United States v. Terry Lynn Winters

would held otherwise To have evidence.10 America, of UNITED STATES expectations legitimate thwarted have Plaintiff-Appellant, indeed, society and, of claimants — adjudications agency final large —that Even weight. carry considerable should of ratification judicial WINTERS, Defendant- importantly, more Lynn Terry to approach “bait-and-switch” SSA’s Appellee. pro- have claim Lively’s

resolving 98-60181. No. un- reasonably perceived a result duced fundamentally unfair. just Appeals, of Court claim- prospective few expect We Circuit. Fifth in Live- find themselves day one will ants 23, 1999. April hazard shoes, many but ly’s Albright. trod now path treacherous the Commis- fault hardly can

Though we faithfully adhere to attempting

sioner illustrates dispute precedent, our

to of legal rule extrapolating of pitfalls in the result applicability

broad case. fact-dependent

heavily

III. 94-2(4) is not Ruling

Acquiescence in our decision restatement

accurate then, the SSA follows, It

Lively. Ruling to apply the justification

without judgment claims.

Albright’s affirmed. therefore

district court

AFFIRMED we know exception, and of no such admits ex- have we could freely admit We possess the does holding Commissioner our none. discretion, clearly the basis for plained more circumstances, today, we did certain recognize Lively. We decisions, including v.Bowen, final reopen otherwise Lively premise explicitly II), presentation did upon that we (Lively “good cause” benefits denial of SSA's 20 C.F.R. reversal our evidence. material new and (as- at 180 rule. Id. evidence the substantial A discus- 404.989(a)(1),416.1489(a)(1). §§ that, Lively, we ”[a]s in serting in dictum re- power Commissioner's sion ALJ second if the determine again decline no made sense would have open,however, evi- by substantial supported finding is merely a review direct Lively, which dence”). a new claim. conceded SSA had what nothing more Lively been Had of record Lively to the lack Our reference doctrines application of the straightforward can ALJ’s decision second support for the preclusion embodied claim issue § evi- weighing of the as a only be construed however,we 405(h), need not posi- respective parties’ relative dence doctrines those "exception” to cussed an re- of substantial-evidence hallmark tions—a evi- unconsidered previously the event view. 405(h) §of light. The text come dence during (use 924(c) a firearm § 1503 crime), ato

relation (obstruction justice). at sentenc- Sentencing Guidelines States This appealed. government The ing. its abused that the held Winters, vacated sentencing discretion re-sen- for sentence, remanded and again district court The tencing. this time guidelines, from for reasons listing different sen- appeals again government The herein, we stated reasons For tence. for resen- remand and vacate tencing. Background and

Factual History Procedural Ter- the sentence appeal revisits (Winters), which Lynn Winters ry in United reviewed court first Cir.1997). Winters, at officer a correctional was Winters at Parch- Penitentiary Mississippi State (Parehman). the time At man, Mississippi worked arrest, Winters of his years. for fifteen Parehman Floyd Larry inmate In November vehicle. in a stolen Parehman escaped from and sustained the vehicle Floyd wrecked around vehi- left blood which injuries cap- was Floyd day following cle. The Peraertz, J. Dennis Emmanuel Louis Several house. an abandoned tured Justice, Appellate Dept, Dimsey, U.S. hand- he was Floyd after beat officers Div., Washington, Section, Rights Civil on of resistance absence despite the cuffed Plaintiff-Appellant. DC, for Floyd placed then The officers part. MS, Grenada, Vance, Preston James During prison. return truck Defendant-Appellee. and Floyd over squatted trip, Winters forcefully times several him hit knocking revolver his service with head artery A small unconscious. him head severed head was Floyd’s The bleeding. profuse resulting blows and GARWOOD, BARKSDALE Before testified physician staff Parehman STEWART, Judges. Circuit with consistent was head Floyd’s wound might result type of wound STEWART, Judge: “the Circuit gun barrel.” blowa 18of of violations was convicted Winters investigated jury grand A federal of his individual (depriving § 242 subpoenaed jury grand The incident. law), 18 U.S.C. color rights civil Robert McKnight testify. McKnight officer; (3) correctional and an institution- also Parchman officer who had also al prisoner norm that a who escaped would participated in capture beating of be upon recapture. beaten A panel of this Floyd. Winters was McKnight’s superior disagreed with government’s in- officer. night before McKnight was terpretation of the sentencing colloquy. It testify, Winters and another officer vis- found that the district court justified its McKnight pressured ited him to testi- departure on ground the sole that Winters’ fy falsely. act single was a act of behavior, aberrant which was grand jury inconsistent prior indicted with his Winters ser- high four others vice and Winters, for various virtues. federal offenses. deprivation convicted of a (18 person’s civil rights under color of law panel The found that the district court’s 242), § U.S.C. of a use firearm during and interpretation of Winters’ actions was un- (18 in relation to a 924(c)), § crime U.S.C. supported by the record. See id. at 207 (18 justice obstruction U.S.C. (“A single act of aberrant behavior can be 1503). § appropriate an for basis a downward de- Under the United States Sentencing parture ... -. However, such a single act is (USSG Guidelines, guidelines), or a viola- implicated by conduct.”). Winter’s 924(c) (use tion § of 18 U.S.C. aof firearm Therefore this court vacated Winters’ sen- crime) during a carries a mandatory mini- tence and remanded for re-sentencing. mum sixty sentence of imprison- months’ In February the district court ment. Winters faced an additional 108— again notified the government it 135 months’ imprisonment for the convic- depart from guidelines. tions under § 18 U.S.C. 242 (deprivation time, the district court grounds listed its (ob- of civil rights) and § 18 U.S.C. (1) a as “Correctional High Officer’s Sus- justice). struction of guidelines The also ceptibility (2) Abuse Prison” and required a $20,000— ranging fine from “Mandatory and Consecutive 5-year Term $200,000, two three supervised Imprisonment on Count 5 gun [the release, and a special $150 assessment. charge] results Excessive Term of The court departed downward from the Imprisonment.” The government timely guidelines. The court sentenced Winters objected to departure. Based on the to the mandatory sixty months for the aforementioned grounds departure, charge. firearms sixty The months would district court sentenced Winters to the served consecutively with an additional same sentence before. government The twelve months for each of the other two again appeals Winters’ sentence. (to convictions be served concurrently). Thereafter Winters was sentenced three Discussion years supervised release, a fine and $2000 special a $150 assessment. government The raises three issues First, government appeal. appealed government Winters’ sen- con- tence. As a matter, tends preliminary district court this court abused its had to determine on discretion grounds departing what downward on the district court departure. based the basis that Winters faces a mandatory government argued that month term gun Next, for the charge. court based its decision on grounds, government three explains that the district court asked this court to declare each reason an abused its discretion when it offered Win- improper departure. basis Those ters’s status as a correctional officer as (1) grounds were: act was a Winters’ basis for a departure. Finally, “single (2) act behavior;” of aberrant government Win- urges this reas- ters’ distinguished record of service as a sign this case to judge. a different ch.l, Guidelines, typical land of cases. See

