United States v. Harris

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-60465

UNITED STATES OF AMERICA,

Plaintiff-Appellee-Cross-Appellant,

versus

CHARLES HARRIS,

Defendant-Appellant-Cross-Appellee.

Appeals from the United States District Court
for the Northern District of Mississippi

June 11, 2002

Before GARWOOD and WIENER, Circuit Judges and VANCE,1 District
Judge.

GARWOOD, Circuit Judge:

Defendant-Appellant Charles Harris (Harris) appeals his

conviction under 18 U.S.C. § 242. The United States of America

(the Government) cross-appeals the sentence imposed by the trial

1
District Judge of the Eastern District of Louisiana, sitting by
designation.
court. Harris was convicted in a jury trial of using excessive

force during the course of an arrest. The sentencing court imposed

a sentence including imprisonment for thirteen months, departing

downward from the sentencing range established by the United States

Sentencing Guidelines (the Guidelines). We affirm the conviction

and the district court’s decision to depart downward. This opinion

addresses those two issues. For the reasons stated in the separate

opinion of Judge Wiener, Judge Vance concurring, a majority of this

panel concludes that the extent of the departure has not been

adequately justified, and accordingly this court vacates and

remands the sentence.

Facts and Proceedings Below

On May 9, 1998, Harris, Chief of Police for the Town of

Golden, Mississippi, arrested Geraldo Lopez (Lopez) for public

drunkenness. Harris was indicted for using excessive force during

the course of the arrest by “willfully” striking Lopez “with a

police baton, a dangerous weapon, . . . resulting in bodily

injury” to Lopez, in violation of 18 U.S.C. § 242.2 On February

2
18 U.S.C. § 242 provides:

“Whoever, under color of any law, statute,
ordinance, regulation, or custom, willfully
subjects any person in any State, Territory,
Commonwealth, Possession, or District to the
deprivation of any rights, privileges, or
immunities secured or protected by the Constitution
or laws of the United States, or to different
punishments, pains, or penalties, on account of
such person being an alien, or by reason of his

2
15, 2000, after a two-day trial, the jury rendered a guilty

verdict.

On the evening of the arrest, Lopez, a Mexican citizen, was

attending a party at a residence in Golden. Harris was the only

Golden officer on duty that night. Responding to a complaint

from neighbors, Harris went to the house where the party was in

progress and requested that the partygoers quiet down. They said

that they would and Harris left. Shortly thereafter, the party

got loud again and Harris returned to ask the partygoers to quiet

down a second time. After his second visit, Harris placed a

radio call to the Tishomingo County Sheriff’s Department

requesting backup.3 Four Sheriff’s Department officers arrived

in response to Harris’s call for assistance. The noise

continued. Harris and three of the officers – Officers Flynt,

color, or race, than are prescribed for the
punishment of citizens, shall be fined under this
title or imprisoned not more than one year, or
both; and if bodily injury results from the acts
committed in violation of this section or if such
acts include the use, attempted use, or threatened
use of a dangerous weapon, explosives, or fire,
shall be fined under this title or imprisoned not
more than ten years, or both; and if death results
from the acts committed in violation of this
section or if such acts include kidnapping or an
attempt to kidnap, aggravated sexual abuse, or an
attempt to commit aggravated sexual abuse, or an
attempt to kill, shall be fined under this title,
or imprisoned for any term of years or for life, or
both, or may be sentenced to death.”
3
Golden is in Tishomingo County and it was regular practice
for Harris to request assistance from the Sheriff’s Department when
he needed it.

3
Trimm, and Stacy – approached the house and warned the revelers

that arrests would be made if the party continued to be too

noisy. The partygoers again promised to be quiet. Harris and

the other officers left the house and went to a parking lot about

a block away. About five minutes later, the officers heard the

noise from the party resume and they returned to the house and

began making arrests.

Harris arrested Lopez. The precise sequence of events from

that point onward are somewhat in dispute. The testimony

indicates that Lopez initially submitted to being handcuffed

behind his back and to being placed in the back seat of Harris’s

patrol car.4 The patrol car had a plexiglass barrier, reinforced

with metal brackets and wire mesh, that separated the back seat

from the front seat passenger compartment. Harris closed the car

door, left Lopez alone in the back seat, and began walking back

toward the house. In his trial testimony, Lopez conceded that he

was drunk and that he began to thrash about in the back seat.

Officers Flynt and Stacy testified that Lopez began kicking at

the windows of the car. The trial testimony further established

that, at this point, Harris returned to the car and opened the

door near where Lopez’s feet were. Lopez continued to kick at

Harris. Harris told Lopez to stop kicking him and Harris struck

Lopez in the shins with a police baton at least once.

4
Lopez eventually pleaded guilty to a charge of resisting arrest.

4
 After Harris closed the car door again, Lopez resumed

thrashing about the car and started banging his head against the

plexiglass divider. Harris opened the car door again and,

according to the testimony, again began to strike Lopez with the

baton. Gary Pounders, a neighbor and the only witness called by

the defense, partially corroborated the testimony of Government

witnesses.5 Officer Flynt testified that Harris landed blows on

Lopez’s face and head. Lopez testified that Harris hit him on

the left temple. FBI agent Summerlin testified that Harris,

during a non-custodial interview regarding the incident, had

admitted hitting Lopez in the head. Officer Stacy testified that

he stopped Harris from hitting Lopez because Harris “had lost his

composure as a law enforcement officer.” Officer Trimm testified

that he approached the car and attempted to reach in and stop

Lopez from banging his head. Trimm testified that he never saw

Harris strike Lopez but that Lopez had blood on his head when

Trimm approached the car. Lopez kicked Trimm in the groin and

Trimm sprayed Lopez with pepper spray in an attempt to subdue

him. Lopez continued to thrash violently. Finally, a woman who

had attended the party was able to calm Lopez down.

