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No. 94-1664. Argued February 20, 1996-Decided June 13, 1996*

Mter 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 factors: (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.


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. 92-100.

(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,

*Together with No. 94-8842, Powell v. United States, also on certiorari to the same court.cralaw



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.92-96.

(b) Although 18 U. S. C. §3742 established a limited appellate review of sentencing decisions, § 37 42(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 dayto-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 abuseof-discretion standard of review, not de novo review. See, e. g., Cooter & Gell v. Hartmarx Corp., 496 U. S. 384,403. Pp. 96-100.

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. 100-114.cralaw

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