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QUESTION PRESENTED
Whether, in reviewing the district court's determination that several factors formed a valid basis for a departure from the sentencing range applicable to petitioners under the Sentencing Guidelines, the court of appeals correctly applied a de novo standard of review and correctly concluded as a matter of law that the district court in this case departed downward on the basis of invalid factors.
STATEMENT
Following a jury trial in the United States District Court for the Central District of California, petitioner Powell was convicted of willfully using unreasonable force during the arrest of Rodney King, in violation of 18 U.S.C. 242. Petitioner Koon was convicted of willfully permitting other police officers to use unreasonable force during King's arrest, in violation of 18 U.S.C. 242. Petitioners were sentenced to 30 months' imprisonment. The court of appeals affirmed the convictions, but vacated the sentences and remanded for

resentencing.


1. In the early morning hours of March 3, 1991, Rodney King was driving while intoxicated on a freeway in Los Angeles, California. Officers of the California Highway Patrol (CHP) observed King's car speeding and began to pursue it. When the car left the freeway the CHP officers radioed for help, and officers of the Los Angeles Police Department (LAPD) joined in the pursuit. The pursuit ended when King pulled his car into an entrance to a recreation area. Petitioner Powell was one of the LAPD officers who pursued King. Petitioner Koon, an LAPD sergeant, arrived after the pursuit had ended and took command of the scene. Pet. App. 2a.
Officers ordered King and his two passengers to get out of the car and assume a felony prone position, i.e., to lie face down on the ground, with arms and legs spread. King got out of the car, but he did not lie down. Eventually, King got down on his hands and knees but did not assume the felony prone position. Four officers, including Powell, attempted to force King into that position. King resisted and became combative, and the officers retreated. Koon fired two taser darts from an electric stun gun into King. Pet. App. 2a.
The events that followed were captured on a videotape made by George Holliday, which was an exhibit at trial (U.S. Exh. 20). As the videotape begins, it shows King rising from the ground in an attempt to escape. Powell struck King in the head with his baton. Powell and co-defendant Wind continued to strike King with their batons, and King fell to the ground. At 18 seconds on the tape, co-defendant Briseno put his hand on Powell's raised baton. From the 18th to the 30th second on the tape, King attempted to rise, and Powell and Wind again struck King with their batons. King then toppled to the ground. Pet. App. 2a-3a; U.S. Exh. 20.
From the 35th to the 51st second, Powell repeatedly struck King with his baton, as King lay on the ground. At approximately the 43d second, one of the blows fractured King's leg. At the 55th second, Powell struck King on the chest or upper abdomen, and King rolled onto his stomach and lay prone. At that point, the officers stepped back and observed King for approximately ten seconds. Powell began to reach for his handcuffs. Pet. App. 3a; U.S. Exh 20.
At 1:07 on the tape, Briseno stomped on King's upper back or neck. After King writhed reflexively, Powell and Wind hit King with a series of baton blows, and Wind kicked him in the upper thoracic or cervical area six times, until approximately 1:26. At approximately 1:29, King put his hands behind his neck and be was then handcuffed. Pet. App. 3a, 102a.
Powell used his hand-held radio to request an "RA [rescue ambulance]" for the "victim of a * * *" and Koon yelled the word "beating." In response, Powell laughed and described King's injuries in the radio call as"numerous head wounds." 2/26/93 PM Tr. 17-18; 3/5/93 PM Tr. 62-65; 3/24/93 Tr. 85; Exh. 19. After the arrest, Powell sent messages to another officer over the Mobil Digital Terminal, saying "ooops" and "I haven't beaten anyone this bad in a long time." Koon sent a message to the police station stating: "Unit just had a big time use of force . . . . Tased and beat the suspect of CHP pursuit big time." Pet. App. 3a.
King was taken to a hospital where he was treated for a fractured leg, multiple facial fractures, and numerous bruises and contusions. At the hospital, Powell said to King: "We played a little ball tonight, didn't we Rodney? * * * You know, we played a little hard 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." Pet. App. 3a.
Koon, Powell, Briseno, and Wind were tried in state court in Simi Valley, California, on charges of assault with a deadly weapon and excessive use of force by a police officer. The four officers were acquitted on all charges, except for one count against Powell that resulted in a hung jury. Pet. App. 4a.
Thereafter. petitioners, along with Briseno and Wind, were indicted by a federal grand jury under 18 U.S.C. 242 for violation of King's constitutional rights under color of state law. Powell, Briseno, and Wind were charged with willfully using unreasonable force in arresting King. Koon was charged with willfully permitting the other officers to use unreasonable force during the arrest. The jury convicted petitioners and acquitted Briseno and Wind. Pet. App. 4a.

