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Whether a district court's downward departure from the prescribed range of the United States Sentencing Guidelines based upon factors not expressly prohibited as grounds for departure is to be reviewed under the de novo standard applied by the court below or under the deferential standard set forth in United States v. Rivera, 994 F.2d 942 (1st Cir. 1993), and other cases.
A. Statement Of The Facts

1. Rodney King's Arrest

On the evening of March 2, 1991, Rodney Glen King met two male friends in a suburb of Los Angeles. Pet. App. 96a-97a. For several hours, Mr. King and his friends drank malt liquor in his wife's parked Hyundai automobile, after which they then decided to go for a ride, with Mr. King driving. Id. 97a.
Mr. King was "intoxicated while driving." Id. 121a; see also id. 2a, 97a. He was proceeding along the 210 Freeway towards the San Fernando Valley, id. 2a, 97a, when California Highway Patrol ("CHP") Officers Melanie Singer and Tim Singer observed Mr. King's speeding vehicle and commenced in pursuit with red lights flashing and siren activated. Id. Officer Melanie Singer estimated that Mr. King's vehicle was traveling in excess of 100 m.p.h. Id.

Mr. King ignored the CHP cruiser pursuing him, and sped to an exit off the freeway. Id. 97a-98a. The chase continued for eight miles on surface streets, with Mr. King driving in an erratic fashion, slowing down and obeying some traffic signals and speeding up and running red lights at others. Id.

Officer Melanie Singer called over her radio for assistance. Id. 2a, 97a. Los Angeles Police Department Officers Laurence M. Powell and Timothy E. Wind, along with patrol officers from the Los Angeles Unified School District, responded to the call and joined in pursuit of Mr. King's vehicle. Id. 2a, 97a. During the pursuit by the three vehicles, the CHP officers ordered Mr. King by loudspeaker to stop, but he refused to do so. Id. 97a.
Mr. King finally came to a stop at an entrance to the Hanson Dam recreation area. Id. 2a, 98a. Officer Melanie Singer ordered Mr. King and his companions to exit from the vehicle. Id. Mr. King's companions followed these instructions and were taken into custody without incident. Id. 98a. Mr. King repeatedly ignored Officer Singer's orders to get out of the automobile. Id. 98a. When he eventually emerged from the vehicle, he refused to follow repeated orders to lie on the ground. Id.; see also id. 2a.
At this point Sergeant Stacey C. Koon arrived, joined moments later by LAPD Officers Theodore J. Briseno and Rolando Solano. Id. 2a, 98a. Officer Melanie Singer continued to attempt unsuccessfully to get Mr. King, a "still unsearched felony suspect," id. 122a, to lie on the ground with his hands visible. Id. 98a. Although Officer Singer unholstered her weapon and "pointed her service revolver at him," Mr. King would not "lie prone" but instead "moved around on his hands and knees." Id.
Sergeant Koon commanded Officer Singer to put away her weapon, and the LAPD officers again ordered Mr. King to lie in a prone position. He continued to refuse to do so. Id. 2a, 98a. Officers Powell, Wind, Briseno, and Solano then jointly struggled to place Mr. King in a prone position. Id. Mr. King was "a large, muscular man" and, "at 6'3" and approximately 225 lbs.," "appreciably larger than both Koon and Powell." Id. 98a, 122a. Mr. King "resisted and became combative," throwing off all four officers and "forcing [them] . . . to retreat." Id. 98a; see also id. 2a.

Mr. King was "sweating profusely," and in light of his "erratic and recalcitrant behavior," the district court concluded that it was "reasonable" for Sergeant Koon "to have suspected" at this point "that Mr. King was under the influence of PCP." Id. 101a. Sergeant Koon fired two taser darts into Mr. King without any apparent effect, reinforcing Sergeant Koon's impression that Mr. King's conduct was the result of PCP. Id. 101a. The officers reasonably perceived Mr. King as dangerous; an unsearched felony suspect who was resisting arrest. Id. 122a.

