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 sentencing. The government appealed. This court held that the
district court abused its discretion in sentencing Winters, vacated the sentence, and remanded for re-
sentencing. 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,
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 court first
reviewed in United States v. Winters, 105 F.3d 200 (5th 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
Floyd 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 resulting 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
to testify. McKnight was also a Parchman officer who had also participated in the capture and
beating of Floyd. Winters was McKnight’s superior officer. 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.
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§ 1503).
Under the United States Sentencing Guidelines, (USSG or guidelines), a violation of 18
U.S.C. § 924(c) (use of a firearm during a crime) carries a mandatory minimum sentence of sixty
months’ imprisonment. 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 (obstruction 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 guidelines. The court sentenced Winters 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’ distinguished 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 unsupported
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by the record. See id. at 207 (“A single act of aberrant behavior can be an appropriate basis for a
downward departure. . . . 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
Imprisonment on Count 5 [the gun charge] results in an Excessive Term of Imprisonment.” The
government timely 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 departure 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 review
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is still included under the abuse of discretion standard. See 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.” See Winters,
105 F.3d at 204. This is due primarily to the 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. See Winters, 105 F.3d at 205; United States v. Harrington, 82
F.3d 83 (5th Cir. 1996) (court must articulate acceptable reasons for departure on the record and
departure must be reasonable).
The Guidelines Manual explains that it intends each guideline to create a heartland of typical
cases. See Guidelines, ch.1, pt. A. See also Koon, 116 S.Ct. at 2044. A court should not depart
from the guidelines unless it finds that conduct in a particular case “significantly differs from the
1
The dissent chides the majority for failing to give substantial deference to the district court
judge who presided 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 of 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.
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norm,” and takes the case outside this heartland. Id. Put another way, a sentencing court may depart
“if it finds