A. of Discretion Abuse A. also at 2044. pt. See 116 S.Ct. a district This court reviews depart guide A court from should sentencing par it in a lines unless finds conduct discretion. See guidelines for abuse of “significantly from the ticular case differs States, at 2035. 116 S.Ct. Koon United norm,” the case outside this and takes “[Wjhether permissible factor is a basis way, Id. a sen heartland. Put another is a under circumstances ‘un may depart “if finds tencing appeals and the court question law usual render circumstances’ reso to the district court’s need not defer specific factor guideline level attached to Koon, 116 point.” of that See S.Ct. lution See United States v. Cald insufficient.” However, in this review is still well, Cir.1993), citing stan cluded the abuse discretion 3533(b). 5K2.0,18 § USSG (“A defini dard. See id. it makes an tion abuses its discretion when Additionally, guidelines either for- law.”). error bid, discourage, encourage several fac- id; tors as bases for See A court’s determination factors, USSG 5H1. Forbidden such guidelines whether race, sex, may origin, and national never deference, to “for it entitled substantial by sentencing be considered a court. See the traditional of discre embodies exercise factors, Discouraged § in- USSG 5H1.10. Winters, aby sentencing tion court.” See family and employment records cluding primarily at due 105 F.3d 204. ties, “not ordinarily are considered rele- competence the courts in particular trial may only vant” “in ex- and considered determining a case is whether 5H1.5, ch.5, § ceptional cases.” See USSG unusual, compared to ordinary or the H; Koon, pt. 116 S.Ct. 2045. id., majority vast of other cases.1 See Koon, discussing at 2047. S.Ct. Alternatively, sentencing a court However, a district court cannot if finds may depart guidelines from the “it guidelines from the unless first aggravating mitigating or circumstance finds, record, the circum on or into adequately that was not taken consid of a from stances case remove the by Sentencing eration Commission typical the encom “heartland” cases guidelines.” formulating sentencing the Winters, passed guideline. within the a See id. To whether circum determine 205; Harring 105 F.3d United States adequately stance was (court (5th Cir.1996) ton, 82 F.3d 83 must Commission, only the courts “consider acceptable departure articulate reasons statements, guidelines, policy sentencing departure on the record and must be rea commentary Sentencing and official sonable). Commission.” States v. 2035, explains that 135 L.Ed.2d The Guidelines Manual it U.S. 116 S.Ct. 3553(b). (1996), § guideline quoting each to create a heart- intends U.S.C. part failing simply company 1. The dissent chides the We with dissent's judge’s sentencing that a deci- give notion substantial deference virtually impervious appellate from sions are judge presided who over the trial and has been review. Substantial deference has never synonymous judicial experience, "extensive and es- service approval with carte blanche pecially regarding penitentia- matters legal sentencing judgment in the face of error. ry.” emphasis The dissent’s trial Indeed, reviewing tire basis for a down- when experience judge's proverbial amounts departure, as a ward our function herring. legal experience vast red The appeals superfluous if would be rendered beyond dispute acumen of the district operated as talis- "substantial deference” nothing majority's opinion suggests designed scrutiny ward off of this man otherwise. court. Mandatory Charge Gun where a mitigating aggravating 60 Month factor is not adequately taken into Departure Basis for consideration As guidelines themselves. See id. district court determined that 924(c) however, §a charge, case of “the mandatory sixty month sen light of guidelines do the interplay of consider. charge, for the follow required gun tence 924(c) § and themselves.” See id. As we charges on the other ing guidelines previously explained, guidelines specif- too harsh a sentence. impose ically sentencing control the of defendants Therefore, 924(c) § convicted under and the underly- guidelines the sen ing offense. See id. See also USSG the civil rights tences for obstruction § 2K2.4 (limiting offense-specif- additional justice charges. ic possession enhancement for use or of a permissible No basis for was weapon where a defendant has also been provided by gun charge. In United 924(c)). Furthermore, sentenced under Caldwell, States v. this court considered the guidelines anticipate underly- that the whether the fact that a defendant faced ing already offense level will be reduced mandatory minimum sentence for use separate gun when there is a charge be- crime, pursuant of a during firearm underlying cause the offense-level will not 924(c), justify could any applicable weapons include enhance- un- guidelines for the ment.2 Accordingly, defendant derlying crime. See United States v. Cald- Caldwell not been to an sentenced (5th Cir.1993). well, 764-65 weapon additional enhancement for his un- It cannot. derlying drug offense. The defendant Caldwell had been Sentencing thoroughly Commission room, in a caught exchanging drugs hotel interplay mandatory officers a where law enforcement found minimum sentence for use of a firearm Caldwell, gun. at 764. See 985 F.2d Cald guidelines with the sentence for under- pleaded guilty drug well to a offense and lying guidelines prohibit crimes. The a to the use a firearm in the commission departing guidelines court from from the (pursuant of that crime to 18 U.S.C. a the Sentencing based on factor that 924(c)). § See id. The court not in formulating the Commission considered gun charge ed that carried a mandato Caldwell, guidelines. See 985 F.2d at 765. ry sixty minimum sentence of im months’ Therefore, this court held a as matter prisonment. See id. The district court a minimum mandatory law that sentence that, gun played 924(c) determined because justify a cannot crime, only following a minimal role in the for departure underlying offense.’ See guidelines drug on the offense would id. unduly result in an sentence. harsh See Caldwell, therefore, fact Under the mere id. Since the court was not able to sixty-month that faced a minimum Winters gun charge, on the the court gun charge by on the cannot guidelines downward from justify guide- departure itself a the underlying drug offense. See id. Thus, lines. the district court’s This See id. at if only court reversed. 765. was allowable unusual circum- guidelines permit departure only The heart- stances remove this case id., Application quired 2. 4. See Note because the offense level the un- for derlying may offense be reduced when there "Where is also a conviction for offense, there is also a conviction under 18 underlying a consolidated fine 844(h), 924(c), 929(a) § any § § or in that guideline by is determined the offense level specific posses- offense characteristic for applied underlying that use, sion, discharge is not or of a firearm offense absent a conviction 18 U.S.C. 924(c), 929(a). 844(h), § § § applied....” or re- public of civic or service are contemplated by guide- records land of cases guidelines, under the couraged factors lines. for grounds can therefore be district court determined exceptional cases. See USSG only guide this is an unusual case which 5H1.5, 11. The fact First, court not inadequate. lines are system fifteen prison for the worked lawfully possessed his ed that Winters surely itself take does Win- recognized The court weapon. See id. nor- ters out of the “heartland” officers possession gun that Winters’ lawful violating an inmate’s mally convicted of departure, grounds for was not sufficient rights. See also United States civil totality that it added to the but stated Rybicki, F.3d calling circumstances (Vietnam years military with 20 Veteran Second, recognized the court Id. ill mentally responsibilities service and law fact that Winters enforce “excep- present did not wife and sick son officer, ment and noted his service record. case). tional” inject If has “Let this. ever there me Furthermore, a cor- Winters’ status as guidelines under the been an unusual case to an aggravating rectional officer is closer 15-year this veteran of law en mitigating See factor rather than one. Department of forcement with the Correc Winters, 207. Winters’ status who, shows, tions the evidence necessarily officer meant corrections unblemished record who exhibited took the criminal conduct—which type of See id. at 29. behavior.” place capacity in his a corrections offi- A district court’s determination public posi- an abuse of cer—constituted a usual unusual case is entitled what is guidelines specifically tion. state substantial deference. See public trust involving crimes the abuse of 81, 116 L.Ed.2d 392. U.S. S.Ct. miti- aggravating—not be considered However, no offered id., gating—-factors. citing USSG differentiate case from which Winters, at 207 3B1.3. See also other ease which law enforcement (“[T]he Commission considered criminal or obstructs officer uses excessive force government agents committed acts justice. response pre- to require firmer order them.”). Instead, the district court found this vent extraordinary primarily because of guidelines depar- also discourage personal Winters’ characteristics. Person family responsibili- tures based on ties upon by the al traits such as those relied Accordingly, See 5H1.6. ties. USSG proper court not are bases only depart guide- courts should departures guidelines. from the See Win exceptional in rare or lines on these bases ters, 105 F.3d at 206. also United See See There is no evidence cases. id. O’Brien, 18 303 family any will suffer more than Winters’ (holding that based family when one is suffers member character good assessment defendant’s prison. Harrington, to sentenced See guidelines); Harring is inconsistent with 89; Kapitzke, F.3d at United States ton, (recognizing F.3d at 88 that a (8th Cir.1997) (“[T]he disintegra- F.3d 820 personal defendant’s characteristics are family relationships life or existing tion of usually acceptable grounds depar not expected family ... is to be when mem- ture). re- engages activity ber criminal incarceration.”), citing example, period For in a status as a cor- sults Winters’ 893, 907 year Canoy, and his ser- United States v. rectional officer fifteen (7th Cir.1994). Thus, family ties history provide proper grounds vice do Winters’ not Employment present departure. a valid basis for departure. status and do not high susceptibility The district held that all these to court abuse other pris- taken into oners. factors should be consideration together, them outside heart- take Koon, Supreme United States Indeed, land of the guidelines. the district Court held that the properly district court felt that seems to have the severe defendants’ sus- punishment guidelines required ceptibility prison to abuse in as a basis for R.E. this case didn’t fit the crime. See departure. However, a downward id. See (“The p.257 Tab 6 facts in this case do Koon an extreme case and no facts

warrant a within applicable present similar to it remotely are here. guideline’s range for counts and 9 PLUS sentencing Koon involved the of the Los an 5-year mandatory additional con- Angeles Department Police officers con- imprisonment secutive term count beating Rodney King. victed of The dis- 5.”). Sentencing recog- Commission trict found that the “extraordinary occur, might nized that a case where such notoriety and coverage national media several com- otherwise-insufficient factors case, coupled with the defendants’ sta- justify bined to Com- officers, police tus as Koon and make Pow- mentary accompanying 5K2.0. Howev- unusually ell susceptible pris- abuse in er, stated such cases Commission on.” See 2053. S.Ct. at “extremely would be rare.” attempt Any compare this case to the Rodney King unavailing. incident A few extremely This is not an case. such rare a local newspaper stories in or state-wide Moreover, has not articu compare cannot outrage national lated “relevant facts and valid reasons” emanating beating from the of Rodney demonstrating why this case is extraordi King, subsequent to mention riots. nary or comparison even unusual The notorious circumstances involved in other the guideline. cases under See Win identity Koon and the in- the officers ters, again 105 F.3d at Once “the volved such received sustained national reasoning district court’s fails to cite the coverage permeate prison media as to fa- compelling necessary satisfy nationally. cilities There no record evi- very high type depar standard for this dence to that the show instant event was ture from the Guidelines.” See id. There reported beyond the local area its occur- fore, the district abused its discretion argues rence. case is departing guidelines. unique he because was corrections officer However, beating accused of inmate. 2. Status Ba- as Correctional Officer as is not his situation outside the heartland of Departure sis for a law cases which enforcement officer is using accused excessive force violat- The district court’s second for basis person’s a civil ing rights under color of departure fact that was the Winter’s status law. as a highly corrections officer makes him susceptible in prison. not a general abuse Winters Koon does create rule that had in Mississippi been officer a a prisons police defendant’s status as officer can justify departure. for over fifteen when incident the a downward (4th time, Rybicki, occurred. that During the district States v. 96 F.3d Cir. 1996) reasoned, court many prison he met Fourth the Circuit prisoners ers. Some of these now a defendant’s as a law en whether status itself, likely prison. can, prison federal officer justify Those forcement a departure ers would know that a “dispropor Winters had been downward based on corrections officer. The district de problems” court tionate suffered incarcerated termined that a justified police Rybicki, this circumstance officers. See 96 F.3d at departure apparent based Winters’s court that allowing That determined noted As officers. law enforcement “law be that suggests rule general a

such greater applied earlier, the Commission class, are enti- officers, as a enforcement crimes. for such sentences not lesser the treatment favorable to more tled its dis- abused court the district Therefore The id. See Sentencing Guidelines.” from cretion when either Con- indication no found court because Winters simply guidelines in- the Sentencing Commission gress or officer. a law enforcement officers enforcement treat law tended other defendants. than favorably more rea- rejected the Having Therefore, held Circuit the Fourth id. See ex- departure as a downward sons a law mere status a defendant’s intent in its notice pressed justify a down- cannot officer enforcement downward, our attention we turn id. See departure. ward methodology. of our rejection dissent’s emphasizes First, the dissent offered Rybicki, the Like based determination made its any trict is why Winters compelling reasons no In- circumstances. totality of the in prison to abuse susceptible more “totali- phrase deed, dissent recites officer sentenced corrections any other mantra some circumstances” ty of Long, States Compare United prison. sup- will enough frequently Cir.1992) (allow if stated which 1264, 1278 basis written court’s plant frail even defendant’s where ing apparent Despite the departure. a to for “exceedingly vulnerable him health left dissent, “totality of the wishes severe and resultant possible victimization paradigm simply a is not circumstances” with United injuries.”) possibly fatal court’s basis renders which Russell, F.3d re- insulated from not a downward (defendant’s did deafness up which make of the elements view Long). attack as vulnerable leave him totality. that Win Instead, the court determined justified as an officer status

ters’ mere the sum nothing more than A “total” departure. Here, parts those parts. component of its alia,- subjection to include, inter Winters’s basis departure on the a To allow years and of five minimum mandatory a officer enforcement law prison. abuse susceptibility to intent of purpose and would thwart articulat- the two reasons are Again, these v. Ka United States guidelines. of inten- notice in the district depar ed (allowing pitzke, 130 departure. a downward to consider were tion pornographers child ture because offers basis Individually, neither wbuld prison susceptible to abuse It is axiomatic for such sentences guidelines’ thwart for de- do offer basis they combined crimes). Sentencing Commission any de- find that Similarly, we parture. that some possibility surely considered does bases articulated per rivative violating a convicted defendants departure.3 a basis for offer law would under color rights sons civil the Federal hypothesizes that highlights rea- dissent example, the dissent 3. For produced suscepti- could of Prisons Bureau court found Winters sons Court yet Supreme reject because all We the same letter in Koon similar ble to abuse. offi- be correctional should susceptibility Winters’ status to abuse relate to found that nothing the record indicates Nothing cer and in Koon indicates considered. who among inmates unique therefore, other letter; is Winters is it any of such existence police or formerly officers Yet, were correctional letter existed. no equally plausible that attempt to minimize dissent's officers. conjecture re- engage in such we need of Prisons Bureau of the Federal the effect there is because Koon garding the facts in capable of fully confirming it letter surrounding the little doubt futility of its ar- exposes housing Winters rights re- King’s Rodney civil of violation gument.

