NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

KOON v. UNITED STATES

certiorari to the united states court of appeals for the ninth circuit

No. 94–1664. Argued February 20, 1996—Decided June 13, 1996

After petitioners, Los Angeles police officers, were acquitted on state charges of assault and excessive use of force in the beating of a suspect during an arrest, they were convicted under 18 U. S. C. §242 of violating the victim's constitutional rights under color of law. Although the applicable United States Sentencing Guideline, 1992 USSG §2H1.4, indicated that they should be imprisoned for 70 to 87 months, the District Court granted them two downward departures from that range. The first was based on the victim's misconduct, which contributed significantly to provoking the offense. The second was based on a combination of four fac tors: (1) that petitioners were unusually susceptible to abuse in prison; (2) that petitioners would lose their jobs and be precluded from employment in law enforcement; (3) that petitioners had been subject to successive state and federal prosecutions; and (4) that petitioners posed a low risk of recidivism. The sentencing range after the departures was 30 to 37 months, and the court sentenced each petitioner to 30 months. The Ninth Circuit reviewed the departure decisions de novo and rejected all of them.

Held:

1. An appellate court should not review de novo a decision to depart from the Guideline sentencing range, but instead should ask whether the sentencing court abused its discretion. Pp. 8–17.

(a) Although the Sentencing Reform Act of 1984 requires that a district court impose a sentence within the applicable Guideline range in an ordinary case, 18 U. S. C. §3553(a), it does not eliminate all of the district court's traditional sentencing discretion. Rather, it allows a departure from the range if the court finds ``there exists an aggravating or mitigating circumstance of a kind, to a degree, not adequately taken into consideration'' by the Sentencing Commission in formulating the Guidelines, §3553(b). The Commission states that it has formulated each Guideline to apply to a ``heartland'' of typical cases and that it did not "adequately . . . conside[r]" atypical cases, 1995 USSG ch. 1, pt. A., intro. comment. 4(b). The Commission prohibits consideration of a few factors, and it provides guidance as to the factors that are likely to make a case atypical by delineating certain of them as ``encouraged'' bases for departure and others as ``discouraged'' bases for departure. Courts may depart on the basis of an encouraged factor if the applicable Guideline does not already take the factor into account. A court may depart on the basis of a discouraged factor, or an encouraged factor already taken into account, however, only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case. If the Guidelines do not mention a factor, the court must, after considering the structure and theory of relevant individual Guidelines and the Guidelines as a whole, decide whether the factor is sufficiently unusual to take the case out of the Guideline's heartland, bearing in mind the Commission's expectation that departures based on factors not mentioned in the Guidelines will be "highly infrequent." Pp. 8–13.

(b) Although §3742 established a limited appellate review of sentencing decisions, §3742(e)(4)'s direction to "give due deference to the district court's application of the guidelines to the facts" demonstrates that the Act was not intended to vest in appellate courts wide-ranging authority over district court sentencing decisions. See, e.g., Williams v. United States, 503 U. S. 193, 205. The deference that is due depends on the nature of the question presented. A departure decision will in most cases be due substantial deference, for it embodies the sentencing court's traditional exercise of discretion. See Mistretta v. United States, 488 U. S. 361, 367. To determine if a departure is appropriate, the district court must make a refined assessment of the many facts that bear on the outcome, informed by its vantage point and day-to-day sentencing experience. Whether a given factor is present to a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially given that they see so many more Guidelines cases. Such considerations require adoption of the abuse-of-discretion standard of review, not de novo review. See, e.g., Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 403. Pp. 13–17.

2. Because the Court of Appeals erred in rejecting certain of the downward departure factors relied upon by the District Judge, the foregoing principles require reversal of the appellate court's rulings in significant part. Pp. 18–31.

(a) Victim misconduct is an encouraged basis for departure under USSG §5K2.10, and the District Court did not abuse its discretion in basing a departure on it. The court's analysis of this departure factor showed a correct understanding in applying §2H1.4, the Guideline applicable to 18 U. S. C. §242, both as a mechanical matter and in interpreting its heartland. As the court recognized, §2H1.4 incorporates the Guideline for the offense underlying the §242 violation, here §2A2.2 for aggravated assault, and thus creates a Guideline range and a heartland for aggravated assault committed under color of law. A downward departure under §5K2.10 was justified because the punishment prescribed by §2A2.2 contemplates unprovoked assaults, not cases like this where what begins as legitimate force in response to provocation becomes excessive. The Court of Appeals misinterpreted the District Court to have found that the victim had been the but-for cause of the crime, but not that he had provoked it; it also misinterpreted the heartland of the applicable Guideline range by concentrating on whether the victim's misconduct made this an unusual case of excessive force. Pp. 18–23.

(b) This Court rejects the Government's contention that some of the four considerations underlying the District Court's second downward departure are impermissible departure factors under all circumstances. For a court to conclude that a factor must never be considered would be to usurp the policy-making authority that Congress vested in the Commission, and 18 U. S. C. §3553(a)(2) does not compel such a result. A court's examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the Commission has proscribed, as a categorical matter, that factor's consideration. If the answer is no—as it will be most of the time—the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the applicable Guideline's heartland. Pp. 23–26.

(c) The District Court abused its discretion in relying on petitioners' collateral employment consequences as support for its second departure. Because it is to be expected that a public official convicted of using his governmental authority to violate a person's rights will lose his or her job and be barred from similar employment in the future, it must be concluded that the Commission adequately considered these consequences in formulating 1992 USSG §2H1.4. Thus, the career loss factor, as it exists in this case, cannot take the case out of §2H1.4's heartland. Pp. 26–28.

(d) The low likelihood of petitioners' recidivism was also an inappropriate ground for departure, since the Commission specifically addressed this factor in formulating the sentencing range for petitioners' criminal history category. See §4A1.3. Pp. 28–29.

(e) However, the District Court did not abuse its discretion in relying upon susceptibility to abuse in prison and the burdens of successive prosecutions. The District Court's finding that the case is unusual due to petitioners exceptional susceptibility to abuse in prison is just the sort of determination that must be accorded deference on appeal. Moreover, although consideration of petitioners' successive prosecutions could be incongruous with the dual responsibilities of citizenship in our federal system, this Court cannot conclude the District Court abused its discretion by considering that factor. Pp. 29–30.

(f) Where a reviewing court concludes that a district court based a departure on both valid and invalid factors, a remand is required unless the reviewing court determines that the district court would have imposed the same sentence absent reliance on the invalid factors. Williams, supra, at 203. Because the District Court here stated that none of four factors standing alone would justify its second departure, it is not evident that the court would have imposed the same sentence had it relied only on susceptibility to abuse and the hardship of successive prosecutions. The Court of Appeals should therefore remand the case to the District Court. Pp. 30–31.

34 F. 3d 1416, affirmed in part, reversed in part, and remanded.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, and Thomas, JJ., joined, in all but Part IV–B–1 of which Stevens, J., joined, and in all but Part IV–B–3 of which Souter, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part. Souter, J. filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined.