OCTOBER TERM, 1995
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. § 242 of violating the victim's constitutional rights
under color of law. Although the applicable United States
Sentencing Guideline, 1992 USSG § 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.
92-100.
(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. § 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, § 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,
*Together with No. 94-8842,
Powell v.
United
States, also on certiorari to the same court.
82
Syllabus
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.92-96.
(b) Although 18 U. S. C. §3742 established a limited appellate
review of sentencing decisions, § 37 42(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 dayto-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 abuseof-discretion standard of review, not
de novo review. See,
e. g., Cooter &
Gell v.
Hartmarx Corp., 496 U. S. 384,403. Pp.
96-100.
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. 100-114.
83
(a) Victim misconduct is an encouraged basis for departure under
USSG § 5K2.1O, 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 § 2H1.4, the
Guideline applicable to 18 U. S. C. § 242, both as a mechanical
matter and in interpreting its heartland. As the court recognized,
§ 2H1.4 incorporates the Guideline for the offense underlying the §
242 violation, here § 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 § 5K2.1O
was justified because the punishment prescribed by § 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. 101-105.
(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 policymaking authority that
Congress vested in the Commission, and 18 U. S. C. § 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. 106-109.
(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 §
2H1.4. Thus, the career loss factor, as it exists in this suit,
cannot take the suit out of § 2H1.4's heartland. Pp. 109-111.
(d) The low likelihood of petitioners' recidivism was also an
inappropriate ground for departure, since the Commission
specifically ad-
84
Syllabus
dressed this factor in formulating the sentencing range for
petitioners' criminal history category. See §4A1.3. P.111.
(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. 111-112.
(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
action to the District Court. Pp. 113-114.
34 F.3d
1416, affirmed in part, reversed in part, and remanded.
KENNEDY, J., delivered the opinion of the Court, which was
unanimous except insofar as STEVENS, J., did not join Part IV-B-1,
and SOUTER, GINSBURG, and BREYER, JJ., did not join Part IV-B-3.
STEVENS, J., filed an opinion concurring in part and dissenting in
part,
post, p. 114. SOUTER, J., filed an opinion concurring
in part and dissenting in part, in which GINSBURG, J., joined,
post, p. 114. BREYER, J., filed an opinion concurring in
part and dissenting in part, in which GINSBURG, J., joined,
post, p. 118.
Theodore B. Olson argued the cause for petitioner in No.
94-1664. With him on the briefs were
Theodore J.
Boutrous, Jr., John K. Bush, Richard J. Leighton,
Joel Levine, and
Ira M. Salzman. William J.
Kopeny argued the cause and filed briefs for petitioner in
No. 94-8842.
Deputy Solicitor General Dreeben argued the cause for the United
States in both cases. With him on the brief were Solicitor General
Days, Assistant Attorney General Patrick, Acting Assistant Attorney
General Keeney, Irving
85
L. Gornstein, Jessica Dunsay Silver, Linda F. Thome, and Vicki
Marani. t
JUSTICE KENNEDY delivered the opinion of the Court. The United
States Sentencing Commission 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. §
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 banco In this suit we explore the
appropriate standards of appellate review of a district court's
decision to depart from the Guidelines.
I A
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 num-
tBriefs of
amici curiae urging reversal were filed for
the Law Enforcement Legal Defense Fund by
Richard K. Willard
and
David Henderson Martin in No. 94-1664; for the National
Association of Criminal Defense Lawyers by
Lawrence S.
Goldman in No. 94-1664; and for the National Association of
Police Organizations, Inc., by
William J.
Johnson and
Byron L. Warnken in both cases.
86
ber 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
87
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: "'V[nit] just had a big time use of force ....
Tased and beat the suspect of CHP pursuit big time.'"
Ibid.
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.
B
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
88
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, pp. 10-11.
On August 4, 1992, a federal grand jury indicted the four
officers under 18 U. S. C. § 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. United States Sentencing Commission,
Guidelines Manual § lB1.1 (Nov. 1992) (1992 USSG). Coordinating the
adjusted offense level and criminal history category yields the
appropriate sentencing range.
Ibid.
The District Court sentenced petitioners pursuant to 1992 USSG §
2H1.4, which applies to violations of 18 U. S. C. § 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 § 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, § 2A2.2(b)(2)(B). The
Government asked the court also to add four levels for
89
King's serious bodily injury pursuant to § 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 § 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. 833 F. Supp.
769, 778 (CD Cal. 1993).) The court did add two levels for bodily
injury pursuant to § 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 1. 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," § 5K2.10, p. s. 833 F. Supp., at 787. 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[edJ" 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
90
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, at 1451. 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
91
court inconsistent with the sentencing goals of 18 U. S. C. §
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 socioeconomic
status, a consideration that, under 1992 USSG § 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 § 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. 515 U. S. 1190 (1995). 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.