487 The dissent’s reliance on our recent de- invoked. See id. Such reassignments cision in United States v. Threadgill, 172 “should be made and infrequently with the (5th Cir.1999) F.3d 357 is mistaken. In greatest reluctance.” In re Corrugated Threadgill, the district court articulated Container Antitrust Litigation: Adams two factors which removed this from case Extract Co. v. Pay Green Packaging, 752 There, the heartland. (5th case F.2d 137 (quoting Koller v. bar, accorded substantial def- Richardson-Merrell, 1038, 737 F.2d 1067 erence to the factual determinations (D.C.Cir.1984) of the J., (Richey, concurring)). court; nevertheless, the majority This Circuit has not of decided which offered an of the assessment substantive two tests should be used decide whether departure. bases for the Based on its to reassign Johnson, a case. See 120 F.3d analysis, the majority found that Thread- at 1333. Several reassign circuits will gill certainly “was case where the case avoid appearance bias or the district court disregarded applicable bias. See id. The Ninth and Tenth Cir- range Guidelines in favor of another cuits, however, adopted have a more for- Id., preferred.” Here, 172 F.3d at 378. test, mal requires which the court to con- applicable guideline range required a sider three factors: sentence of 108-135 of imprison- months (1) ment for original § violation of 18 whether the U.S.C. 242 and would 1503, reasonably to which mandatory expected upon consecutive remand to 60 months have imprisonment for substantial difficulty the firearms in putting out 924(c) violations his or her under 18 mind previously-expressed U.S.C. would Winters, views findings been added. determined F.3d to be erro at 206. While we neous or based on do not concern ourselves evidence that must be (2) rejected, with the extent departure, whether reassignment the rec- ord preserve indicates advisable to appearance court has (3) justice, failed plausible articulate a whether reassignment basis for In so entail waste doing, duplication out of impermissibly proportion any gain sentenced Winters preserving to its “preferred” appearance Johnson, sentence of months fairness. for a F.3d second time. citing Davis & Cox v. Corp., Summa 751 F.2d Cir.1985) (quoting United States Rob B. Reassignment to a Judge Different in, (2d 8, 10 Cir.1977)). Finally, government urges White, See also United States v. this court to reassign this case to a differ 695-96 (suggesting three-prong ent district judge on A remand. federal test should be used where there is no appeals court of has supervisory au bias). direct evidence thority to a case reassign to a different trial judge on remand. See Johnson does not call reassignment Sawyer, Cir.1997); 120 F.3d 1307 28 under either test. No showing has been However, this is an ex made that we presented are with a case of traordinary power and should rarely be antagonism bias or party toward one in the greater ceived exposure far than Winters's paucity publicity relative in this case fact, Lariy Floyd's. violation of despite the precludes finding us comparative mea- emphasis publicity dissent’s on the surround- complexity. sure spent case, ing nothing in the record bears working penitentiary Mississippi upon the nature pub- and extent of such imprisoned By emphasiz- in Minnesota. licity. ing officer, Winter's status aas corrections Furthermore, publicity while the in Koon impermissibly the dissent lowers the bar for introduced a complexity safely measure of officers. corrections

housing the facility, defendants in federal 488 Sentencing departure downward Johnson, 1307 120 Contra, F.3d case. required are Accordingly, we made Guidelines. lower court where case (reassigning deci- to such deference substantial give admit- to and remarks antagonistic

repeated to has failed majority Because the IRS). the sions. Although hostility towards ted the addition, misread so, and, in has do depart down- to twice chose court the resentencing for at sentence, given made no it reasons from Winters’ ward respectfully I departure, impartial- refuse it would indication matters the sent. and decide evidence weigh ly objectively. it

before bear parameters three stage, To the set court has this Moreover, fact that making first, judge, noting: does the district court already reversed noted, is, enti- as departure, a downward reassignment. require necessarily not second, deference”; to “substantial tled O’Brien, faced this court v. States United on departure judge based See situation. similar procedurally created circumstances totality There, the dis- O’Brien, at 302. susceptibili- count by the firearms which imposed a sentence trict court had factors, then rather prison ty to abuse Upon See id. vacated. later Court as the separately, them treating imposed again remand, district court third, de- only the erroneously; does id. On See sentence. improper extent, is issue. its parture, urged parties appeal, one second See id. case. reassign the very decision court recent regard, In this do so. refused to light of Court in the nicely, 303-304. our court summarizes confident, will, are States, we 116 U.S. “The 518 United Koon v. for us to unseemly duty. It (1996), perform L.Ed.2d S.Ct. take a he depar- that will assume reviewing either for framework so he do what should suggest toor course tures: in accordance a decision as he reaches long deci a district analysis of [0]ur ' id., controlling statutes.”

