Revised May 11, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60181

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

TERRY LYNN WINTERS,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Mississippi

April 23, 1999

Before GARWOOD, BARKSDALE and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Winters was convicted of violations of 18 U.S.C. § 242 (depriving an individual of his civil

rights under color of law), 18 U.S.C. § 924(c) (use of a firearm during and in relation to a crime), and

18 U.S.C. § 1503 (obstruction of justice). The district court departed downward from the United

States Sentencing Guidelines at sen t encing. The government appealed. This court held that the

district court abused its discretion in sentencing Winters, vacated the sentence, and remanded for resentencing. The district court again departed downward from the guidelines, this time listing different

reasons for departure. The government again appeals the sentence. For the reasons stated herein,2

we vacate the sentence and remand for resentencing.

Factual Background and Procedural History

This appeal revisits the sentence of Terry Lynn Winters (Winters), which this cour t first

reviewed in United States v. Winters

, 105 F.3d 200 (5t h Cir. 1997). Winters was a correctional

officer at the Mississippi State Penitentiary at Parchman, Mississippi (Parchman). At the time of his

arrest, Winters had worked for Parchman for fifteen years.

In November 1991, inmate Larry Floyd escaped from Parchman in a stolen vehicle. Floyd

wrecked the vehicle and sustained injuries which left blood around the vehicle. The following day

Flo yd was captured at an abandoned house. Several officers beat Floyd after he was handcuffed

despite the absence of resistance on his part. The officers then placed Floyd in a truck for return to

the prison. During the trip, Winters squatted over Floyd and hit him several times forcefully on the

head with his service revolver knocking him unconscious. A small artery in Floyd’s head was severed

by the head blows resultin g in profuse bleeding. The Parchman staff physician testified that the

wound on Floyd’s head was consistent with “the type of wound that might result from a blow by a

gun barrel.”

A federal grand jury investigated the incident. The grand jury subpoenaed Robert McKnight

t o t est ify. McKnight was also a Parchman officer who had also participated in the capture and

beating of Floyd. Winters was McKnight’s superior o fficer. The night before McKnight was to

testify, Winters and another officer visited McKnight and pressured him to testify falsely.

The grand jury indicted Winters and four others for various federal offenses. Winters was

convicted of deprivation of a person’s civil rights under color of law (18 U.S.C. § 242), use of a

firearm during and in relation to a crime (18 U.S.C. § 924(c)), and obstruction of justice (18 U.S.C.3

§ 1503).

Under the United States Sentencing Guidelines, (USSG or guidelines), a violat io n of 18

U.S.C. § 924(c) (use of a fi r earm during a crime) carries a mandatory minimum sentence of sixty

months’ imp riso nment. Winters faced an additional 108 - 135 months’ imprisonment for the

convictions under 18 U.S.C. § 242 (deprivation of civil rights) and 18 U.S.C. § 1503 (obstructi on of

justice). The guidelines also required a fine ranging from $20,000 - $200,000, two to three years of

supervised release, and a $150 special assessment.

The court departed downward from the guidelin es. The court sentenced Wi nters to the

mandatory sixty months for the firearms charge. The sixty months would be served consecutively

with an additional twelve months for each of the other two convictions (to be served concurrently).

Thereafter Winters was sentenced to three years supervised release, a $2000 fine and a $150 special

assessment.

The go vernment appealed Winters’ sentence. As a preliminary matter, this court had to

determine on what grounds the district court based the departure. The government argued that the

district court based its decision on three grounds, and asked this court to declare each reason an

improper basis for departure. Those grounds were: (1) that Winters’ act was a “single act of aberrant

behavior;” (2) Winters’ dist inguished record of service as a correctional officer; and (3) an

institutional norm that a prisoner who escaped would be beaten upon recapture. A panel of this court

disagreed with the government’s interpretation of the sentencing colloquy. It found that the district

court justified its departure on the sole ground that Winters’ act was a single act of aberrant behavior,

which was inconsistent with his prior service and high virtues. See Winters , 105 F.3d at 206.

The panel found that the district court’s interpretation of Winters’ actions was unsupported4

by the record. S ee id. at 207 (“A single act of aberrant behavior can be an appropriate basis for a

downward depa rt ure. . . . However, such a single act is not implicated by Winter’s conduct.”).

Therefore this court vacated Winters’ sentence and remanded for re-sentencing.

In February 1998, the district court again notified the government that it would depart from

the guidelines. This time, the district court listed its grounds as (1) a “Correctional Officer’s High

Susceptibility to Abuse in Prison” and (2) the “Mandatory and Consecutive 5-year Term of

I mpriso nment on Count 5 [the gun charge] results in an Excessive Term of Imprisonment.” The

government t imely objected to the departure. Based on the aforementioned grounds for departure,

the district court sentenced Winters to the same sentence as before. The government again appeals

Winters’ sentence.

Discussion

The government raises three issues in this appeal. First, the government contends that the

district court abused its discretion by departing downward on the basis that Winters faces a

mandatory 60 month term for the gun charge. Next, the government explains that the district court

abused its discretion when it offered Winters’s status as a correctional officer as basis for a downward

departure. Finally, the government urges this court to reassign this case to a different judge.

A. Abuse of Discretion

This court reviews a district court’s dep art ure fro m the sentencing guidelines for abuse of

discretion. See Koon v. United States, 116 S.Ct. at 2035. “[W]hether a factor is a permissible basis

for departure under any circumstances is a question of law and the court of appeals need not defer

to the district court’s resolution of that point.” See Koon

, 116 S.Ct. at 2047. However, this review1 The dissent chides the majority for failing to give substantial deference to the district court

judge who presi ded o ver the trial and has “extensive judicial service and experience, especially in

matters regarding the penitentiary.” The dissent’s emphasis on the trial judge’s experience amounts

to the proverbial red herring. The vast experience and legal acumen of the district judge is beyond

dispute and nothing in the majority’s opinion suggests otherwise.

We simply part company with the dissent’s notion that a district judge’s sentencing decisions

are virtually impervious from appellate review. Substantial deference has never been synonymous

with carte blanche approval o f a sentencing judgment in the face of legal error. Indeed, when

reviewing the basis for a downward departure, our function as a court of appeals would be rendered

superfluous if “substantial deference” operated as a talisman designed to ward off the scrutiny of this

court.

5 is still included under the abuse of discretion standard. S ee id. ( “A district court by definition abuses

its discretion when it makes an error of law.”).

A district court’s determination whether to depart from the guidelines is entitled to substantial

deference, “for it embodies the traditional exercise of discretion by a sentencing court.” S ee Winters

,

105 F.3d at 204. This is due primarily t o t he particular competence of trial courts in determining

whether a particular case is ordinary or unusual, as compared to the vast majority of other cases. 1

See id

., discussing Koon , 116 S.Ct. at 2047.

However, a district court cannot depart from the guidelines unless it first finds, on the record,

that facts or circumstances of a case remove that case from the “heartland” of typical cases

encompassed within the guideline. S ee Winters

, 105 F.3d at 205; United States v. Harrington

, 82

F.3d 83 (5th Cir. 1996) (court must articulate acceptable reasons for departure o n the record and

departure must be reasonable).

The Guidelines Manual explains that it intends each guideline to create a heartland of typical

cases. S ee Guidelines, c h.1, pt. A. S ee also Koon

, 116 S.Ct. at 2044. A court should not depart

from the guidelines unless it finds that conduct in a particular case “signif icant ly differs from the6

norm,” and takes the case outside this heartland. I d. Put another way, a sentencing court may depart

“if it finds 

### <

unusual circumstances’ that render the guideline level attached t o a specific factor

insufficient.” See United States v. Caldw ell, 9 85 F.2d 763 (5th Cir. 1993), c iting USSG § 5K2.0,

18 U.S.C. § 3533(b).

Additionally, the guidelines either forbid, discourage, or encourage several factors as bases

for departure. See id; See USSG § 5H1. Forbidden factors, such as race, sex, and national origin,

may never be considered by a sentencing court. S ee § USSG 5H1.10. Discouraged factors, including

e mplo yment records and family ties, are considered “not ordinarily relevant” and may only be

considered “in exceptional cases.” See USSG § 5H1.5, ch.5, pt. H; Koon , 116 S.Ct. at 2045.

Alternatively, a sentencing court may depart from the guidelines if “it finds an aggravating

or mitigating circumstance that was not adequately taken int o consideration by the Sentencing

Commission in formulating the sentencing guidelines.” See id. T o determine whether a circumstance

was adequately considered by the Commission, courts may “consider only the sentencing guidelines,

policy statements, and official commentary of the Sentencing Commission.” United States v. Koon

,

116 S.Ct. 2035, 2044 (1996), quoting 18 U.S.C. § 3553(b).

1. Mandatory 60 Month Gun Charge As Basis for Departure

The district court determined that in light of the mandatory sixty month sentence required for

the gun charge, following the guidelines on the other charges wo uld impose too harsh a sentence.

Therefore, the district cou rt departed downward from the guidelines on the sentences for the civil

rights and obstruction of justice charges.

No permissible basis for departure was provided b y t he gun charge. In U nited States v.

Caldwell

, this court considered whether the fact that a defendant faced a mandatory minimum2 See id. , Application Note 4.

“Where there is also a conviction fo r the underlying offense, a

co nsolidated fine guideline is determined by the offense level t hat

7 sentence for the use of a firearm during a crime, pursuant to 18 U.S.C. § 924(c), could justify a

downward departure from the guidelines for the underlying crime. See United States v. Caldwell

,

985 F.2d 763, 764-65 (5th Cir. 1993). It cannot.

The defendant in Caldwell had been caught exchanging drugs in a ho tel room , where l aw

enforcement officers found a gun. S ee Caldwell

, 985 F.2d at 764. Caldwell pleaded guilty to a drug

offense and to the use of a firearm in the commission of that crime (pursuant to 18 U.S.C. § 924(c)).

See id. The district court noted that the gun charge carried a mandatory minimum sentence of sixty

months’ imprisonme nt. S ee id. The district court determined that, because the gun played only a

minimal role in the crime, following the guidelines on the drug offense would result in an unduly harsh

sentence. S ee id. Since the court was not able to depart downward on the gun charge, the court

departed downward from the guidelines on the underlying drug offense. See id.

This court reversed. S ee id. at 765. The guidelines permit departure only where a mitigating

or aggravating factor is not adequately taken into consideration by the guidelines themselves. S ee

id. In the case of a § 924(c) charge, however, “the guidelines do consider the interplay of § 924(c)

and themselves.” S ee id. As we previously explained, the guidelines specifically control the

sentencing of def

endants convi cted under § 924(c) a nd the underlying offense. S ee id. S ee also

USSG § 2K2.4 (limit ing additional offense-specific enhancement for use or possession of a weapon

where a defendant has also been sentenced under § 924(c)). Furthermore, the guidelines anticipate

that the underlying offense level will already be reduced when there is a separate gun charge because

the underlying offense-level will not include any applicable weapons enhancement. 2 Accordingly, thewould have applied to the underlying offense absent a conviction 18

U.S.C. § 844(h), § 924(c), or § 929(a). This is required because the

offense level for the underlying offense may be reduced when there is

also a conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a) in

that any specific offense ch aract eristic for possession, use, or

discharge of a firearm is not applied. . . . “

8 defendant in Caldwell had not b een sent enced to an additional weapon enhancement for his

underlying drug offense.

The Sentencing Commission thoroughly considered the interplay of the mandatory minimum

sentence for use of a firearm with the sentence guidelines for the underlying crimes. The guidelines

prohibit a court from departing from the guidelines based on a factor that the Sentencing Commission

considered in formulating the guidelines. S ee Caldwell

, 985 F.2d at 765. Therefore, this court held

as a matter of law that a mandatory minimum sentence under 924(c) cannot justify a do wnward

departure for the underlying offense. See id.

Under Caldwell

, therefore, the mere fact that Winters faced a sixty-month minimum sentence

on the gun charge cannot by itself justify a departure from the guidelines. Thus, the district court’s

departure was allowable only if unusual circumstances remove this case from the heartland of cases

contemplated by the guidelines.

The district court determined that this is an unusual case for which t he guidelines are

inadequate. First, the court noted that Winters lawfully possessed his weapon. S ee id. The court

recognized that Winters’ lawful possession of the gun was not sufficient grounds for departure, but

stated that it added to the totality of the circumstances calling for departure. I d. at 28. Second, the

court recognized the fact that Winters’ was a law enforcement officer, and noted his service record.

“Let me inject this. If ever there has been an unusual case under the guidelines it is that this 15-year9

vet eran of law enforcement with the Department of Corrections who, the evidence shows, had an

unblemished record and who exhibited this type of behavior.” See id. at 29.

A district court’s determination of w hat is a usual or unusual case is entitled to substantial

deference. S ee Koon

, 116 S.Ct. 2035. However, the district court offered no facts which

differentiate this case from any other case in which a law enforcement officer uses excessive force or

obstructs justice.

Instead, the district court found this case extraordinary primarily because of Winters’ personal

characteristics. Personal traits such as those relied upon by the district court are not proper bases for

departures from the guidelines. See Winters , 105 F.3d at 206. S ee also United States v. O’Brien,

18 F.3d 301, 303 (5th Cir. 1994) (holding that departure based on assessment of defendant’s good

character is inconsistent with guidelines); Harrington

, 82 F.3d at 88 (recognizing that a defendant’s

personal characteristics are not usually acceptable grounds for departure).

For example, Winters’ status as a correctional officer and his fifteen year service history do

not provide proper grounds for departure. Employment status and records of civic or public service

are discouraged factors under the guidelines, and can therefore be grounds for departure only in

exceptional cases. S ee USSG § 5H1.5, 11. The fact that Winters’ worked for the prison system for

fifteen years surely does not by itself t ake Wint ers out of the “heartland” of officers normally

convicted of violating an inmates’ civil rights. See also United States v. Rybicki , 96 F.3d 754, 758

(4th Cir. 1996) (Vietnam Veteran with 20 years milit ary service and res po nsibilities to mentally ill

wife and sick son did not present “exceptional” case).

Furthermore, Winters’ status as a correctional officer is closer to an aggravating factor rather

t han a mitigating one. See Winters

, 105 F.3d at 207. Winters’ status as a corrections o fficer10

necessarily meant that the criminal conduct

- which took place in his capacity as a corrections officer

-

constituted an abuse of a public position. The guidelines specifically state that crimes involving the

abuse of public trust may be considered aggravating

- not mitigating

- factors. See id., citing U SSG

§ 3B1.3. S ee also Winters

, 105 F.3d at 207 (“[T]he Commission considered criminal acts committed

by government agents to require a firmer response in order to prevent them.”).

The guidelines also discourage departures based on family ties and responsibilities. S ee USSG

§ 5H1.6. Accordingly, courts should only depart from the guidelines on these bases in rare or

exceptional cases. See id. There is no evidence that Winters’ family will suffer any more than any

family suffers when one member is sentenced to prison. See Harrington

, 82 F.3d at 89; United States

v. Kapitzke

, 130 F.3d 820 (8th Cir. 1997) (“[T]he disintegration of existing family life or relationships

. . . is to be expected when a family member engages in criminal activity that results in a period of

incarceration.”), citing United States v. Canoy

, 38 F.3d 893, 907 (7th Cir. 1994). Thus, Winters’

family ties do not present a valid basis for departure.

The district court held that all these factors should be taken into consideration together, to

take them outside the heartland of the guidelines. Indeed, the district court seems to have felt that

the severe punishment required by the gui delines in this case didn’t fit the crime. S ee R.E. Tab 6

p.257 (“The facts in this case do not warrant a sentence within the applicable guideline’s range for

counts 4 and 9 PLUS an additional 5-year mandatory and consecutive term of imprisonment on count

5.”). The Sentencing Commission recognized that such a case might occur, where several otherwiseinsufficient factors combined to justify a departure. See C ommentar y acco mpanying § 5K2.0.

However, the Commission stated such cases would be “extremely rare.”11

This is no t such an extremely rare case. Moreover, the district court has not articulated

“relevant facts and valid reasons” demonstrating why this case is extraordinary o r even unusual in

comparison to other cases under the g uideline. See Winters , 105 F.3d at 208. Once again “the

district court’s reasoning fails to cite the compelling facts necessary to satisfy the very high standard

for this type of departure from the Guidelines.” S ee id. Therefore, the district abused its discretion

in departing from the guidelines.

2. Status as Correctional Officer as Basis for Departure

The distric t co urt’s second basis for departure was the fact that Winter’s status as a

corrections officer makes him highly susceptible to abuse in prison. Winters had been an officer in

Mississippi prisons for over fifteen years when the incident occurred. During that time, the district

court reasoned, he had met many prisoners. Some of these prisoners would now likely be in federal

prison. Those prisoners would know that Winters had been a corrections officer. The district court

determined that this circumstance justified a departure based on Winters’s apparent high susceptibility

to abuse by other prisoners.

In Koon

, the United States Supreme Court held that the district court properly considered the

defendants’ particular susceptibility to abuse in prison as a basis for a downward departure. S ee id.

However, Koon was an ext reme case and no facts remotely similar to it are present here. Koon

involved the sentencing of the Los Angeles Police Department officers convicted of beating Rodney

King. The district court found that the “extraordinary notoriety and national media coverage of this

case, coupled with the defendants’ st at us as po lice officers, make Koon and Powell unusually

susceptible to abuse in prison.” See Koon, 116 S.Ct. at 2053.12

Any attempt to compare this case to the Rodney King incident is unavailing. A few stories

in a local or state-wide newspaper cannot compare to the national outrage emanating from the beating

of Rodney King, not to mention the subsequent riots. The notorious circumstances involved in K oon

and the identity of the officers involved received such sust ained national media coverage as to

permeate prison facilit

ies nationally. There is no record evidence to show that the instant event was

reported beyond the local area of its occurrence. Winters argues that this case is unique because he

was a corrections officer accused of beating an inmate. However, his situation is no t outside the

heartland of cases in which a law enforcement officer is accused of using excessive force or violating

a person’s civil rights under color of law.

Koon does not create a general rule that a defendant’s status as a police officer can justify a

downward departure. In United States v. Rybicki

, 96 F.3d 754 (4th Cir. 1996) the Fourth Circuit

considered whether a defendant’s status as a law enforcement offi c er can, by itself, justify a

downward departure based on “disproportionate problems” suffered by incarcerated police officers.

See Rybicki , 96 F.3d at 758. That court determined that allowing such a general rule suggests that

“law enforcement officers, as a class, are entitled to more favorable treatment under the Sentencing

Guidelines.” S ee id. The court found no indication t hat either Congress or the Sentencing

Commission intended to treat law enforcement officers more favorably than other defendants. See

id. Therefore, the Fourth Circuit held that a defendant’s mere status as a law enforcement officer

cannot justify a downward departure. See id.

Like Rybicki

, the district court offered no compelling reasons why Winters is any more

susceptible to abuse in prison than any other corrections officer sentenced to prison. Compare United

States v. Long, 977 F.2d 1264, 1278 (8th Cir. 1992) (allowing departure where defenda n t’s frail13

health left him "exceedingly vulnerable to possible victimization and resultant severe and possibly fatal

injuries.") with United States v. Russell

, 156 F.3d 687, 694 (6th Cir. 1998) (defendant’s deafness did

not leave him vulnerable to attack as in L ong ). Instead, the court determined that Winters’ mere

status as an officer justified the departure.

To allow a departure on the basis that Winters is a law enforcement officer would thwart the

purpose and int e nt of the guidelines. See United States v. Kapitzke

, 130 F.3d at 822 (allowing

depar t ure because child pornographers were susceptible to abuse in prison would thwart the

guidelines’ sentences for such crimes). The Sentencing Commission surely considered the possibility

that some defendants convicted of violating a persons civil rights under color of law would be law

enforcement officers. As noted earlier, the Commission applied g reater not lesser sentences for such

crimes. Therefore the district court abused it s discretion when it departed downward from the

guidelines simply because Winters was a law enforcement officer.

Having rejected the district court reasons for a downward departure as expressed in its notice

of intent to depart downward, we turn our attention to the dissent’s rejection of our methodology.

First, the dissent emphasizes that the district court made its determination based on the totality of the

circumstances. Indeed, the dissent recites the phrase “totality of the circumstances” as some mantra

which if stated frequently enough will supplant even the district court’s written basis for a departure.

Despit e the apparent wishes of the dissent, the “totality of the circumstances” is not simply a

paradigm which renders the district court’s basis for a downward departure insulated from review of

the elements which make up the totality.

A “total” is nothing more than the su m o f it s component parts. Here, those parts include,

inter alia

, Winters’s subjection to a mandatory minimum of five years and his susceptibility to abuse3 For example, the dissent highlights the reasons the district court found Winters susceptible

to abuse. We reject the same because all relate to Winters status as a correctional officer and nothing

in the record indicates that Winters is unique among other inmates who were formerly correctional

officers or polic e o fficers. The dissent’s attempt to minimize the effect of the Federal Bureau of

Prisons letter confirming that it is fully capable of housing Winters exposes the futility of its argument.

The dissent hypothesizes that the Federal Bureau of Prisons could have produced a similar

letter in Koon yet t he Supreme Court found that susceptibility to abuse should be considered.

Nothing in Koon indicates the existence of any such letter; therefore, it is equally plausible that no

letter existed. Yet, we need not engage in such conjecture regarding the facts in K oon because there

is little doubt that the facts surrounding the violation of Rodney King’s civil rights received far greater

expo sure than Winters’s violation of Larry Floyd’s. In fact, despite the dissent’s emphasis o n t he

publicity surrounding this case, nothing in the record bears upon the nature and extent of any such

publicity.

Furthermore, while the publicity in Koon introduced a measure of complexity in safely housing

the defendants in any federal facility, the relative paucity of publicity in this case precludes us from

finding a comparative measure of complexity. Winters spent 15 years working in a peni tentiary in

Mississippi and was imprisoned in Minnesota. By emphasizing Winter’s status as a corrections

officer, the dissent impermissibly lowers the bar for corrections officers.

14 in prison. Again, these are the two reasons articulated in the district court’s notice of intention to

consider a downward departure. Individually, neither offers a basis for a downward departure. It

is axiomatic that c o mbined t hey do not offer a basis for departure. Similarly, we find that any

derivative from the articulated bases does not offer a basis for departure. 3

The dissent’s reliance on our recent decision in United States v. Threadgill

, 1999 WL 212251

(5 th Cir. April 13, 1999) is mistaken. In T hreadgill

, the district court articulated two factors which

removed this case from the heartland. There, as in the case at bar, the majority accorded substantial

deference to the factual determinations of the district court; neverthele ss, t he majority offered an

assessment of the substantive bases for the departure. Based on its analysis, the majority found that

Threadgill “was certainly not a case where t he dist rict court disregarded an applicable Guidelines

range in favor of another it preferred.” I d. at * 18. Here, the applicable guideline range required a

sentence of 108-135 months of imprisonment for violation of 18 U.S.C. § 242 and 1503, to which15

the mandatory consecutive 60 months imprisonment for the firearms violations under 18 U.S.C. §

924(c) would have been added. See Winters, 105 F.3d at 206. While we do not concern ourselves

with the extent of the departure, the record indicates that the district court has failed to articulate a

plausible basis for departure. In so doing, the district court impermissibly sentenced Winters to i ts

“preferred” sentence of 12 months for a second time.

