those who
profit from state court malfunctions should get the benefit of a
downward departure would again attribute a normative irrationality to
the heartland concept. The sense of irrationality here is, to be sure,
different from what was presupposed by the District Court's analysis
on the issue of susceptibility to abuse in prison, for the incongruity
produced by downward departures here need not depend on the
defendant's responsibility for the particular malfunction of the state
system. But the fact remains that it would be a normatively obtuse
sentencing scheme that would reward a defendant whose federal
prosecution is justified solely because he has obtained the advantage
of injustice produced by the failure of the state system.
This is not, of course, to say that a succession of state and federal
prosecutions may never justify a downward departure. If a
comparison of state and federal verdicts in relation to their factual
predicates indicates no incongruity, a downward departure at federal
sentencing could well be consistent with an application of a rational
heartland concept. But these are not such cases.
===============================================
========
SUPREME COURT OF THE UNITED STATES
Nos. 94-1664 AND 94-8842
STACEY C. KOON, PETITIONER
94-1664 v.
UNITED STATES
LAURENCE M. POWELL, PETITIONER
94-8842 v.
UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
[June 13, 1996]
JUSTICE BREYER, with whom JUSTICE GINSBURG joins,
concurring in part and dissenting in part.
I join the Court's opinion with the exception of Part IV-B-3. I agree
with JUSTICE SOUTER's conclusion in respect to that section. The
record here does not support departures based upon either the simple
fact of two prosecutions or the risk of mistreatment in prison.
In my view, the relevant Guideline, 1992 USSG Section 2H1.4,
encompasses the possibility of a double prosecution. That Guideline
applies to various civil rights statutes, which Congress enacted, in
part, to provide a federal forum for the protection of constitutional
rights where state law enforcement efforts had proved inadequate.
See, e.g., Ngiraingas v. Sanchez, 495 U. S. 182, 187-189 (1990);
Monroe v. Pape, 365 U. S. 167, 171-180 (1961); Screws v. United
States, 325 U. S. 91, 131-134 (1945) (Rutledge, J., concurring in
result). Before promulgating the Guidelines, the Commission
"examined the many hundreds of criminal statutes in the United States
Code," 1995 USSG ch.1, pt. A, intro. comment 5, and it would
likely have been aware of this well-known legislative purpose. The
centrality of this purpose, the Commission's likely awareness of it,
and other considerations that JUSTICE SOUTER mentions, ante, at
__, lead me to conclude on the basis of the statute and Guideline itself,
18 U. S. C. Section 3553(b), that the Commission would have
considered a "double prosecution" case as one ordinarily within, not
outside, the "civil rights" Guideline's "heartland." For that reason, a
simple double prosecution, without more, does not support a
departure. See 18 U. S. C. Section 3553(b) (departures permitted
only when circumstances were "not adequately taken into
consideration" by the Commission) (emphasis added).
The departure on the basis of potential mistreatment in prison presents
a closer question. Nonetheless, differences in prison treatment are
fairly common--to the point where too frequent use of this factor as a
basis for departure could undermine the uniformity that the Guidelines
seek. For that reason, and others that JUSTICE SOUTER mentions,
ante, at __, I believe that the Guidelines themselves embody an
awareness of potentially harsh (or lenient) treatment in prison, thereby
permitting departure on that basis only in a truly unusual case. Even
affording the District Court "due deference," 18 U. S. C. Section
3742(e), I cannot find in this record anything sufficiently unusual,
compared, say, with other policemen imprisoned for civil rights
violations, as to justify departure.
ENDNOTES
1 Although it is not essential to my analysis, I note in passing that the
unusual extent of outside publicity is probably irrelevant in the prison
environment. Given any amount of outside publicity, prison inmates
quickly learn about new arrivals, including former police officers, and
the crimes of which they were convicted.
2 The requirement of normative order does not, of course, say
anything one way or the other about considering exceptionally unusual
physical appearance as a basis to anticipate abuse.
3 It is true, factually, that successive federal prosecutions after state
proceedings occur very rarely even in criminal civil rights
prosecutions, U. S. Commission on Civil Rights, Who is Guarding
the Guardians?, 112, 116 (Oct. 1981) (noting that between 50 and
100 police misconduct cases are brought each year and that from
March 1977 to September 1980 only seven successive prosecutions
were authorized); United States v. Davis, 906 F. 2d 829, 832 (CA2
1990) ("In practice, successive prosecutions for the same conduct
remain rarities"). Those figures do not, however, demonstrate that all
convictions on successive federal prosecutions under 18 U. S. C.
Section 242 should for that reason be subject to discretion to depart
downward, for they do not take account of the normative ordering,
discussed below.
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