with separate three consists of sion Denson, v. States quoting United appellate An determinations. Cir.1979). (5th See also United 1143, 1149 (1) factors relied must ask: whether F.2d 936 Schoenhoff, States departure the district court an action (“We to transfer refuse Guide factors permissible are prior two solely because re-sentencing factors, (2) lines; whether trial court by the imposed sentences record, in the by evidence supported reversed.”). govern- decline We been from the heartland the case remove this case. reassign invitation ment's (3) wheth applicable guideline; is reasonable. degree of er the Conclusion herein, we VA- Threadgill, 172 F.3d stated the reasons For here, Cir.1999). purposes and REMAND For our CATE Winter’s re-sentencing. already has decided Supreme Court to the district susceptibility based that departures BARKSDALE, HAWKINS RHESA as dis- permissible, are prison abuse dissenting: Judge, Circuit noted, and, the Govern- infra; cussed extent of challenge the ment does discre- with is entrusted A district court Therefore, only the at issue present ex- which .cases determine tion to question.1 “heartland” warranting circumstances traordinary applicable Guidelines disregarded an Threadgill majority misconstrues 1. The Maj. preferred”. of another range in favor Threadgill's statement relying on part, by F.3d at Threadgill, 172 (quoting Opn. at where the certainly anot it "was Concerning question, Supreme (internal that 98, at Id. 116 S.Ct. 2035 citations Koon, omitted) Court decided after the first quotations added). sen- and (emphasis case, addressed, tencing in among oth- This passage from Koon reveals two er things, er decision to court’s rors in the majority’s First, reasoning. based on the enormous states that there are two publicity outrage surrounding and permitted bases for a depar case. The Court recognized superior if ture: the conduct is outside heart position of district courts in determining cases; land of typical and “[ajltematively, whether, for sentencing purposes, a case ... if ‘[the sentencing an ag court] finds “typical”: gravating or mitigating circumstance departure permitted, Before a is certain not adequately taken into consider aspects of the case must un- be found by ation the Sentencing Commission in usual for it fall enough outside the formulating ”, the sentencing guidelines’ heartland of cases in the Guideline. To Koon, quoting 81, at U.S. 116 S.Ct. resolve this question, the district court added). (emphasis Maj. Opn. at 482- must make a assessment the 483. As I read refined Guidelines of outcome, many bearing on the in- these are not permitted alternative down by vantage point day-to- its departure Rather, formed ward depar bases. day experience in sentencing. criminal permitted is ture if the factors in the case a given present Whether factor is to a “heartland”; take it outside the that re degree not adequately by when sults the circumstances un are so Commission, or whether a discouraged they usual that were taken into consid justifies factor nonetheless departure by eration the Sentencing Commission. present because it some unusual or 94, (Guidelines id. at 116 S.Ct. 2035 exceptional way, are matters determined “apply to a typical heartland of cases. in large part by comparison with the Atypical cases not ‘adequately were taken facts of other Guidelines cases. District consideration,’ into and factors that amake courts advantage institutional atypical provide potential bases for over appellate making courts in these departure”); see also United States v. Riv determinations, sorts especially as era, (1st Cir.1993) (a of they see many more Guidelines cases case that is outside the heartland of a appellate courts do. “is, definition, guideline an ‘unusual example, 93.9% Guidelines cases were ”). case’ important clarification is of be appealed. To ignore the district cause, in the analysis, final court’s special competence reason departure for the downward —about “ordinariness” “unusualness” issue from it resulted the sen finding depriving case—would risk tencing considerations outside heart the Sentencing Commission an im- land. It came to this conclusion because portant information, namely, source unique, total circumstances the reactions the trial case had not been taken into consideration fact-specific circumstances the case. the Commission. 378). Then, although recognizing Threadgill, was reasonable.

extent of the here, is not at Again, issue F.3d at n. 16. are we con- majority concludes "the district only cerned inquiry with the second —the And, impermissibly 'pre- sentenced question. to its regard heartland it is in this ferred' Maj. of 12 Threadgill Opn. months”. the majority's treatment True, quoted troubling, by Thread- failing statement most address Threadgill gill part 's inqui- concerned the second ap- discussion of the standards to be ry on review: (wheth- whether plied making case is outside the inquiries the first two But, heartland. it also permissible concerned the third er the factors were whether inquiry the extent of the heartland). review: whether the facts take the case out

490 and proposition, authority for no from cites

Second, above-quoted passage the unique and judge’s vast the district ignores deference the substantial Koon notes applying the Guidelines experience in depar- accord such courts must appellate this instance. quite court stated our decisions.2 As ture recently: compounds Furthermore, majority the district that when a thus teaches

Koon reasoning judge’s the by parsing the error the depart based court decides each of his addressing erroneously and case, acting it is facts of a particular contrast, In the separately. rationales Accord- competence. special its resentencing within judge’s statements trict province the near-exclusive ingly, it is the cir- all that he demonstrate to decide whether the district totality, in their together, cumstances re- factors, or set factor, particular the the was outside concluding heart- applicable the a case moves the addresses majority heartland. from accord those decisions must land. We in its gave the district two reasons (the greatest the Depart” mandato- of Intent to “Notice deference. suscep- the Koon firearm sentence and ry add- (emphasis 172 F.3d at 376 Threadgill, factor) if our court must tibility to abuse omitted). ed) (internal citations support alone would either decide whether This treat- judge’s decision. infra, the thoroughly As discussed more reasoning judge’s misconstrues that to ment great lengths judge went district deference the substantial and undermines is so thought this case why he explain circumstances. him in such owed insight gained In addition unusual. trial, presided over having from mandato- First, rejects the majority grounded were judge’s reasons district consecutive sentence ry five-year experi- service and judicial his extensive 924(c) § firearms conviction the 18 U.S.C. ence, involving matters especially with stating “[n]o departure, as a for basis litiga- in that he has handled penitentiary, pro- departure was basis for permissible years. than 15 concerning it for more tion Maj. Opn. at charge”. gun vided this; agreed with judge The district 483. But, judge’s district spite of the was not the basis sentence the firearms this case outside position find unique Instead, judge departure.3 heartland, his majority dismisses interplay of the correctly considered “situation stating that Winters’ reasoning, firearms sentence mandatory five-year of cases heartland is not outside the in consider- the other circumstances is accused with officer which a law enforcement circumstances totality of the violating per- ing or using excessive force clear He made Maj. warranted rights under color law”. civil son’s solely because departing was not that he doing, In so Opn. at 485. ("it the near- Threadgill, at 376 herring 172 F.3d worrying that a red addition to In de- court to province of exclusive (the expertise) been judge’s has factor, set whether cide issue, majority dragged over heartland factors, applicable a case removes my construction substantial fears added)). (emphasis Rather heartland” render discretion standard standard, majority substitutes apply this "virtually impervious departure decisions of the district court. for that judgment its review”, that this appellate and cautions "designed off the to ward standard is resentencing, did 3. At Opn. 488 n.l. Maj. scrutiny of this court”. See, 924(c) applied to Winters. dispute that discretion standard Obviously, Contreras, the substantial e.g., States v. Cir.1991), denied, On the that effect. not intended to have U.S. rt. ce (unlike hand, (1992) recognize, simply I L.Ed.2d other S.Ct. to, (§ 924(c) com police officers who applies stan- the narrow majority) am faithful firearm). using their mit crimes that has been mandated. dard of review mandatory firearms and that gun [he] had a within the useful import he understood the of United area, I guess you could say. I’m not Caldwell, Cir.1993). 985 F.2d 763 persuaded that Caldwell can be analo- gized to against the case Mr. Winters. Caldwell, the defendant was convict And I say it this reason. Mr. Win- 924(c) ed under drug underlying ters legitimately weapon had this on offenses. The district court him. He out on a recap- mission to downward gun because the did not have an escaped ture an prisoner. He didn’t “integral role” the offense and because shoot the victim with the gun. But he participation of the minimal defendant’s did, shows, the evidence strike him over Caldwell, the crime. F.2d at gun. head this I simply with meant reversed, Our concluding point my out in present case not did “unusual circum reasons, reason No. [in notice—-the departure. stances” justifying Id. at count], weapons that here we don’t have 766. That conclusion was based on finding someone illegally who was in possession, that the Sentencing Commission had taken carrying using or into firearm. The interplay illegal account between it, 924(c) use though[J § was the underlying striking and the drug offense. the head. And while Id. that alone perhaps ground not sufficient 924(c) interplay § between and the departure, I conjunction mention it in underlying civil rights offense this case my ground with [in notice— first has also been taken into consideration susceptibility prison] to abuse in be- the Commission. Winters’ offense base cause the totality overall the circum- level for underlying rights civil offense stances in this call a downward for' was not enhanced for the use of the fire- arm, because that use was taken into ac- added.) 924(c) (Emphasis § count sentence. 2H1.4(a)(1994 ed.) (court § U.S.S.G. ap- judge was within his discre- ply greater of offense plus level 10 6or tion in concluding that Sentencing of underlying offense level offense for Commission anticipated had not such un- convictions); § 242 U.S.S.G. this, usual facts. Addressing the district 2A2.2(b)(2)(B) § (guideline for aggravated judge stated: assault —the underlying offense in this Now, as a correctional officer searching provides case—that level increase for for an escaped prisoner, ... Winters firearm); (un- use of a U.S.S.G. 2K2.4 possessed legitimately a firearm during derlying offense should not be enhanced that search. And following capture

for use of a firearm when defendant is also inmate, of the Mr. escaped Winters used 924(c)). convicted this for an illegal purpose, firearm judge The district understood this. This strike the victim the head. The de- interplay is reflected in the Presentence fendant not did use the firearm within Report; there was no firearms enhance- its designed purpose, but weap- used the ment to the base offense level for the civil on as a club to strike the victim. It is But, rights conviction. judge likely this defendant did not give any recognized that other came considerations thought to he used to hit the what victim that, view, into play took this case with, and used firearm to strike outside the heartland: happened victim it to be because in his

The facts [concerning Winters and those hand at illegal the time he chose to use in Caldwell are very ] distinguishable. against force the victim. It likely is also [did Caldwell not a law involve] enforce- that Mr. would have used.an- ment officer. item, walkie-talkie, Caldwell [concerned] other such as a drug in a dealer arrested room guards motel which one against did use which, with years, to 5.63 4.5 between something of that victim, a baton years, five mandatory fire- item, of a consecutive instead nature!,] if 10-years approximate in an when he have resulted hand in his

arm, been that the short, appeared it sentence. the victim. to strike chose ap- to serve wanted Winters Government read Caldwell Moreover, I do supports the years. This proximately ever con- courts preventing that, recognition unspoken Government’s mandatory firearms sentence sidering in this circumstances light of the in the decision the factors as one of ap- case, greater imprisonment of Although depart downward. heart- is outside the proximately basis, solely on the extent (Again, land. that this made clear issue.) is not many. of consideration one merely was concerned majority is Perhaps the that, af- not hold does Finally, Caldwell the court consider allowing the district depart has decided court a district ter factor a mandatory sentence as five-year reason, it legitimate a- based on downward 924(c). § purpose of undermine the would sentence in firearms the consider cannot con However, courts other departure. the of deciding the extent five-year manda impact the the sidered rights and the civil for range Guidelines’ in departures allowing in tory sentence was 108- convictions justice obstruction a dis example, For circumstances.4 other (9-11.25 be followed years), to months 135 of a the effect may consider trict court years five mandatory consecutive by the 924(c) departing § sentence count, approxi- totaling the firearms See United assistance. for substantial Instead, mately years. 15 (5th 36, Alvarez, Cir. F.3d 89 v. 51 States year for to one departed downward court 1995) (district impose may sentence court convictions, in six resulting first two the statutory on Government's minimum below resentencing, At imprisonment. years assistance); reflect substantial motion to 15-years approximate conceding that an 530, F.3d Schaffer, v. 110 severe”, United States the Govern- “too sentence Cir.1997). 532-33 that, court would if ment stated 108- only 50% depart downward Further, departure will not allowing this appeal the range, it would not 135 months 924(c). § Con- purpose of undermine the sentence. alia, was, defen- inter gress’ intent 924(c) a spend § so, convicted under the sen- dants done the

Had prison. years five minimum of would underlying offenses tence for changed by Supreme ly be modified found in this circuit were 4. Two other cases controlling prece- contrary previous Court departed downward the district court where at 1109. This demonstrates dent”. Id. 924(c) was involved. In § sentence a where impact Wainuskis, considered F.Supp. 1101 942 States United deciding extent mandatory sentence (S.D.Miss.1996), defendant in which the underlying sen- offense 924(c) § guilty violation and pleaded tence. offenses, depart underlying the district court range 78 to 97 924(c). provides ed downward from mandato for a also Section imposed a sentence to imprisonment 30-month use months ry 30-year term of 924(c) five-year § consecutively with types run firearms. In United of certain Cir.1996), Later, 699, Branch, change in the inter to a 738 due sentence. ce 1467, firearm, 1185, denied, “use” U.S. 117 S.Ct. pretation for the 520 term rt. (1997), 924(c), Bailey of the defendants § v. United 681 one employed see L.Ed.2d 137 501, States, provision, but the 133 U.S. (1995), 116 S.Ct. was convicted 516 challenged departed downward to district court the defendant L.Ed.2d imposing the man 924(c) charge. imprisonment, rather § The district plea her by required the stat datory 30-year sentence have made that it "would not noted de appeal the did not Government departure if ute. The [it] a substantial such 924(c) parture. subsequent- ] [§ had known Singleton, States v. totality of the circumstances found to man- (5th Cir.1994) (Congress’ concern date downward 924(c) § 1984 amendments to enacting Koon, the Court stated that in providing for a minimum mandatory- crimes by police committed officers in sentence for of a use firearm certain beating suspect, “were definition the crimes). purpose That is more than satis purposes same for of sentencing law as six-year imposed by fied police those of other officers convicted the district court.5 under 18 242 of using unreason- 924(c) Moreover, neither nor Koon, able force in arresting suspect”. law of this circuit state that a district court However, U.S. at 116 S.Ct. 2035. may impact never consider the of a five- the Court on the videotape relied year mandatory sentence. states Caldwell crime, publicity, public and the outrage that district courts based in affirming the downward departure. Id. criterion, solely on this but that here. situation judge carefully applicability: Koon’s if I my Even am incorrect in reading of (as Caldwell, and it is majority appears And as I in United recall States v. conclude) inappropriate to to ever consider the defendant in Koon is to be distin- impact the mandatory the firearms sen- guished Mr. from Winters. Koon was a tence, I would still affirm the sentence officer, police a law enforcement officer based the highlighted other factors by out working public. with the theOn judge, the including suscepti- district the hand, case, other in this Mr. bility prison. to abuse in Supreme As the was a Lieutenant in working Court has stated: “A sentence thus can be corrections in a prison. state He has ‘reasonable’ even if some of the reasons day-to-day prisoners, contact with given by the district court justify the presumably throughout the course of his presumptive guideline 15-year career with the Mississippi De- invalid, range provided are that the re- partment of Corrections. We know that maining reasons are sufficient to justify prisoners substantial number of who magnitude the departure.” the began doing time in the system state States, 193, Williams 503 U.S. eventually filter into system. the federal 112 S.Ct. 117 L.Ed.2d 341 logical And it’s to assume than even (1992). Here, totality the of the circum- though, certainly Mr. Winters’ case did stances, even disregarding mandatory the notoriety and publicity receive sentence, justifies our according requi- case, connected with the Koon nonethe- site deference to the judge district and great less received a deal of notoriety affirming in ... Mississippi the state of through In regard, the majority statés that the media an indictment because result- judge’s “second basis de- ed from recapture of an inmate who parture fact was the maliciously Winters’ status was by assaulted Mr. Win- ters, as a corrections officer makes highly him who struck the inmate with a fire- susceptible prison”. Maj. Opn. abuse arm while the inmate was on the back added). (emphasis Again, taken, recall, this was ... being truck as I “second”, separate, not a perhaps or alternative hospital already because basis; instead, it simply part he had by been struck a walkie-talkie 924(c)'s mandatory 5. provi mandatory preserved; Section value of the sentence is sion was also intended to deter the use of the district court sentenced Winters to five firearms the commission of crimes. United for the firearms conviction to be served Correa-Ventura, States v. 6 F.3d consecutively year 1 083- with one for the case, 1993). Cir. In this the deterrent conviction. and is litigation prison in extensive transported volved being while earlier someone a defendant’s gauge unique position in a penitentiary. back to in prison. abuse likelihood of close Thus, on the based susceptibility of Winters’ consideration to United majority also cites The with its consid- combined prison, (4th Cir.1996), abuse Rybicki, of this case unique eration “the erroneously [district] concludes mandatory sen- firearm the effect sta- mere that Winters’ court determined down- tence, departure”. justified as an officer tus ward. at no The district court Maj. Opn. that Winters deserved time intimated reasoning, rejects The aas of his status solely because a local or few stories stating “[a] majority’s reli- officer. corrections compare cannot newspaper state-wide misplaced; even Rybicki is ance emanating from outrage national Fourth Circuit majority notes that the ], not to mention in Koon beating issue [at with the issue faced Opn. at 485. Maj. riots”. subsequent law as a status the defendant’s “whether effectively writes reasoning majority’s can, itself, justify officer enforcement national by requiring law Koon out Maj. Opn. at 485 departure”. susceptibility for the outrage publicity added). (emphasis apply. exception to prison to abuse that was he judge stated The district require such Koon to read I do not on Win- solely downward based departing after dis- publicity. extensive In- officer.7 case, as a corrections position ters’ the Su- in that publicity cussing the susceptibility stead, found that determination stated preme Court be- departure was warranted to abuse the defendants the district by (1) offi- a corrections Winters was in cause: to abuse susceptible more would be (2) prisoners; with daily cer with contact of determination just the sort “is prison for 15 officer a by the he had been corrections deference accorded that must be he 111, increasing the amount contact years, 116 at 518 U.S. appellate courts”. (3) received the case case, prisoners; Likewise, with in this 2035. 5.Ct. Mississip- in media attention considerable regarding conclusion judge’s employed and pi, where Winters be publicity should local and state-wide the in- about have known prisoners would giv- than far more deference afforded (4) system cident; in the prisoners state noted, the sen- As majority.6 by en (5) the system; in- often federal been enter case has in this tencing judge (“Mere 1998) membership in a Cir. paucity of stating a “relative that there is 6. In n.3, susceptible may case”, be offenders that Maj. Opn. at 490 class of publicity in departure for a prison does merit view abuse in not majority erroneously substitutes its prison”); United vulnerability in court. This to abuse the district for that of of the facts 1269, (8th Drew, Cir. 1271 de v. 131 F.3d the district court's States question; is a factual (child 1997) and na pornography def conviction accorded far more should be termination support give. enough willing majority is defendant ivete erence (district vulnerability to Threadgill, 172 F.3d 375 See downward abuse); Kapitzke, be F.3d questions must 130 factual resolution of United States court's deference”). (8th (“Kapilzke's mere substantial "accord[ed] membership offenders that a in class make his cannot targeted other inmates Indeed, departures addressing downward in did extraordinary”). The district the defen- granted a result that were status depart merely because of Winters’ frequently in a class offenders dant’s status prison of a vulnerable class (such as a member child prisoners targeted other (i.c., prison guards), but instead have held other circuits pornographers), two surrounding the total circumstances based on allow a does not that Koon Wilke, this case. United States crime which Winters was convicted receive a year consecutive five sentence on beating prisoner. (even from his a stemmed a firearms count though weapon short, it majority is erroneous for the club), was instead used áas adding to that conclude that the judge only relied susceptibility and increasing otherwise on Winters’ corrections officer status to approximately 15 years.8 determining that a susceptibility to abuse upon Based experience his vast and exer- prison departure warranted. cising discretion, his broad judge that, concluded totality under the In concluding that “the district court circumstances, this situation was not abused its discretion it departed when contemplated; that the Commission never downward from guidelines simply be- intended that person a committing such an Winters was a cause law enforcement offi- offense would serve approximately 15 cer”, states that “[t]o allow prison; that, result, as a departure on the basis Winters is was outside the heartland.9 law enforcement officer thwart the purpose and intent guidelines”; The district court’s decision is further Sentencing “[t]he surely Commission supported by United v. Hemming considered the possibility that some defen- son, Cir.1998), dants violating person’s convicted of civil which upheld our court depar rights under color law would be law ture based on “the unusual facts of [the] earlier, enforcement officers. As noted case[,] ... Department of practice, Justice applied greater the Commission not lesser language and structure of guide sentences for such Maj. Opn. crimes”. line, and the absence of caselaw supporting (emphasis in original). the government’s typicality”. claim to Likewise, here consid Certainly, the contemplated Commission he, ered what experienced as an judge, the sad fact that persons some violating unusual, found to be the factors of this another’s civil rights would be law enforce- case; reasoning Court’s hold But, ment officers. that is not the issue at ing that atypical susceptibility to abuse in hand. At issue is whether the Commission prison may depar warrant that, contemplated for circumstances such ture; position Winters’ (corrections as a correctional as in exist this case officer years, officer for 15 thus him in placing captured escapee struck pistol), with contact with prisoners; countless the officer and the only would not a receive sub- (10 fact that stantial Winters was imprisonment beating term of convicted years) prisoner. under the a While the rights Guidelines for civil Government asserts (as justice violations, obstruction greatly typical in- this is a it did unsuc creasing, among other things, suscepti- cessfully in Hemmingson), au cites no bility prison, to abuse in but would thority also typical show that a this is 18 points 8. The determinations). Government to a letter from the court’s factual See also Prisons, stating Walters, Bureau of equipped (5th that it is United States v. 87 F.3d 663 - Winters, protect prisoners, Cir.), denied, -, such cert. U.S. 117 S.Ct. special security Presumably, needs. (1996), the 136 L.Ed.2d 390 where our court Bureau could have said the same for the judge's deferred to the district determination Again, Supreme defendants in Koon. mitigation that the defendant in re deserved Court affirmed susceptibili- court’s district ceiving money laundering a sentence be case, ty departure to abuse deferring in cause he did not receive of the stolen judgment of the district court on such departure funds. Our court be affirmed matters. departure cause the extent of the was reason sentencing guideline able and money “the Threadgill, laundering commentary F.3d 357 and its make no men (affirming money personal in tion of the failure to a receive benefit laundering deferring case and mitigating to district as a factor”. Id. at 671-72. age and advanced on the defendant’s based prosecution.10 § 242 sur- the circumstances infirmity and on use of court’s Moreover, conviction 10-year-old almost rounding an supported circumstances totality adjust- in career criminal a that resulted Cir- the Tenth case from post-Aocm in a af- Collins, In 122 F.3d at 1305. ment. Collins, 122 F.3d In States cuit. United that, al- Tenth Circuit stated firming, the (10th Cir.1997), 1297, 1302-03 (such as characteristics offender though impact of Koon reviewing the began not be ordinarily should infirmity) age and departures. of downward review appellate account, consid- they could be into taken requires its that Koon noted The court circum- with other combination ered “in de- for the factual review most deferential histo- criminal stances defendant’s Id. at court. by the district terminations added.) Thus, rather (Emphasis ”. ry Id. 2046). 116 S.Ct. (citing reasoning parsing the district legal part of Here, supra, as discussed here), (as erroneously does court’s decision basis of the the reasons Circuit considered the Tenth prison. to abuse susceptibility Winters’ man- in the same departing downward has held that Court Supreme Again, the them— presented ner as the district deciding account taken into be that, circumstances of the total part Thus, as also depart downward. heart- the case from the removed together, left only determinations supra, cussed land. judge’s are the for our review fac- rendered a Eighth Circuit Recently, the sus- would be findings tual In case. in a similar decision to which we prison, to abuse ceptible Colbert, Cir. (stated deference substantial grant must officer, defendant, 1999), police supra, as discussed by Threadgill, § 242 he beat violating after convicted of those “according] decisions with equate jail. On in the local suspect being held 376). deference”, greatest claimed, among oth appeal, the defendant district court erred that the things, er recognized that court also The Collins under Koon depart downward not, alone, refusing to support that would some factors officer, defendant, police aas because properly could prison; susceptible to abuse would be war- factors to conjunction with other defen Collins, provoked the the victim because rant a downward dant; re- of the defendant’s and because departed downward court in to the district deference prosecutions substantial 10. A search of 18 U.S.C. Supreme determining typicality of a case. our court or appealed to either opinion Further, re- resulting published in a 242 con type CourL of this lack involving prison guard only one case vealed ma before court undermines victions beating prisoner. In United accused of court must that the district jority's conclusion (5th Cir.1987), Bigham, 812 F.2d 943 States v. in departures should be reversed because be struck, beat, recap- guards and burned prison which infrequency with frequent. Given the prisoners returning after escaped tured appeals these decide court must opinion in the prison. There is no indication cases, one us departures such as the before prisoners guards any struck of the "frequent”. hardly described as can opinion does not The indicate gun. with a Moreover, re jurisdiction to lacks our court imposed length on of the sentence depart to down view a district court's refusal the defendants. a mis was on unless its decision based ward reported in- paucity of the cases Given the authority to do so. lacked belief that it taken U.S.C. 242 volving appeals convic- from 18 Valencia-Gonzales, See, e.g., United States inmates, beating it is unclear guards tions for 1999). (5th Cir. 346-47 majority reaches the conclusion how the majority’s conclusion further undermines Indeed, it is typical 242 case. is a this case court can atypical, as is not our this case on see so few cases appellate courts because a downward cases in only review those which addressed appeal to those relative must, when it is should, granted, not give departure is that we trict courts refused. sponsibilities case, and, to Ms end, children and-fianceé. stances of the in the de- The Eighth Circuit affirmed decision to the discretion and reasoning ferred Colbert, however, depart.11 not to involved the district court. -precisely This is n different than those present approach here: the majority has erroneously first, the defendant in Colbert did not as- failed to follow here. sert there publicity surrounding approach warranted, Such an is where conviction that would increase sus- the district judge carefully considered a ceptibility prison; second, to abuse in combination of factors that lead it to find here, judge rely the district did not atypical. this case By separating out each responsibilities, family either as discussed of the reasons and analyz- infra, or the conduct the victim in decid- own, ing each' on its majority destroys ing depart to downward. any possibility of a district court departing when a presents downward ease numerous