2. The district court sentenced petitioners under Guidelines @ 2H1.4 of the United States Sentencing Commission Guidelines Manual (Nov. 1992), which applies to violations of 18 U.S.C. 242. Pet. App. 96a, 108a. Section 2H1.4 prescribes a base offense level that is the greater of ten, or six plus the offense level of the underlying offense. The court found that the underlying offense for both petitioners was aggravated assault, for which Guidelines @ 2A2.2(a) prescribes a base offense level of 15. Pet. App. 109a-112a. That led to a base offense level of 21. The court increased that offense level for both petitioners by four levels because a danagerous weapon was used (see Guidelines @ 2A2.2(b)(2)(B)), and by two levels because King had suffered bodily injury as a result of petitioners' unlawful conduct (see Guidelines @ 2A2.2(b)(3)(A)). Pet. App. 112a-115a. The adjusted offense level was therefore 27. Id. at 115a, 118a. Because neither petitioner had a criminal record, they fell within criminal history category I. The sentencing range for an offense level of 27 and criminal history category I is 70 to 87 months' imprisonment. U.S.S.G. Ch. 5 Pt. A (Sentencing Table).


The district court, however, granted both petitioners a downward departure from the prescribed Guidelines range. It granted a three-level departure based on a combination of factors and a five-level departure based on victim misconduct. The departure yielded an offense level of 19, and a sentencing range of 30 to 37 months' imprisonment. Pet. App. 134a-135a. The court sentenced both petitioners to 30 months' imprisonment. Id. at 135a.
a. The district court based the three-level combination departure on (1) the additional punishment resulting from petitioners' job termination proceeding and susceptability to abuse in prison; (2) the absence of a need to protect the public from further criminal actvitity by petitioners; and (3) the purported "specter of unfairness" resulting from successive state and federal prosecutions for the same conduct. Pet. App. 120a: see id. at 121a, 124a-131a.
With respect to the first factor, the court found that petitioners would face a job-termination proceeding, 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 those deprivations entail. Pet. App. 127a-128a. The court also concluded that, because of the "widespread publicity and emotional outrage which have surrounded this case," petitioners were "likely to be targets of abuse" in prison. Id. at 125a. As for the second factor, the court found that petitioners were not "violent, dangerous, or likely to engage in future criminal conduct," and that there was therefore "no reason to impose a sentence that reflects a need to protect the public from [them]." Id. at 129a. Finally, the court stated that successive state and federal prosecutions for the same conduct unfairly burdened petitioners. Id. at 130a. In the court's view, while the federal prosecution had not violated petitioners' constitutional rights, it had "raised a specter of unfairness." Ibid. The court concluded that, although none of the three factors standing alone would justify a departure (id. at 120a), when "taken together," they did. Id. at 121a.
The court awarded the five-level downward departure pursuant to Guidelines @ 5K2.10 (policy statement), which permits a departure "if the victim's wrongful conduct contributed significantly to provoking the offense behavior." Pet. App. 57a, 121a-124a, 132a. The court acknowledged that, "by the time [petitioners'] 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." Id. at 123a. The court believed that Section 5K2.10 was nonetheless applicable because, but for King's speeding, petitioners would never have been present at the scene, and but for King's initial wrongful conduct in resisting arrest and attempting to escape, no force would have been necessary in the first place, and the incident would not have occurred at all. Id. at 122a-123a.
The court also held that, because of the role that King's misconduct had played in the offense, petitioners' conduct did not fall within the "heartland" of offenses contemplated by the guidelines that apply to excessive force cases. Pet. App. 123a. The court viewed cases in which state officials deliberately use excessive force, without any cause to initiate the use of force, as the heartland of Guidelines @ 2H4.1. The court concluded that the Guidelines do not adequately account for the differences between such heartland cases and cases in which an official's use of force is lawful at the outset. Pet. App. 123a-124a.
3. The court of appeals affirmed petitioners' convictions, but vacated their sentences and remanded for resentencing. Pet. App. 1a-79a. The court of appeals reviewed de novo the question whether the district court had authority to depart from the Guidelines sentencing ranges, while reviewing the district court's factual findings only for clear error. Id. at 57a. The court held that a district court has legal authority to depart only when a proposed "mitigating" factor has not been adequately considered by the Sentencing Commission, see 18 U.S.C. 3553(b), Pet. App. 57a, and only when that ground is consistent with the sentencing purposes and structure of the Sentencing Reform Act of 1984, id. at 58a (citing 18 U.S.C. 3553(a) (court "shall impose a sentence sufficient" to comply with the purposes of retribution, deterrence, incapacitation, and rehabilitation). The court added that although sec. 3553(b) does not define the term "aggravating or mitigating circumstance," the term does suggest a factor that constitutes a permissible basis for departure only if it speaks to the culpability of the defendant or the severity of the offense, or if it is otherwise related to some other congressionally-authorized legitimate sentencing concern. Pet. App. 60a, quoting United States v. Crippen, 961 F.2d 882, 884 (9th Cir.), cert. denied, 113 S. Ct. 438 (1992) (emphasis deleted).