92
II
The Sentencing Reform Act of 1984, as amended, 18 U. S. C. §
3551
et seq., 28 U. S. C. §§ 991-998, made farreaching
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. § 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, p. 1 (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. § 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. § 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
93
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 that never can be bases for
departure (race, sex, national origin, creed, religion,
socioeconomic status, 1995 USSG § 5H1.10; lack of guidance as a
youth, § 5H1.12; drug or alcohol dependence, § 5H1.4; and economic
hardship, § 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
94
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 § 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 that 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." § 5K2.0. Victim
provocation, a factor relied upon by the District Court in this
suit, is an example of an encouraged downward departure factor, §
5K2.10, whereas disruption of a governmental function is an example
of an encouraged upward departure factor, § 5K2.7. Even an
encouraged factor is not always an appropriate basis for departure,
for on some occasions the applicable Guideline will have
95
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 governmental 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." §
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 § 5H1.6, his or her education and
vocational skills, § 5H1.2, and his or her military, civic,
charitable, or public service record, § 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
96
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,"
ibid., 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, p. 6.
Against this background, we consider the standard of review.
III
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. §
3742. Among other things, it allows a defendant to appeal an upward
departure and the Government to appeal a downward one. §§ 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
97
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 § 3742 manifests an
intent that district courts retain much of their traditional
sentencing discretion. Section 3742(e)(4), 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 §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.'" Id., at 205 (quoting Solem v.
Helm, 463 U.
S. 277, 290, n. 16 (1983)).
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").
98
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. § 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
Sen-
99
tencing 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 factspecific
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. § 2412(d), that the
position of the United States was "substantially justified,"
thereby precluding an award of attorney's 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 particu-
100
lar 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 that 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
suit, 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 "appl[y] 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.
IV
The principles we have explained require us to reverse the
rulings of the Court of Appeals in significant part.
101
A
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 § 5K2.10; 1995 USSG § 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. § 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 § 242
can arise in a myriad of forms, and the Guideline applicable to the
statute applies to any violation of § 242 regardless of the form it
takes. 1992 USSG § 2H1.4. Section 2H1.4 takes account of the
different kinds of conduct that might constitute a § 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, § 2H1.4 incorporates the base offense level
of the underlying offense; as a consequence, the heartland of §
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 § lB1.5(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 § 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 § 2H1.4, and that "the
harm involved both the underlying conduct and activity intended
102
to deprive a person of his civil rights,"
ibid.
(incorporating introductory commentary to § 2H1.1).
The District Court's analysis of this departure factor showed a
correct understanding in applying § 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 § 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
103
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
104
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." 34 F. 3d, at 1459 (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 § 5K2.10. Furthermore,
even if an immediate response were required by § 5K2.10, it
occurred here: The excessive force followed within seconds of
King's misconduct.
The Court of Appeals misinterpreted the heartland of § 2H1.4 by
concentrating on whether King's misconduct
105
made this an unusual case of excessive force. If § 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 § 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 § 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 § 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 sixlevel 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 § 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.
106
B
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. § 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 a 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 exceptions, 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
107
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 § 5H1.4, to make [p]hysicial ... appearance,
including physique," a discouraged factor. 1995 USSG App. C, Arndt.
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. § 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."
108
Echoing the Court of Appeals, the Government interprets §
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 § 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. § 3553(a).
Even if the text of the statute were ambiguous, we would reject
the Government's interpretation. The Government's theory-that §
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 § 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. § 991(b)(1), and Congress instructed the Commission, not
the courts, to "review and revise" the Guidelines periodically, §
994(0). 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 ex-
109
pect 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.
1
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
courtimposed 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 fac-
110
tor 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 socioeconomic 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, socioeconomic
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 suit
out of the heartland of 1992 USSG § 2H1.4. As noted above, 18 U. S.
C. § 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. § 19572(k) (West 1995)
("Conviction of a felony or conviction of a misdemeanor involving
moral turpitude" constitutes cause for dismissal); § 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 § 7.173 (1995). Public
officials convicted of violating § 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
111
to the career-related consequences petitioners faced after
violating § 242, so we conclude these consequences were adequately
considered by the Commission in formulating §2H1.4.
2
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 1. 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 § 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.
3
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
112
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. § 242 of using unreasonable
force in arresting a suspect, sentenced under § 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.
113
V
The goal of the Sentencing Guidelines is, of course, to reduce
unjustified disparities and so reach toward 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
114
Opinion of SOUTER, J.
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 cases are remanded for further
proceedings consistent with this opinion.
It is so ordered.
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.
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 106, "Congress did not
grant federal courts authority to decide what sorts of sentencing
considerations are inappropriate in every circumstance." In
115
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. § 3553(b); see
also
ante, at 92-93. While discussing departures, the
Commission quotes this language from § 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
Commission, 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
pre-
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.
116
Opinion of SOUTER, J.
cisely 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 § 5H1.4; see also
ante, at 107; 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
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
117
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. § 245(a)(1) (West 1988), and being an officer
unnecessarily assaulting or beating any person in violation of §
149); § 149 ("Every public officer who, under color of authority,
without lawful necessity, assaults or beats any person" commits an
offense); § 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 87-88
(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
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. § 242 should for that reason
be subject to discretion to depart downward, for they do not take
account of the normative ordering, discussed below.
118
Opinion of BREYER, J.
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.
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 IVB-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 § 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 enforce-
119
ment 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 116-118, lead me to
conclude on the basis of the statute and Guideline itself, 18 U. S.
C. § 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 §
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 115-116, 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," §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.
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