B. Reassignment to a Different Judge

Finally, the government urges this court to reassign this case to a different district judge on

remand. A federal court of appeals has the supervisory authority to reassign a case to a different trial

judge on remand. S ee Johnson v. Sawyer

, 120 F.3d 1307 (5th Cir. 1997); 28 U.S .C. § 2106.

However, this is an extraordinary power and should rarely be invoked. S ee id. Such reassignments

“should be made infrequently and with the greatest reluctance.” I n re Corrugated Container

Antitrust Lit igation: Adams Extract Co. v. Green Pay Packaging , 752 F.2d 137 (5th Cir. 1985)

(quoting Koeller v. Richardson-Merrel

, 737 F.2d 1038, 1067 (D.C. Cir. 1984) (Richey , J.,

concurring)).

This Circuit has not decided which of two tests should be used to decide whether to reassign

a case. S ee Johnson

, 120 F.3d at 1333. Several circuits will reassign a case to avoid bias or the

appearance of bias. See id. The Ninth and Tenth Circuits, however, have adopted a more formal test,

which requires the court to consider three factors:

(1) whether the original judge would reasonably be expected upon remand to

have substantial difficult

y in putting out of his or her mind previously-expressed views

or findings determined to be erroneous or based on evidence that must be rejected,

(2) whether reassignment is advisable to preserve the appearance of justice, and (3)

whether reassignment would entail was t e and duplication out of proporti on to any

gain in preserving the appearance of fairness. Johnson

, 120 F.3d at 1333

, citing Davis

& Cox v. Summa Corp., 751 F.2d 1507, 1523 (9th Cir. 1985) (quoting United States16

v. Robin , 553 F.2d, 10 (2d Cir. 1997).

See also United States v. White , 846 F.2d 678, 695-96 (suggesting three-prong test should

be used where there is no direct evidence of bias).

This case does not call for reassignment under either test. No showing has been made that

we are presented with a case of bias or antagonism toward one party in the case. C ontra, Johnson

,

120 F.3d 1307 (reassigning case where lower court made repeated antagonistic remarks and admitted

hostility towards IRS). Although the district court twice chose to depart downward from Winters’

sentence, it made no indication that it would refuse to impartially weigh evidence and decide the

matters before it objectively.

Moreover, the fact that this court has already reversed the district court does not necessarily

require reassignment. In U nited States v. O’Brien

, this court faced a procedurally similar situation.

See O’Brien

, 18 F.3d at 302. There, the district court had imposed a sentence which this Court later

vacated. S ee id. Upon remand, the district court again imposed an improper sentence. S ee id. On

the second appeal, one of the parties urged this court to reassign the case. S ee id. at 303-304. This

Court refused to do so. “The district judge will, we are confident, perform his duty. It is unseemly

for us to either assume that he will take a particular course or to suggest what he should do so long

as he reaches a decision in accordance with the controlling statutes.” S ee id.

, quoting United States

v. Denson

, 603 F.2d 1143, 1149 (5th Cir. 1979). S ee also United States v. Schoenhoff

, 919 F.2d 936

(5th Cir. 1990) (“We refuse to transfer an action for re-sentencing solely because two prior sentences

imposed by the trial court have been reversed.”). We decline the government’s invitation to reassign

this case.17 Conclusion

For the reasons stated herein, we VACATE Winter’s sentence and REMAND to the district

court for re-sentencing.18

RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting.

A district court is entrusted with disc retion to determine

which cases present extraordinary circumstances warranting a

downward departure from the Sentencing Guidelines. Accordingly, we

are required to give substantial deference to such decisions.

Because the maj ority has failed to do so, and, in addition, has

misread the reasons given at resentencing for t he downward

departure, I respectfully dissent.

To set the stage, three parameters bear noting: first, the

d istrict judge, in making a downward departure, is, as not ed,

entitled to “substantial deference”; second, the di strict judge

based the departure on the totality of the circumstances created by

the firearms count and the susceptibility to abuse in p rison

factors, rather then treating them separately, as the majority does

erroneously; and third, only the departure, not its extent, is at

issue.

In this regard, a very recent decision by our court summarizes

nicely, in the light of Koon v. United States

, 518 U.S. 81 (1996),

the framework for reviewing downward departures:

[O]ur analysis of a district court’s decision

to depart consists of three separate

determinations. An appellate court must ask:

(1) whether the factors relied on by the

district court for departure are permissible

factors under the Guidelines; (2) whether the

departure factors, as supported by evidence in4 The majority misconstrues Threadgill in part, by relying on

Threadgill’s statement that it “was certainly not a case where the

district court disregarded an applicable Guidelines range in favor

of another it preferred”. Maj. Opn. at 14 (quoting T hreadgill

, 1999 WL 212251 at *18). Then, although recognizing that the e xtent

of the departure is not at issue here, the majority concludes that

“the district court impermissibly sentenced Winters to its

‘preferred’ sentence of 12 mo nths”. Maj. Opn. at 15. True, the

quoted statement from Threadgill in part concerned the second

inquiry on review: whether the case is outside the heartland. But,

it also concerned the third inquiry on review: whether the e xtent

of the departure was reasonable. T hreadgill

, 1999 WL 212251 at

*18, *22 n.16. Again, we are concerned only with the second

inquiry — the heartland question. And, it is in this regard that

the majority’s treatmen t of T hreadgill is most troubling, by

failing to address Threadgill ’s discussion of the standards to be

applied in making the first two inquiries (whether the factors were

permissible and whether the facts take the case out of the

heartland).

- 19 -

the record, remove the case from the heartland

of the applicable guideline; and (3) whether

the degree of departure is reasonable.

United States v. Threadgill , 1999 WL 212251, *13 (5th Cir. 1999).

For our purposes here, the Supreme Court has already decided that

departures based on susceptibility to abuse in prison are

permissible, as discussed infra ; and, as noted, the Government does

not challenge the extent of the departure. Therefore, at issue is

only the “heartland” question. 4

Concerning that question, the Supreme Court in Koon , decided

after the first sentencing in this case, addressed, amon g other

things, the district court’s decision to depart downward based on

the enormous publicity and outrage surrounding that case. The

Court recognized the superior position of district courts in- 20 -

determining whether, for sentencing purposes, a case was “typical”:

Before a departure is permitted, certain

aspects of the case must be found unusua l

enough for it to fall outside the heartland of

cases in the Gui deline. T o resolve this

question, the district court must make a

refined assessment of the many facts bearing

on the outcome

, informed by its vantage point

and day-to-day experience in criminal

sentencing

. Whether a given factor is present

to a d egree not adequately considered by the

Commission, or whether a discouraged factor

nonetheless justifies departure because it is

present in some unusual or exceptional way,

are matters determined in large part by

comparison with the facts of other Guidelines

cases. District courts have an institutional

advantage over appellate courts in making

these sorts of determinations, especially as

they see many more Guidelines cases than

appellate courts do. In 1994, for example,

93.9% of Guidelines cases were not appealed.