a. Applying that analysis, the court of appeals held that the district court erred in awarding the three-level departure based on a combination of three factors. Pet. App. 58a-69a. The court did not disagree with the district court's conclusion that several factors can sometimes be combined to form a basis for departure, even though no factor alone would warrant it. The court held, however, that each of the factors must still be examined to determine whether considering it as part of a mix is consistent with the structure and purposes of the Guidelines and the federal sentencing statutes. Id. at 58a-59a.
The court of appeals then held that none of the factors relied on by the district court formed a permissible component of a combination departure. The court concluded that the personal and professional consequences stemming from a criminal conviction are not permissible grounds for departure because they are "not tied to any penological purpose or legitimate sentencing concern expressed in the federal sentencing statutes." Pet. App. 62a. The sentences imposed under the Guidelines, the court explained, were not conceived to be the sole consequence of conviction for criminal offenses; collateral consequences such as job loss and social stigma are ordinary consequences of a criminal conviction. Ibid. Any attempt to separate collateral consequences that should serve as a ground for a departure from those that should not, the court noted, "would be boundless in the moral, social, and psychological examinations it required courts to make" and "can only lead to huge disparities," in contravention of "one of the overriding purposes of the Sentencing Guidelines." Id. at 63a. That factor could also be used "consciously or unconsciously" as a way to take into account socio-economic status, "a factor that is never a permissible basis for departure." Id. at 63a.
The court of appeals held that susceptibility to abuse in prison by virtue of a person's status is also an impermissible factor to consider. Pet. App. 64a-66a. The court explained that such a departure ground is both "subjective and and open-ended" and could be applied to numerous groups, such as gang members who may face increased abuse from members of a rival gang, police informants, or child abusers. Id. at 65a-66a. Noting that "the number of defendants who might qualify * * * is virtually unlimited," the court concluded that acceptance of that ground for a departure "would subvert the Guidelines' goal of reducing unwarranted disparities in sentencing." Id. at 66a.
The court of appeals next held that it was impermissible to consider the fact that petitioners are unlikely to engage in future unlawful conduct. Because the Commission has stated that the lower end of criminal history category I is set for an offender with no risk of recidivism, the court explained, that factor is already taken into account by the Guidelines. Pet. App. 67a-68a.
Finally, the court of appeals concluded that the district court's perception of a "specter of unfairness" arising from the successive state and federal prosecutions is not a permissible departure factor "because it speaks neither to the culpability of the defendant, the severity of the offense, nor to some other legitimate sentencing concern." Pet. App. 68a-69a. The court added that recognizing such a departure ground would conflict with the court's duty under 18 U.S.C. 3553(a)(2)(A) to impose a sentence that "reflects the seriousness of the offense," and would undermine the Attorney General's determination that compelling federal interests warranted a second prosecution. Id. at 69a.
b. The court of appeals likewise held that the five-level departure for victim misconduct was not justified. The court explained that the district court's findings demonstrated that King's misconduct provoked only petitioners' initial lawful use of force, not their "offense behavior," as required by Guidelines @ 5K2.10. By focusing on whether King's misconduct was a but-for cause of the unlawful conduct, rather than on whether that misconduct actually "provoked" the offense behavior, the district court had applied an incorrect legal standard. Pet. App. 70a-71a.
The court of appeals also concluded that the incident's volatility, and the fact that petitioners were justified in using force at its inception, did not remove the case from the "heartland" covered by Guidelines @ 2H1.4. The court observed that in deciding whether a particular use of force is reasonable. Graham v. Connor, 490 U.S. 386, 396-397 (1989), expressly requires consideration of the fact that a police officer must often make split-second decisions about the amount of force required. That standard "strongly suggests that provocation by the victim in a situation where an officer must act quickly is typical--not unusual." Pet. App. 73a. The district court's view that such provocation takes a case out of the heartland, the court of appeals concluded, is particularly inapt in a criminal prosecution, in which the government must make the difficult showing that police officers "willfully came down on the wrong side of the Graham standard." Ibid.
4. The panel voted to deny rehearing, and the full court voted to deny the suggestions of rehearing en banc. Pet. App. 80a-81a. Judge Reinhardt, joined by eight other judges, dissented from the denial of rehearing en banc on the sentencing issues. Id. at 81a-93a. The dissent argued that district courts should have considerable discretion to depart and that their decisions should be reviewed under a deferential standard. Id. at 88a-90a.