Interestingly, although the Colbert court that, factors while each alone affirmed the district not court’s decision not to support departure, downward, depart make the total supports Colbert affirm- atypical.12 Sentencing ing In Commission rejecting here. not, did departures intend for contentions, to be defendant’s made Colbert notes that only in those case where one factor Koon did not made apply because “there nowas atypical, the case but not in extraordinary contrast, those cases publicity”. where a here, combination of factors made it found that so. there Further, significant publicity. Finally, I disagree with the majority’s Eighth Circuit did not devote much discus- conclusion that the district court consid analyzing sion to the'district court’s deci- ered Winters’ family responsibili ties and Rather, very sion. after a brief discussion in departing ties downward. In so doing, Koon, holding court stated: the majority quoted opin from our court’s “The District Court these felt differences appeal case, ion for the first in this justified it in refusing depart downward. Winters, States v. 105 F.3d 200 Cir. We see no abuse of discretion in these 1997). There, our court stated: determinations.” Id. at 597-98. that, say remand, That not to there (cid:127) Thus, Eighth parse did Circuit can be possibility no of a downward and dissect the district court’s reasoning family based on ties or re on each of the sponsibilities bases or the employ defendant’s rejected denying departure. ment. See 116 S.Ct. at 2050. Rather, the court followed (Congress grant did not authority courts court’s lead in examining eircum- sentencing to decide what considerations 11. As discussed in the rule note in our authority address whether it had the generally jurisdiction we lack review the refusal-to-depart-downward claim. review a denial of a downward Instead, proceeded the court to the merits See, Valencia-Gonzales, e.g., 172 F.3d at 346- appeared to review the district court's Eighth 47. The follows the same Circuit rule. decision under an of discretion abuse stan- See, Johnson, e.g., United dard. 1999) ("We juris 572-73 Cir. diction review the district court’s discre my "totaliLy likens use of tionary decision not the circumstances” to "mantra”. For this only from the Guidelines if the district court review, Stating well it should be. that "[a] acted with motive unconstitutional or erro nothing ‘total’ is more than the sum of its neously believed that authority it lacked the component parts”, Maj. Opn. at the ma- factor”) (in mitigating consider jority only parts examines never the omitted). quotation ternal The defendant in ap- sum. This is at with our odds court's Colbert did not claim that the district court proach Threadgill Hemmingson, where acted with an unconstitutional motive or un der an we erroneous belief that it looked at the total circumstances rather could de Nevertheless, part downward. critically parsing the court did stated reason. each case.) But every inappropriate are cite reasoning fails necessary satisfy compelling type this high standard very the Guidelines.

departure from added). The (Emphasis F.3d at sentence of the last

majority quotes 484-485, it is but Maj. Opn. at

paragraph, appeal;

inapplicable his not, resentencing, base did

judge family respon- ties on Winters’

decision

sibilities. discussed,

Instead, Because I would factors. to other

looked deference

accord, substantial required, the sen- affirm and would findings him, respectfully I imposed by

tence

sent. COLSON, Niday

Joy Plaintiff-

Appellant, GROHMAN; Hogg; Mike Jack

Paul City Roberts;

Roberts; Stella Defendants-Appellees.

Pearland,

No. 97-41388. Appeals, Court

United States

Fifth Circuit. 26, 1999.

April

Case Details

Case Name: United States v. Terry Lynn Winters

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 23, 1999

Citation: 174 F.3d 478

Docket Number: 98-60181

Court Abbreviation: 5th Cir.