Mr. King then tried to escape, plunging into a gap between the Hyundai and a police vehicle toward an unlit portion of the Hanson Dam recreation area. Id. He "rapidly rose to his hands and knees, and to his feet . . . [,] turned, outstretched his arms forward, and charged towards Officer Powell." Id. Officer Powell struck him with a side-handle baton, unintentionally striking Mr. King's head. Id. 103a. Mr. King was knocked to the ground but persisted in struggling, attempting to rise, resisting commands to lie prone and continuing to "pose an apparent threat." Id. 101a.
The latter portion of the arrest was recorded on videotape by a bystander. Id. 2a, 98a-99a. That videotape became the subject of widespread media attention. "It was shown over and over and over again," Powell v. Superior Court, 283 Cal. Rptr. 777, 780, 232 Cal. App. 3d 785, 790 (1991), "'from Paris to Tokyo,'" as federal prosecutors would later remind the jury, see Pet. App. 44a (quoting closing argument); see also id. 66a n.35 ("The entire world was aware of the arrest of Rodney King."). The videotape "created a vivid impression of a violent encounter." Id. 99a. The initial showing "caused shock, revulsion, outrage and disbelief. . . . A fire storm immediately developed in the Los Angeles area, so intense and pervasive was the reaction to the videotape." Powell, 283 Cal. Rptr. at 779, 232 Cal. App. 3d at 789.
As the district court found in its sentencing memorandum, however, "careful analysis shows that [the videotape was] . . . sometimes an ambiguous record of the crucial events." Pet. App. 99a. The court of appeals concurred. Id. 78a. Even federal prosecutors "agreed that much of the officers' conduct was justified and legal." Id. 99a.
Approximately the first minute of the videotape records efforts by Officers Powell and Wind to overcome Mr. King's resistance to arrest and his attempt to escape. Id. 2a-3a, 101a. The district court found that Officer Powell's actions during this period did not rise "to the level of criminal deprivation of Mr. King's rights." Id. 102a. Following a blow to Mr. King by Officer Briseno at one minute and five seconds into the videotape that Sergeant Koon "could not have anticipated," id. 106a, Officers Powell and Wind applied physical force during an interval lasting slightly under 19 seconds that the district court found "crossed the line between legal and illegal behavior." Id. 107a; see also id. 3a, 102a. The district court found that the application of unlawful force to Mr. King began at 1:07.28 into the videotape and ended at 1:26.00. See id. 102a, 107a. At approximately one minute and 30 seconds, Officer Powell gave his handcuffs to Officer Briseno, and 12 seconds later, Mr. King ultimately was handcuffed. Id. 102a. A few seconds later, the arrest was completed. Id. Sergeant Koon's ultimate conviction was predicated upon his failure to prevent illegal behavior toward Mr. King during the 19-second interval.
2. The First Prosecution
State prosecutors indicted Sergeant Koon and Officers Powell, Wind and Briseno on assault and related charges based on allegations that excessive force was used during the arrest. Pet. App. 4a. The state case was initially assigned for trial in Los Angeles, but the California Court of Appeal determined that the "massive local media coverage" had been "so extensive and pervasive" and the "political fallout" "so intense" that "there [was] a reasonable likelihood that a fair and impartial trial [could not] be had in Los Angeles County." Powell, 283 Cal. Rptr. at 780, 232 Cal. App. 3d at 790. The case was accordingly transferred to and tried in Simi Valley, California. Pet. App. 4a. Sergeant Koon's defense during this trial was "that the force used during the arrest of King was justified and was not excessive." Id.

On April 29, 1992, Sergeant Koon was acquitted on all charges. Id. His co-defendants were also acquitted of all charges, with the exception of a single assault charge against Officer Powell, on which the jury was unable to return a verdict. Id.

The verdicts touched off four days of extensive and widespread rioting in Los Angeles. See generally Greg Braxton & Jim Newton, Looting and Fires Ravage L.A., L.A. TIMES, May 1, 1992, at A1. The level and extent of civil disorder during those days were among the worst in California's and, indeed, the nation's history. Fifty-three persons were killed, hundreds were injured, and more than $ 1 billion in property, including over 5,000 buildings, was destroyed. George J. Church, Cries of Relief, TIME, Apr. 26, 1993, at 19; Douglas Jehl & Frederick M. Meier, Bush Arrives in L.A., Calls for Healing, L.A. TIMES, May 7, 1992, at A1; Jim Newton, Officers Guilty, 2 Acquitted, L.A. TIMES, Apr. 18, 1993, at A1; WILLIAM H. WEBSTER, THE CITY IN CRISIS: A REPORT BY THE SPECIAL ADVISOR TO THE BOARD OF POLICE COMMISSIONERS ON THE CIVIL DISORDER IN LOS ANGELES 23 (Oct. 1992).
3. The Second Prosecution
After the rioting, there were widespread calls from political and community leaders for federal prosecution of petitioner and his co-defendants to quell the anger in Los Angeles over the state court verdicts. Jack Nelson, Bush Denounces Rioting in L.A. as "Purely Criminal," L.A. TIMES, May 1, 1992, at A9. The customary practice of the Department of Justice is not to prosecute an individual who has already been prosecuted under state law "for the same act or acts," except under "compelling" circumstances. See Rinaldi v. United States, 434 U.S. 22, 24-31 (1977). Federal prosecutors nevertheless obtained an indictment against Sergeant Koon and his co-defendants on August 4, 1992, on charges of violating 18 U.S.C. @ 242. Pet. App. 4a. To obtain convictions, federal prosecutors had to prevail on the same central factual issues that had been decided in petitioner's favor by the state jury: "whether Defendants' conduct constituted a use of excessive force, and whether such use was intentional." Id. 147a; see also id. 14a ("The ultimate issue in the [federal] case was . . . whether [the defendants] . . . willfully used unreasonable force.").
The federal trial commenced on February 25, 1993, in the center of Los Angeles County, within blocks of buildings destroyed in the rioting and looting. Id. 4a. The federal jury returned its verdict on April 16, 1993, but the verdict was not publicly announced until April 17, 1993. Id. On the morning of April 17, Los Angeles police, along with 600 National Guardsmen and United States Marines, stood by in the event of another acquittal-inspired riot. Church, supra, at 18. The federal jury returned guilty verdicts against Sergeant Koon and Officer Powell, however, and rioting never occurred. See Pet. App. 4a.
4. Sentencing
Following a hearing on August 4, 1993, Sergeant Koon was sentenced to a term of thirty months in prison and two years supervised release. Pet. App. 4a. This sentence was imposed for Sergeant Koon's failure to prevent the unlawful application of force against Mr. King by Officers Powell and Wind during the 19-second period immediately prior to the handcuffing of Mr. King. Id. 107a.
The district court issued a 54-page detailed, comprehensive compilation of findings and an explanation of its sentencing decision. It began its sentencing calculations pursuant to @ 2H1.4 of the United States Sentencing Guidelines, which provides that the base offense level for a violation of 18 U.S.C. @ 242 is "the greater of (1) 10; or (2) 6 plus the offense level applicable to the underlying offense." Pet. App. 108a. Although petitioner had been acquitted of assault charges in the state trial, the district court agreed with the government that "the appropriate underlying offense" was "aggravated assault," which has a base offense level of 15. Id. 112a. The district court increased the base by 4 levels because a "dangerous weapon," i.e., a side-handle baton, had been used by Officer Powell, and by 2 additional levels because the victim sustained "bodily injury," id. 115a, to wit: "contusions, [and] perhaps abrasions." Id. 105a. Thus, the offense level applicable to the underlying aggravated assault offense" was 21. The district court added that offense level to 6 to obtain a final base offense level of 27 under @ 2H1.4. Id. 115a, 118a. Based upon the Guidelines Sentencing Table, petitioner's base offense level of 27 and Criminal History Category I combined to prescribe a sentencing range of 70 to 87 months in prison. Id. 118a.

The district court also found, however, that "the present case is atypical in several respects," and that the "combined extraordinary circumstances of this case give rise to 'mitigating circumstances' that warrant a departure from the Guidelines range." Id. 130a. The court analyzed its departure decision in two categories.

First, the court made a 5-level departure pursuant to Guidelines @ 5K2.10, p.s., which expressly authorizes a downward departure "if the victim's wrongful conduct contributed significantly to provoking the offense behavior." The court catalogued in detail "Mr. King's wrongful conduct," Pet. App. 121a, 122a-123a, which included "illegal conduct prior to and during his arrest," id. 121a. Among other things, the court found that Mr. King drove while "admittedly intoxicated," exceeded the speed limit, fled police officers in his vehicle despite their "flashing police lights and sirens," "resisted and evaded arrest, persistently failed to comply with police commands . . . and attempted to escape." Id. 121a-122a. The use of force was "provoked substantially, if not entirely, by Mr. King." Id. 122a. Sergeant Koon was convicted for failing to prevent "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." Id. 123a. Even though "Mr. King's provocative behavior eventually subsided," id. 123a, the court determined that the entire incident "would not have escalated to [the] point [of unlawful activity], indeed it would not have occurred at all, but for Mr. King's initial misconduct." Id.
Such provocative victim misconduct, the court concluded, was sufficiently unusual to move this case outside the "heartland" of offenses governed by the applicable Guidelines, thereby justifying a downward departure pursuant to @ 5K2.10, p.s. Id. 124a. Based upon the factors set forth in that provision, its extensive and detailed factual findings, as well as "the overall standards and policies of the Guidelines, and its own discretion in attempting to fashion a fair sentence," id. 132a, the court determined that a 5-level departure was appropriate to distinguish Sergeant Koon's conduct from cases involving "deliberate and unprovoked assaultive conduct." Id. 124a.
Second, "based on a convergence of three additional factors," id. 134a, the district court made an additional 3-level downward departure. The court relied upon the following factors:
(1) "Additional Punishment." Sergeant Koon has "already sustained, and will continue to incur, punishment in addition to the sentence imposed." Id. 120a, 124a-126a. In that regard, "the extraordinary notoriety and national media coverage of this case, coupled with . . . [his] status as [a] police officer[], make [Sergeant] Koon . . . unusually susceptible to prison abuse." Id. 120a. Sergeant Koon also "will be subjected to multiple adversarial proceedings and stripped of . . . [his] position and tenure by the LAPD." Id.
(2) "Absence of Need to Protect the Public." "Adequate deterrence to criminal conduct" is an express statutory sentencing factor. Id. 128a. "There is no evidence, and the government does not argue, that . . . [Sergeant] Koon . . . [is] dangerous or likely to commit crimes in the future." Id. 120a, 128a-129a.
(3) "Successive State and Federal Prosecutions." Under the extraordinary circumstances of this case, "the successive state and federal prosecutions, though legal, raise a specter of unfairness." Id. 120a. Indeed, the court found that Sergeant Koon was indicted and tried a second time "only after a state court jury acquitted . . . [him] of charges based on the same underlying conduct," id., creating "an unusual circumstance, and significantly burden[ing] the defendants," id. 130a.
While none of these factors, "standing alone," justified a departure from the Guidelines, id. 120a, the court found that "taken together" (id. 121a) this "complex of three factors" justified a 3-level departure, id. 134a.
The total 8-level downward departure reduced the offense level for Sergeant Koon to 19, resulting in a Guidelines sentencing range of 30 to 37 months. As noted above, the court sentenced him to 30 months in prison and two years of supervised probation.
Sergeant Koon entered prison on October 12, 1993, after his applications for bail pending appeal were denied. See Koon v. United States, 114 S. Ct. 296 (1993) (mem.); United States v. Koon, 6 F.3d 561 (9th Cir. 1993).
B. The Decision Of The Court Below
On August 19, 1994, the court of appeals affirmed Sergeant Koon's conviction but reversed the district court's sentencing decision. The court reviewed de novo the district court's decision to exercise its discretion to depart downward from the sentence range prescribed by the Guidelines. See Pet. App. 57a ("We review de novo whether the district court had authority to depart.").
The court of appeals rejected the district court's 5-level departure for provocative victim misconduct, even though that factor is expressly authorized by the Guidelines as a ground for departure and despite recognition by the court that conduct by a victim provoking an incident could in some circumstances provide the predicate for a downward departure in a police misconduct case, depending on the particular facts. See id. 76a n.38. The court did not question the district court's findings of "King's misconduct" -- "speeding, driving while intoxicated, fleeing in his car from pursuing police officers, refusing to obey the officers' commands to get on the ground and remain prone, attempting to escape from police custody, charging Powell." Id. 70a. Nor did the court take issue with the district court's findings that, absent Mr. King's misconduct prior to and during the arrest, the 19-second incident that formed the basis of Sergeant Koon's conviction would never have happened.
The court of appeals nevertheless reversed the district court's finding that victim misconduct warranted a downward departure in this case. In doing so, the court did not cite any language in the Guidelines or sentencing statutes. It relied instead on general sentencing policies and this Court's excessive force analysis in Graham v. Connor, 490 U.S. 386 (1989). Based on that analysis, the court of appeals rejected the district court's findings that Mr. King's provocative and wrongful behavior, coupled with the volatile and "dynamic arrest situation," made this case sufficiently unusual to justify departing from the Guidelines. See Pet. App. 73a-76a.
The court of appeals also reversed the district court's 3-level departure. The court declared that the three factors considered by the district court were impermissible considerations "as part of the decision to depart." Id. 59a. Again, the court did not point to any textual basis for deciding that the respective factors relied on by the district court were prohibited from consideration in the context of a departure. Rather, it engaged in an extended analysis of its view of the "structure and purposes of the Guidelines and the
federal sentencing statutes." Id.; see id. 59a-69a. "In sum," the court concluded, "consideration of any of the factors identified by the district court to support the three-level departure, separately or collectively is, under the facts of this case, inconsistent with the structure and policies of the Guidelines. These factors are improper grounds on which to rest a departure." Id. 69a (emphasis added).
The court of appeals remanded the case to the district court for


C. The Denial Of The Petition For Rehearing And Suggestion For Rehearing En Banc And The Opinion Of The Dissenting Judges

The court of appeals denied Sergeant Koon's petition for rehearing and suggestion for rehearing en banc. Nine judges (Reinhardt, Pregerson, Wiggins, Kozinski, Noonan, Hawkins, O'Scannlain, T.G. Nelson, and Kleinfeld, JJ.) dissented from that order. Pet. App. 81a.
In an opinion written by Judge Reinhardt, the dissenters argued that "the panel seriously erred in vacating the downward departures ordered by Judge Davies." Id. 81a. They explained that the district court acted well within its discretion in sentencing the defendants to prison terms below the Guidelines range. Sergeant Koon and Officer Powell were first-time offenders. The sentences ordered by Judge Davies were severe indeed. Neither law nor justice requires that they be set aside or that any longer prison terms be imposed. Id.
The dissenting judges rejected the standard of appellate review applied by the panel in reversing the district court's departure from the Guidelines. They noted that the "panel's decision squarely conflicts with the considerably more flexible approach adopted by the First Circuit in" United States v. Rivera, 994 F.2d 942 (1st Cir. 1993). Pet. App. 89a-90a. The panel had taken a "mechanical and inflexible approach" that "casts aside the basic principles that should underlie judicial sentencing, even in the age of the Guidelines," and had thus impermissibly "encroached on district court discretion." Id. 81a. "Indeed, under the panel's view of the district judge's role in sentencing, district courts would be divested of much of the limited discretion they retain under the Guidelines." Id. 82a.
Accordingly, the dissenting judges concluded that, "in choosing to apply a highly limited view of judicial discretion to the case of Koon and Powell, the panel accomplishes little except to undo a perfectly proper sentence, and to treat the defendants in a harsh and unfair manner." Id. 89a.
The decision below strips virtually all discretion from sentencing judges and makes every sentence reviewable de novo if any deviation is made from the Sentencing Guidelines. Such a result is not authorized or required by the Sentencing Reform Act or the Sentencing Guidelines, is contrary to historic practice and will create an administrative nightmare for the federal appellate courts.
1. This Court has identified a number of factors for determining the proper standard of appellate review of particular types of trial court determinations. See, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990); Pierce v. Underwood, 487 U.S. 552 (1988). All of these factors strongly support application of the deferential, abuse-of-discretion standard to district court decisions exercising discretion to depart from the range of sentences imposed by the Sentencing Guidelines.
a. The language and structure of the Sentencing Reform Act demonstrate that abuse-of-discretion is the appropriate standard of review. The Act expressly required the Sentencing Commission to maintain "sufficient flexibility to permit individualized sentencing" where warranted by mitigating or aggravating factors not fully and expressly addressed by the Sentencing Guidelines themselves. See 28 U.S.C. @ 991(b)(1)(B). Congress intentionally "preserved for the judge the discretion to depart from" the Guidelines range pursuant to 18 U.S.C. @ 3553(b). Mistretta v. United States, 488 U.S. 361, 367 (1989). The Sentencing Commission, in turn, gave district courts the discretion to depart from the Guidelines range of sentences in "unusual" or "atypical" cases. Except for a few expressly articulated prohibitions set forth in the Guidelines, the Commission has declared, and this Court has recognized, that neither the Act nor the Guidelines limit the number of potential factors that may warrant departure in an unusual case. See, e.g., U.S.S.G. Ch. I, Pt. A, intro. comment. (4)(b); Burns v. United States, 501 U.S. 129, 136-37 (1991).
The Act authorizes only limited, narrow appellate review of district court sentencing decisions. Williams v. United States, 503 U.S. 193, 195, 199 (1992). It does not, on its face, authorize de novo review of any issue. On the contrary, it expressly requires deferential "clearly erroneous" review of district court factual findings, and instructs the courts of appeals to give "due regard" to the district court's opportunity "to judge the credibility of witnesses" and also to give "due deference to the district court's application of the guidelines to the facts." 18 U.S.C. @ 3742(e).
While the Act does not define precisely what level of deference is "due" a departure decision, the abuse-of-discretion standard is clearly the most appropriate standard. The text of the Act shows that Congress sought to preserve "individualized sentencing" in unusual cases and intended that courts of appeals defer to district court discretionary judgments. The decision to depart from the Guidelines is a quintessential exercise of sentencing discretion, and, accordingly, calls for an abuse-of-discretion standard of review on appeal.
b. Application of the abuse-of-discretion standard to departure decisions is likewise consistent with historical appellate practice in the federal judicial system. Federal district courts traditionally enjoyed broad discretion to impose criminal sentences within statutory limits. Throughout much of the nation's history, federal appellate courts deferred almost completely to district court sentencing determinations. And, as this Court recognized in Williams, 503 U.S. at 205, the Sentencing Reform Act was not intended, except where expressly provided, to "alter a court of appeals' traditional deference to a district court's exercise of its sentencing discretion." Nothing in the Act suggests that Congress intended to eliminate the traditional deference on appeal to a district court's exercise of discretion when departing from the Guidelines.
c. The abuse-of-discretion standard comports with, and will materially further, the "sound administration of justice" because district courts are in the best institutional position to determine whether the specific facts and circumstances at issue are so unusual that a departure from the Guidelines is appropriate to ensure a fair and just punishment. Congress recognized that affording district courts discretion to depart from the Guidelines would provide the Sentencing Commission with an important resource for revising the Guidelines to take into account factors that were not adequately considered by the Commission in its prior deliberations. De novo appellate review of departure decisions would be inconsistent with this carefully crafted framework, allowing the courts of appeals to make sentencing policy decisions that are, by statute, reserved for the Commission.
d. The complex and highly individualized nature of the issues involved in a departure decision also militates decisively in favor of the abuse-of-discretion standard. When a district court determines that a case, because of its peculiar facts and circumstances, is "unusual" or "atypical," the court is, by definition, engaging in precisely the sort of sui generis inquiry that is not likely to be replicated and is incapable of useful generalization.
2. The district judge acted well within his discretion to depart downward in this case.
a. The district court's decision to depart 5 levels on the basis of provocative victim misconduct was not an abuse of discretion. The district court's 5-level departure involved an application of the Guidelines to the peculiar and extraordinary facts of this case. The Guidelines expressly authorize and encourage consideration of departure from the Guidelines in cases of victim provocation, and nothing in the text of the relevant Guidelines or statutes restricts consideration of the circumstances of the victim's conduct in an excessive force case. The district court made detailed and thorough findings that Mr. King's repeated and persistent acts of unlawfulness and provocation prompted the offense conduct, providing an ample basis for the downward departure.
b. Nor did the district court abuse its discretion in making its 3-level departure. The district court properly relied on a combination of factors that are not withdrawn from district court consideration by the Guidelines. The court found, on the facts of this case, that the convergence of special factors made the case unusual. That determination was an entirely proper exercise of discretion entitled to full respect and deference on appeal.

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