SUMMARY ON ARGUMENT
I.A. Congress enacted the Sentencing Reform Act of 1984 to eliminate what it viewed as intolerable disparities in sentences resulting from the unreviewable discretion exercised by individual district courts. It authorized the Sentencing Commission to establish sentencing ranges for defendants with similar criminal histories and similar offense conduct that would be binding on the courts, and it narrowly limited the circumstances in which courts may depart from those sentencing ranges. To depart downward from the applicable sentencing range, there must be a "mitigating" factor that has not been adequately considered by the Commission. 18 U.S.C. 3553(b). All departures must also be consistent with the purposes of sentencing stated in 18 U.S.C. 3553(a)(2)(retribution, deterrence, incapacitation, and rehabilitation). A crucial element of the
federal sentencing scheme, not present in the prior system, is appellate review of sentences to enforce those limitations and to protect against unwarranted disparities arising from the differing sentencing approaches of individual district judges.
B. The language, structure, and purposes of the Sentencing Reform Act show that Congress intended courts of appeals to exercise de novo review over the validity of a ground for departure. The statute requires appellate courts to accept district court findings of fact unless they are clearly erroneous, and to give "due deference to a district court's application of the guidelines to the facts." 18 U.S.C. 3742(e). The logical inference is that Congress intended reviewing courts to undertake de novo review of a district court determination that a factor is a legally permissible ground on which to depart. A de novo standard is consistent with the traditional plenary review of legal issues. The question whether the Commission has adequately considered a factor is essentially a matter of Guidelines interpretation, and the question whether a factor is consistent with the statutory sentencing goals is essentially a matter of explicating the statute. Both questions are therefore legal ones fit for a de novo standard.
The legislative history of the Sentencing Reform Act also supports de novo review. It shows that Congress contemplated that appellate courts would develop case law on departure grounds and that they would review legal issues de novo. That standard has its usual law-clarifying benefits, because departure decisions present recurring issues, and plenary review fosters a consistent and coherent body of departure law. De novo review is also essential to achieve Congress's goal of preventing unwarranted disparities in sentencing. Departures are potentially a huge loophole in Congress's sentencing scheme. Failure to apply close appellate oversight could lead to a return of disparate sentencing practices that Congress sought to replace.
II. The district court in this case relied on a variety of factors to depart downward by a total of eight levels from the Guidelines range. None of those factors constituted a legally permissible basis for departure.
A. All of the bases for the district court's three-level departure are impermissible ones. Job loss and its attendant consequences are in the heartland of excessive force cases. Moreover, because there is no judicially manageable standard for deciding which collateral consequences of conviction warrant a departure, acceptance of that general ground would invite, and inevitably produce, unwarranted disparities in sentencing. It would also lead to effects that are indistinguishable from sentencing based on socio-economic status, a prohibited factor under the Act and Guidelines.
Unusual susceptibility to abuse in prison is also an impermissible factor. The degree of a defendant's vulnerability is entirely subjective, and the number of potential defendants who could claim unusual vulnerability is virtually unlimited. Permitting a downward departure on that ground would thus lead to unwarranted disparities. The Bureau of Prisons has a constitutional responsibility to protect persons it knows are unusually vulnerable to assault, and courts may not assume that it will not be fulfilled.
Nor is the likelihood that a defendant will not commit crime in the future a valid departure consideration; that factor is already taken into account in the defendant's criminal history category. While the Commission has authorized a departure when a defendant's criminal history category overstates the likelihood of recidivism, it has prohibited a departure on that basis below the bottom of criminal history category I.
Finally, this Court's double jeopardy decisions conclusively establish that there is no legally cognizable unfairness from successive state and federal prosecutions for the same conduct. Acceptance of successive prosecution as a departure ground would undermine the Attorney General's determination that compelling federal interests justified the prosecution in this case.
Because none of the departure grounds discussed above is permissible, a departure based on all of those grounds combined is also impermissible.
B. The district court's five-level departure for victim misconduct was also unwarranted. Under Guidelines @ 5K2.10, victim misconduct must be a motivating factor for the offense behavior, not merely a but-for cause of it. The district court's findings, however, establish only that King's conduct provoked the incident itself and the initial lawful use of force; King's conduct did not provoke the offense behavior as required by Section 5K2.10. The district court's application of Section 5K2.10 therefore rests on an erroneous construction of the Guidelines.
Further, ordinary victim misconduct lies in the heartland of excessive force cases. The legal standard for determining whether an official used constitutionally excessive force is framed to account for victim misconduct. The requirement in a criminal case that the government prove that a defendant has acted willfully in using unreasonable force reinforces the conclusion that ordinary victim misconduct is not a mitigating factor.


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