To ignore the district court’s special

competence

– about the “ordinariness” or

“unusualness” of a particular case

– would

risk depriving the Sentencing Commission of an

important source of information, namely, the

reactions of the tria l judge to the factspecific circumstances of the case.

Id. at 98 (inte rnal citations and quotations omitted) (emphasis

added).

This passage from Koon reveal s two errors in the majority’s

reasoning. First, the majority states that there are two permitted

bases for a downward departure: if the conduct is outside the

heartland of typical cases; and “ [a]lternati vely , ... if ‘[the

sentencing court] finds an aggravating or mitigating circumstance

that was not adequately taken into consideration by the Sentencing5 In addition to worrying that a red herring (th e district

judge’s expertise) has been dragged over the heartland issue, the

majority fears that my construction of the substantial discretion

standard would render downward departure decisions “virtually

- 21 - Commission in formulating the sentencing guidelines’”, quoting

Koon

, 518 U.S. at 81 (emphasis added). Maj. Opn. at 5-6. As I

read the Guidelines and Koon , these are not alternative permitted

downward de parture bases. Rather, the departure is permitted if

the factors in the case take it outside the “heartland”; that

results when the circumstances are so unusual that they were not

taken into consideration by the Sentencing Commission. S ee id. at

94 (Guidelines “apply to a heartland of typical cases. Atypical

cases were not ‘adequately taken into consideration,’ and factors

that make a case atypical provide potential bases for departure”);

see also United States v. Rivera

, 994 F.2d 942, 947 (1st Cir. 1993)

(a case that is outside the heartland of a guidelin e “is, by

definition, an ‘unusual case’”). This clarification is important

because, in the final analysis, the district court’s reason for the

downward departure at issue resulted from it finding the sentencing

considerations outside the heartland. It came to this conclusion

because the unique, total circumstances of this case had not been

taken into consideration by the Commission.

Second, the above-quo ted passage from K oon notes the

substantial deference that appe llate courts must accord such

departure decisions. 5 As our court stated quite recently:impervious from appellate review”, and cautions that this standard

is not “designed to ward off the scrutiny of this court”. Maj. Opn.

at 5 n.1. Obviously, the substantial discretion standard is not

intended to have that effect. On the other hand, I simply

recognize, and (unlike the majority) am fai thful to, the narrow

standard of review that has been mandated. T hreadgill

, 1999 WL

212251, *16 (“it is the n ear-exclusive province of the district

court to decide whether a particular factor, or set of factors,

remove s a case from the applicable heartland” (emphasis added)).

Rather than apply this standard, the majority substitutes its

judgment for that of the district court.

- 22 - Koon thus teaches that wh en a district court

decides to depart based on the particular

facts of a case, it is acting within its

special competence. Accordingly, i t is the

near-exclusive province of the district court

to decide whether a particular factor, or set

of factors, removes a case from the applicable

heartland. W e must accord those decisions the

greatest deference

.

Threadgill

, 1999 WL 212251 at *16 (emphasis added) (internal

citations omitted).

As discussed more thoroughly infra

, the district judge went to

great lengths to explain why he thought this case is so unusual.

In addition to insight gained from having presided over the trial,

the district judge’s reasons w ere grounded in his extensive

judicial service and experience, especially with matters involving

the penitentiary, in that he has handled litigation concerning it

for more than 15 years.

But, in spite of the district judge’s unique position to find

this case outside the heartland, the majority dis misses his

reasoning, stating that Winters’ “situation i s not outside the

heartland of cases in which a law enforcement officer is accused of- 23 -

u sing excessive force or violating a person’s civil rights under

color of law”. Maj. Opn. at 11. In so doing, the majority cites

no authority for this proposition, and ignores the district judge’s

vast and unique experience in applying the Guidelines in this

instance.

Furthermore, the majority compounds the error by parsing the

judge’s reasoning and erroneously addressing each of his rationales

separately. In contrast, the district judge’s statements at

resentencing demonstrate that he considered all the circumstances

together, i n their totality, in concluding that the case was

outside the heartland. The majority addresses the two reasons the

district court gave in its “Notice of Intent to Depart” (the

mandator y firearm sentence and the K oon susceptibility to abuse

factor) as if our court must decide whether either alone would

support the district judge’s decision. This treatment misconstrues

that judge’s reasoning and undermines the substantial deference

owed him in such circumstances.

First, the majority rejects the mandatory five-year

c onsecutive sentence under the 18 U.S.C. §924(c) firearm s

conviction as a basis for departure, stating that “[n]o permissible

basis for departure was provided by the gun charge”. Maj. Opn. at

6. T he district judge agreed with this ; the firearms sentence was6 At resentencing, the district judge did not dispute that §

924(c) applied to Winters. S ee, e.g., United States v. Contreras

,

950 F. 2d 232, 241 (5th Cir. 1991), c ert. denied

, 504 U.S. 941

(1992) (§ 924(c) applies to police officers who commit crimes using

their firearm).

- 24 - not the basis for his departure. 6 Instead, the district judge

correctly considere d the interplay of the mandatory five-year

firearms sentence with the other circumstances in considering the

totality of the circumstances that warranted a departure. He made

clear that he was not departing solely because of the mandatory

firearms sentence and that he un derstood the import of U nited

States v. Caldwell , 985 F.2d 763 (5th Cir. 1993).

In Caldwell

, the defendant was convicted under § 924(c ) and

for underlying drug offenses. The district court departed downward

because the gun did not have an “integral role” in the offense and

becau se of the defendant’s minimal participation in the crime.

Caldwell

, 985 F.2d at 765. Our court reversed, concluding that the

case did not present “u nusual circumstances” justifying a

departure. I d. at 766. That conclusion was based on finding that

the Sentenc ing Commission had taken into account the interplay

between § 924(c) and the underlying drug offense. Id.

The interplay between § 924(c) and the underlying civil rights

offense in this case has also been taken into consideration by the

Commission. Winters’ base offense level for the underlying civil

rights offense was not enhanced for the use of the firearm, because- 25 -

that use was taken into account for the § 924(c) sentence. S ee

U.S.S.G. § 2H1.4(a)(1994 ed.) (court to apply g reater of offense

level 10 or 6 plus offense le vel of underlying offense for § 242

convictions); U.S.S.G. § 2A2.2(b)(2)(B) (guideline for aggravated

assault – the underlying offense in this case – that provides a 4

level increase for use of a firearm); U.S.S.G. § 2K2.4 (underlying

offense should not be enhanced for use of a firearm when defendant

is also convicted under § 924(c)).

The distr ict judge understood this. This interplay is

reflect ed in the Presentence Report; there was no firearms

e nhancement to the base offense level for the civil rights

conviction. But, the district judge recognized that other

considerations came into play that, in his view, took this case

outside the heartland:

The facts [concerning Winters and those in

Caldwell ] are very distinguishable. Caldwell

[did not involve] a law enforcement officer.

Caldwell [concerned] a drug dealer arrested in

a motel room and [he] had a gun within the

useful area, I guess you cou ld say. I’m not

persuaded that Caldwell can be analogized to

the case against Mr. Winters

. And I say it

for this reason

. Mr. Winters legitimately had

this weapon on him. He was out on a mission

to recapture an escaped prisoner. He didn’t

shoot the victim with the gun. But he did,

the evidence show s, strike him over the head

with this gun. I simply meant to point out in

my downward departure reasons, reason No. 2

[in the notice

— the weapons count], that here

w e don’t have someone who was illegally in

possession, carrying or using a firearm. The

illegal use of it, though[,] was the striking- 26 - on the head. And while that alone perhaps is

not a sufficient ground for downward

departure, I mention it in conjunction with my

first ground [in the notice

– susceptibility

to abuse in prison] because the overall

totality of the circumstances in this case

call for a downward departure.

(Emphasis added.)

The district judge was within h is discretion in concluding

that the Sentencing Commission had not an ticipated such unusual

facts. Addressing this, the district judge stated:

Now, as a correctional officer searching for

an escaped prisoner, ... Winters legitimately

possessed a firearm during that search. And

following the capture of the escaped inmate,

Mr. Winters used this firearm for an illegal

purpose, to strike the victim on the head.

The defendant did not use the firearm w ithin

its designed purpose, but used the weapon as a

club to strike the victim. It is likely this

defendant did not give any thought to what he

used to hit the vic tim with, and used this

firearm to strike the victim because it

happened to be in his hand at the time he

chose to use illegal force against the victim.

It is also likely that Mr. Winters would have

used another item, such as a walkie-talkie,

which one of the guards did use against this

victim, a baton or something of that nature[,]

if that item, instead of a firearm, had been

in his hand when he chose to strike the

victim.

Moreover, I do not read Caldwell as preventing district courts

from ever considering the mandatory firearms sentence as one of the

factors in the decision to depart downward. Although the district

court may not depart solely on that basis, the district judge made

it clear that this was merely one consideration of many.- 27 -

Finally, Caldwell does not hold that, after a district court

has decided to depart downward based on a legitimate reason, it

cannot consider the firearms sentence in deciding the extent of the

departure. The Guidelines’ range for the civil rights and

obstruction of justice conv ictions was 108-135 months (9-11.25

years), to be followed by the mandatory consecutive five years for

the firearms count, totaling approximately 15 years. Instead, the

district court departed downward to one year for the first two

convictions, resulting in six years imprisonment. At resentencing,

conceding that an approximate 15-years sentence was “too severe”,

the Government stated that, if the district court would depart

downward only 50% from the 108-135 months range, it would not

appeal the sentence.

Had the district court done so, the sentenc e for the

underlying offenses would be between 4.5 to 5.63 years, which, with

the consecutive mandato ry five years, would have resulted in an

approximate 10-years sentence. In short, it appeared that the

Government want ed Winters to serve approximately 10 years. This

supports the Government’s unspoken recognition that, in the light

of the circumstances i n this case, imprisonment of greater than

approximately 10 years is outside t he heartland. (Again, the

extent of the departure is not at issue.)

Perhaps the majority is concerned that allowing the district

court to consider the five-year mandatory sentence as a factor7 Two other cases were found in this circuit where the district

court departed downward where a § 924(c) sentence was involved. In

United States v. Wainuskis

, 942 F. Supp. 1101 (S.D. Miss. 1996), in

which the defendant pleaded guilty to a § 924(c) violation and

underlying offenses, the district court departed downward from a

range of 78 to 97 months and imposed a 30-month sentence to run

consecutively with the § 924(c) five-year sentence. Later, due to

a change in the interpretation for the term “use” of a firearm, as

employed in § 924(c), see Bailey v. United States

, 516 U.S. 137

(1995), the defendant challenged her plea to the § 924(c) charge.

The district court noted that it “would not have made such a

substantial downward departure i f [it] had known that [§ 924(c)]

would subsequently be modified or changed by the Supreme Court

contrary to previous controlling precedent”. I d. at 1109. This

demonstrates that the district court considered the impact of the

mandatory sentence in deciding the extent of his departure for the

underlying offense sentence.

Section 924(c) also provides for a mandatory 30-year term of

imprisonment for the use of certain types of firearms. In United

States v. Branch , 91 F.3d 699, 738 (5th Cir. 1996), cert. denied

,

520 U.S. 1185 (1997), one of the defendants was convicted under

this provision, but the district court departed downward to 10

years imprisonment , rather than imposing the m andatory 30-year

sentence required by the statute. The Government did not appeal

the departure.

- 28 - would undermine the purpose of § 924(c). However, this and other

courts have considered the impa ct of the five-year mandatory

sentenc e in allowing departures in other circumstances. 7 For

example, a district court may consider the effect of a § 924(c)

sentence i n departing downward for substantial assistance. S ee

United States v. Alvarez

, 51 F.3d 36, 39 (5th Cir. 1995) (district

court may impose sentence below statutory minimum on Government’s

m otion to reflect substantial assistance); United Stat es v.8 Section 924(c)’s mandatory sentence provision was also

intended to deter the use of firearms in the commission of crimes.

United States v. Correa-Ventura

, 6 F.3 d 1070, 1083-84 (5th Cir.

1993). In this case, the deterrent value of the mandatory sentence

is preserved; the district court sentenced Winte rs to five years

for the firearms conviction t o be served consecutively with one

year for the § 242 conviction.

- 29 - Schaffer , 110 F.3d 530, 532-33 (8th Cir. 1997).

Further, allowing this departure wil l not undermine the

purpose of § 924(c). Congress’ intent was, i nter alia

, that

defendants convicted under § 924(c) spend a minimum of five years

in prison. S ee United States v. Singleton

, 16 F.3d 1419, 1426 (5th

Cir. 1994) (Congress’ concern in enacting 1984 amendments to §

924(c) was in providing for a minimum mandatory sentence for use of

a firearm in certain crimes). That purpose is more than satisfied

by the six-year sentence imposed by the district court. 8

Moreover, neither § 924(c) nor the case law of this circuit

state that a district court may n ever consider the impact of a

five-year mandatory sentence. C aldwell states that district courts

may not depart based solely on this criterion, but that is not the

situation here.

Even if I am incorrect in my reading of C aldwell, and it is

(as the majority appears to conclude) inappropria te to e ver

conside r the impact of the mandatory firearms sentence, I would

still affirm the sentence based on the other factors highlighted by

the district judge, including the suscept ibility to abuse in- 30 -

prison. As the Supreme Court has stated: “A sentence thus can be

‘reasonable’ even if some of the reasons given by the district

court to justify the departure from the presumptive guideline range

are invalid, provided that the remaining reasons are sufficient to

j ustify the magnitude of the departure.” W illiams v. United

States

, 503 U.S. 193, 204 (1992). Here, the totality of the

circumstances, even disregarding the mandatory sentence, justifies

our according the requisi te deference to the district judge and

affirming the departure.

In this regard, the majority states that the district judge’s

“ second basis for departure was the fact that Winters’ status as a

corrections officer makes him highly susceptible to abuse in

prison”. Maj. Opn. at 11 (emphasis added). Again, this was not a

“second”, separate, or alternative basis; instead, it was simply

part of the totality of the circumstances found to mandate downward

departure.

In Koon

, the Court stated that the crimes committed by the

police officers in beating a suspect, “were by definition the same

for purposes of sentencing law as those of any other police

officers convicted under 18 U.S.C. § 242 of using unreasonable

force in arresting a susp ect”. K oon

, 518 U.S. at 112. However,

the Court relied on the videotape of the crime, the publicity, and- 31 -

the public outrage in affirming the downward departure. Id.

The district judge carefully considered Koon ’s applicability:

And as I recall in United States v. Koon , the

defendant in Koon is to be distinguished from

Mr. Winters. Koon was a police officer, a law

enforcement officer out working with the

public. On the other hand, in this particular

case, Mr. Winters was a Lieutenant working in

corrections in a stat e prison. He has had

day-to-day contact with prisoners, presumably

throughout the course of his 15-year career

with the Mississippi Dep artment of

Corrections. We know that a substantial

num ber of prisoners who began doing time in

the state system eventually filter into the

federal system. And it’s logical to assume

than even though, certainly Mr. Winters’ case

did not receive the notoriety and publicity

connected with the Koon case, nonetheless it

received a great deal of notoriety in ... the

state of Mississippi through the media because

an indictment resulted from the recapture of

an inmate who was maliciously assaulted by Mr.

Winters, who struck the inmate with a firearm

while the inmate was on the back o f a ...

truck being taken, as I recall, perhaps to the

hospital already because he had been struck by

a walkie-talkie by someone earlier while being

transported back to the penitentiary.

Thus, based on the district court’s close consideration of Winters’

susceptibility to abuse in prison, combined with its consideration

of the unique facts of this case and the effect of the mandatory

firearm sentence, the district court departed downward.

The majority rejects this reasoning, stating that “[a] few

stories in a local or state-wide newspaper cannot compare to the

national outrage emanating from the beating [at issue in Koon ], not

to mention the subsequent riots”. Maj. Opn. at 11. The majority’s9 In stating that there is a “relative paucity of publicity in

this c ase”, Maj. Opn. at 14 n.3, the majority erroneously

substitutes its view of the facts for that of the district court.

This is a factual question; the district court’s determination

should be accorded far more deference than the majority is willing

to give. See Threadgill , 1999 WL 212251 at *15 (district court’s

resolution of factual questions must be “accord[ed] substantial

deference”).

- 32 - reasoning effectively writes Ko on out of the law by requiring

national publicity and outrage for the susceptibility to abuse in

prison exception to apply.

I do not read Koon to requi re such extensive publicity. In

Koon

, after discussing the publicity in that case, the Supreme

Court stated that the determination by the district court that the

defendants would be more susceptible to abuse in prison “is just

the sort of determination that must be accorded deference by the

appellate courts”. 518 U.S. at 111. Likewise, in this case, the

district judge’s co nclusion regarding the local and state-wide

publicity should be afforded far more deference than that given by

the majority. 9 As noted, the sentencing judge in this case has

been involved in extensive prison litigation and is in a unique

position to gauge a defendant’s likelihood of abuse in prison.

The majority also cites to United States v. Rybicki , 96 F.3d

754 (4th Cir. 1996), and concludes erroneously that “the [district]

court determined that Winters’ mere status as an officer justified

the departure”. Maj. Opn. at 12. The district court at no time

intimated that Winters deserved a departure solely because of his1 0 Indeed, in addressing downward departures that were granted

as a result of the defendant’s status in a class of offenders

frequently targeted by other prisoners (such as child

pornographers), two other circuits have held that K oon does not

allow a departure. See United States v. Wilke , 156 F.3d 749, 753

(7th Cir. 1998) (“Mere membership in a particular class of

offenders that may be susceptible to abuse in prison does not merit

a departure for vulnerability to abuse in prison”); United States

v. Drew

, 131 F.3d 1269, 1271 (8th Cir. 1997) (child pornography

conviction and naivete of defendant not enough to support downward

departure for vulnerability to abuse); United States v. Kapitzke

, 130 F.3d 820, 822 (8th Cir. 1997) (“Kapitzke’s mere membership in

a class of offenders that may be targeted by other inmates cannot

make his case extraordinary”). The district court did not depart

merely because of Winters’ status as a member of a vulnerable class

in prison (i.e., prison guards), but instead departed based on the

total circumstances surrounding this case.

- 33 - status as a corrections officer. The majority’s reliance on

Rybicki is misplace d; even the majority notes that the Fourth

Circuit in that case was faced with the issue of “whether the

defendant’s status as a la w enforcement officer can, b y itself

,

justify a downward departure”. Maj. Opn. at 12 (emphasis added).

The district judge stated that he was not departing downward

based solely on Winters’ position as a corrections officer. 10

Instead, the judge found that a susceptibility to abuse departure

was warranted because: (1) Winters was a corrections officer with

daily contact with prisoners; (2) he had been a corrections officer

for 15 years, increasing the amount of contact he had with

prisoners; (3) the case received considerable media attention in

Mississi ppi, where Winters was employed and the prisoners would

have known about the incident; (4) prisoners in the state system- 34 -

often enter the federal system; and (5) the crime for which Winters

was convicted stemmed from his beating a prisoner. In short, it is

erroneous for the majority to conclude that the district judge

relied only on Winters’ corrections officer status in determining

that a susceptibility to abuse in prison departure was warranted.

In concluding that “the district court abused its discretion

when it departed downward from the guidel ines simply because

Win ters was a law enforcement officer”, the majority states that

“[t]o allow a departure on the basis that Winters is a law

enforcement officer would thwart the purpose and intent of the

guidelines”; and that “[t]he Sentencing Commission surely

considered the possibility that some defendants con victed of

violating a person’s civil rights under color of law would be law

enforcement officers. As noted earlier, the Commission applied

greater not lesser sentences for such c rimes”. Maj. Opn. at 12

(emphasis in original).

Certainly, the Commission contemplated the sad fact that some

persons violating another’s civil rights would be law enforcement

officers. But, that is n ot the issue at hand. At issue is whether

the Commission contemplated that, for circumstances such as exist

in this case (corrections officer struck captured e scapee with

pistol), that the officer would not only receive a substantial term

of imprisonment (10 years) under the Guidelines for c ivil rights

and obstruction of justice violatio ns, greatly increasing, among1 1 The Government points to a letter from the Bureau of Prisons,

stating that it is equipped to protect prisoners, such as Winters,

that have special security needs. Presumably, the Bureau could

have said the same for the defendants in Koon

. Again, the Supreme

Court affirmed the district court’s susceptibility to abuse

departure in that case, deferring to the judgment of the district

court on such matters.

1 2 See Threadgill

, 1999 WL 212251 (5th Cir. 1999) (affirming

downward departure in money laundering case and deferring to

district court’s factual determinations). See also United States

v. Walters

, 87 F.3d 663 (5th Cir.), c ert. denied

, 117 S. Ct. 498

(1996), where our court deferr ed to the district judge’s

determination that the defendant deserved mitigation in receiving

a sentence for money laundering because he did not receive any of

the stolen funds. Our court affirmed the departure because the

extent of the departure was reasonable and “th e sentencing

guideline for money laundering and its commentary make no mention

of the failure to receive a personal benefit as a mitigating

factor”. Id. at 671-72.

- 35 - other things, his susceptibility to abuse in prison, but would also

receive a consecutive five year sentence on a firearms count (even

though the weapon was instead used as a club), adding to that

susceptibility and otherwise increasing the sentence to

approximately 15 years. 11 Based upon his vast experience and

exercising his broad discretion, the district judge concluded that,

under the totality of the circumstances, this situation was n ot

contemplated; that the Commission never intende d that a person

committing such an offense would serve approximat ely 15 years in

prison; and that, as a result, it was outside the heartland. 12

The district court’s decision is further supported by United

States v. Hemmingson , 157 F.3d 347, 363 (5th Cir. 1998), in which13 A search of 18 U.S.C. § 242 prosecutions appealed to either

our court or the Supreme Court resulting in a published opinion

revealed only one case involving a prison guard accused of beating

a prisoner. In U nited States v. Bigham

, 812 F.2d 943 (5th Cir.

1987), prison guards beat, struck, and burned recaptur ed escaped

prisoners after returning to the prison. There is no indication in

the opinion that any of the guards struck the prisoners with a gun.

The opinion does not indicate the length of the sentence imposed on

any of the defendants.

Given the paucity of the reported cases involving appeals from

18 U.S.C. § 242 convictions for guards beating inmates, it is

unclear how the majority reaches the conclusion that this case is

a typical § 242 case. Indeed, it is because appellate courts see

so few cases on appeal relative to those addressed by the district

courts that we should, and must, give substantial deference to the

district court in determining the typicality of a case.

- 36 - our court upheld a downward departure based on “the unusual facts

of [the] case[,] ... Department of Justice practice, the language

and structure of the guideline, and the absence o f caselaw

supporting the government’s claim to typicality”. Likewise, the

district judge here considered what he, as an experienced judge,

found to be the unusual factors of this case; the Court’s reasoning

in Koon

, holding that atypical susceptibility to abuse in prison

may warrant a downward departure; Winters’ position as a

correctional officer for 15 years, thus placing him in contact with

countless prisoners; and the fact that Winters was convi cted of

beating a pri soner. While the Government asserts that this i s a

typical case (as it did unsuccessfully in Hemmingson ), it cites no

a uthority to show that this is a typical 18 U.S.C. § 242

prosecution. 13Further, the lack of this type of § 242 convictions before

this court undermines the majority’s conclusion that the district

court must be reve rsed because departures should be infrequent.

Given the inf requency with which this court must decide appeals

from these cases, departures such as the one before us can hardly

be described as “frequent”. Moreover, our court lacks jurisdiction

to review a district court’s refusal to depart downward unless its

decision was based on a mistaken belief that it lacked authority to

do so. S ee, e.g., United States v. Valencia-Gonzalez

, 1999 WL

198889, *2 (5th Cir. 1999). This further undermines the majority’s

conclusion that this case is not atypical, as our cou rt can only

review those cases in which a downward departure is granted, not

when it is refused

.

- 37 - Moreover, the district court’s use of the totality of the

circumstances is su pported in a post- K oon case from the Tenth

Circuit. In U

nited States v. Collins

, 122 F.3d 1297, 1302-03 (10th

Cir. 1997), the court began by reviewing the impact of K oon on

appellate review of downward departures. The court noted that K oon

requires its most deferential review for the factual determinations

by the district court. I d. at 1302 (citi ng Koon , 116 S. Ct. at

204 6). Here, as discussed s upra

, part of the legal basis of the

district court’s decision was Winters’ susceptibility to abuse in

prison. Again, the Supreme Court has held that this may be taken

into account in deciding to depart downward. Thus, as also

discussed supra

, the only determinations left for our revie w are

the district j udge’s f actual findings that Winters would be

susceptible to abuse in prison, to which we must grant substantial

deference (stated by Threadgill

, as discussed supra

, to equate with

“accord[ing] those decisions the g r eatest deference”, 1999 WL- 38 -

212251 at *16).

The Collins court also recognized that some factors that would

not, alone, support a departure could be p roperly considered in

conjunction with other factors to warrant a downward departure. In

Collins

, the district court departed downward based on the

defendant’s advanced age and infirmity and on the circums tances

surrounding an almost 10-year-old convict ion that resulted in a

career criminal adjustment. C ollins

, 122 F.3d at 1305. In

affirming, the Tenth Circuit stated that, alth ough offender

characteristics (such as age and infirmity) ordinarily should not

be taken into account, they could be con sidered “ i n combination

with other circumstances of a defendant’s criminal history ”. Id.

(Emphasis added.) Thus, rather than parsing the district court’s

reasoning (as the majority erro neously does here), the Tenth

Circuit considered the reasons for departing downward in the same

manner as the district court presented them

– as part of the total

circumstances that, together

, removed the case from the heartland.

Recently, the Eighth Circuit rendered a decision in a similar

case. In U

nited States v. Colbert

, 1999 WL 177300 (8th Cir. 1999),

the defendant, a police officer, was convicted of violating § 242

after he beat a suspect being held in the local jail. On appeal,

the defendant claimed, among other things, that the district court

erred in refusing to depart downward under Koon because the

defendant, as a police officer, would be susceptible to abuse in1 4 As discussed in note 10, the rule in our court is that we

generally lack jurisdictio n to review a denial of a downward

departure. S ee, e.g., Valen cia-Gonzales , 1999 WL 198889 at *2.

The Eighth Circuit follows the same rule. S ee, e.g., United States

v. Johnson

, 1999 WL 105100, *3 (8th Cir. 1999) (“We have

jurisdiction to review the district court’s discretionary decision

not to depart downward from the Guidelines only if the district

court acted with an unconstitutional motive or erroneously believed

t hat it lacked the authority to consider a particular mitigat ing

factor”) (internal quotation omitted). The defendant in Colbert

did not claim that the district court acted with an

unconstitutional motive or under an erroneous belief that it could

not depart downward. Nevertheless, the court did not address

whether it had the authority to review the refusal-to-departdownward claim. Instead, the court proceeded to the merits and

appeared to review the district court’s decision under an abuse of

discretion standard.

- 39 - prison; because the victim provoked the defendant; and because of

the defendant’s res p onsibilities to his children and fiancee.

The Ei ghth Circuit affirmed the decision n ot to depart. 14

Colbert

, however, involved different facts than those present here:

first, the defendant in Colbert did not assert that there was

publicity surrounding his conviction that would inc rease the

susceptibility to abuse in prison; and second, here, the district

judge did not rely on either family responsibilities, as discussed

infra

, or the conduct of the victim in deciding to depart downward.

Interestingly, although the Colbert court affirmed the

district court’s decision not to depart downward, Colbert supports

affirming the departur e here. In rejecting the defendant’s

contentions, Colbert notes that Koon did not apply because “there

was no extraordinary publicity”. In contrast, here, the district1 5 The majority likens my use of “totality of the circumstances”

to a “mantra”. For this review, well it should be. Stating that

“[a] ‘total’ is nothing more than the sum of its component parts”,

Maj. Opn. at 13, the majority examines only the parts and never the

sum. This is at odds with our court’s approach in T hreadgill and

Hemingson , where we looked at the total circumstances rather than

- 40 - judge found that there was significant publicity. Further, the

Eighth Circuit did not devote much discussion to analyzing the

district court’s decision. Rather, after a very brief discussion

of the holding in Koon

, the court stated: “The District Court felt

these differences justified it in refusing to depart downward. We

see no abuse of discretion in these determinations.” Id. at *2.

Thus, the Eighth Circuit did not parse and dissect the

district court’s reasoning on each of the bases the district court

rejected in denying a downward departure. Rather, the court

followed the district court’s lead in examining the circumstances

o f the case, and, in the end, d eferred to the discretion and

reasoning of the district court

. This is precisely the approach

the majority has erroneously failed to follow here.

Such an approach is warranted, where the district judge

carefully considered a combination of factors that lead it to find

this case atypical. By separating out each of the district court’s

reasons and analyzing each on its own, the majority destroys any

possibility of a district court departing downward when a case

presents numerous factors that, while each alone may not support a

depar ture, make the total case atypical. 1 5 The Sentencingcritically parsing each stated reason.

- 41 - Commission did not intend for departures to be made only in those

case wh ere o ne factor made the case atypical, but not in those

cases where a combination of factors made it so.

Finally, I disagree with th e majority’s conclusion that the

district court considered Winters’ family ties and responsibilities

in departing downward. In so doing, the majority quoted from our

court’s opinion for the first appeal in this case, United States v.

Winters , 105 F.3d 200 (5th Cir. 1997). There, our court stated:

That is not to say that, on remand, there can

be no possibility of a downward departure

based on family ties or responsibilities or

the defendant’s employment. See Koon , 116 S.

Ct. at 2050. (Congress did not grant courts

authority to decide what sentencing

considerations are inappropriate in every

case.) B ut the district court’s reasoning

fails to cite the compelling facts necessary

to sat isfy the very high standard for this

type of departure from the Guidelines

.

105 F.3d at 208 (Emphasis added). The majority quotes the last

sentence of this paragraph, Maj. Opn. at 10, but it is inapplicable

in this appeal; the district judge did not, on resentencing, base

his decision on Winters’ family ties or responsibilities.

I nstead, as discussed, the district judge looked to othe r

facto rs. Because I would accord, as required, substantial

deference to his findings and would affirm the sentence imposed by

him, I respectfully dissent.- 42 -- 43 -