It was determined that Lopez should be taken to the

hospital because he was bleeding from the head. Ambulance

5
It appears from Pounders’s testimony that he only witnessed the
second of the two occasions when Harris opened the car door. Pounders
testified that he saw Harris strike Lopez once on the legs and that he
never saw Harris strike Lopez on the head.

5
operator and police officer Mike Kemp arrived on the scene.

Officer Kemp testified that Harris told him that he had “knocked

the s-h-i-t” out of Lopez. Kemp refused to transport Lopez in

his ambulance unless an officer accompanied Lopez. Harris opted

to drive Lopez to the hospital himself.

Registered Nurse Cummings was an emergency room nurse who

treated Lopez at the hospital. Cummings testified that Lopez

presented with two separate injuries on his head, a laceration

and a hematoma. She further testified that she could not say

whether or not these injuries could have been caused by a blunt

instrument like a police baton. X-rays and a CT scan of Lopez’s

head were negative. His laceration was sutured, he was given a

tetanus shot and was discharged just under two hours after his

arrival at the hospital. There is no evidence he subsequently

sought any further medical attention.

The district court held a sentencing hearing on June 14,

2000. The Presentence Investigation Report calculated the total

offense level (including enhancements) to be 29 and a criminal

history category of I. Under the Guidelines, these figures

provided a sentencing range of 87 to 108 months’ imprisonment.

The sentencing court found that Lopez’s wrongful conduct had

significantly contributed to provoking the offense behavior and

that a downward departure was warranted pursuant to U.S.S.G. §

5K2.10. The court sentenced Harris to a term of thirteen months

6
in prison, two years’ supervised release and a $5,000 fine.

Harris appeals contending that the evidence is insufficient

to support his conviction. The Government cross-appeals,

contending that the district court erred in determining that

downward departure was justified and that even if departure were

warranted the extent thereof here granted was unreasonably large.

Discussion

I. Standard of Review

We review the jury’s finding of guilt under a standard that

is highly deferential to the verdict:

“The standard of review for determining whether there
was sufficient evidence to convict a defendant is
whether the evidence, when reviewed in the light most
favorable to the government with all reasonable
inferences and credibility choices made in support of a
conviction, allows a rational fact finder to find every
element of the offense beyond a reasonable doubt. The
evidence is viewed in the light most favorable to the
verdict, accepting all credibility choices and
reasonable inferences made by the trier of fact which
tend to support the verdict.” United States v. Asibor,
109 F.3d 1023, 1030 (5th Cir. 1997) (internal citations
omitted).

We review the sentencing court’s decision to depart downward

from the Guidelines under a deferential abuse of discretion

standard. Koon v. United States, 116 S.Ct. 2035, 2046 (1996).

The district court’s interpretation of the Guidelines is a

question of law that this court reviews de novo. United States

v. Clayton, 172 F.3d 347, 353 (5th Cir. 1999). The sentencing

7
court’s factual findings are reviewed for clear error and this

court gives due deference to the sentencing court’s application

of the Guidelines to the facts. 18 U.S.C. § 3742(e)(4).

II. Sufficiency of the Evidence

Harris argues that the evidence was insufficient for the

jury to find him guilty of using excessive force in violation of

18 U.S.C. § 242. Both here and in the trial court, the defense’s

argument has centered on the evidence pertaining to Lopez’s

injuries. Harris contends that the Government did not prove that

the laceration or the hematoma was caused by Harris’s striking

Lopez with a baton rather than by Lopez’s striking his own head

against parts of the car. It is not entirely clear whether this

is an argument that the Government did not prove that Harris

actually hit Lopez in the head or an argument that the Government

did not prove that Harris caused any sufficient injury to Lopez.

In either case, the argument is ultimately unavailing and we

affirm the jury’s finding of guilt.

Two witnesses, Lopez and Officer Flynt, testified that they

observed Harris strike Lopez in the head. A third witness, Agent

Summerlin, testified that Harris admitted striking Lopez in the

head. These pieces of direct evidence were corroborated by the

circumstantial evidence provided by Officers Trimm and Stacy;

Trimm and Stacy each testified that they observed Harris moving

about in the car and then observed Lopez bleeding from the head.

8
Drawing all inferences from this evidence in the light most

favorable to the verdict, a reasonable jury could find that the

Government had proven beyond a reasonable doubt that Harris

struck Lopez in the head with the baton.

To find that Harris used excessive force in violation of

Lopez’s rights under the Fourth Amendment, it was not necessary

for the jury to find that Lopez had suffered “significant

injury.” United States v. Sanchez, 74 F.3d 562, 565 (5th

Cir.1996). Officers Flynt and Trimm both testified that, in

their experience, hitting Lopez in the head with the baton would

have been excessive under the circumstances. The defense’s own

witness, Pounders, expressed the same opinion based on his

military training in the use of restraining force. Officer Stacy

testified that Harris could have better controlled Lopez by

waiting until the other officers came over to help Harris

restrain him. However, the particular crime charged in the

indictment required “bodily injury” or “the use, attempted use,

or threatened use of a dangerous weapon.” 18 U.S.C. § 242

(providing for a maximum term of imprisonment of ten years if

either of these factors is present). The trial court’s

instructions to the jury correctly described this element of the

crime. It is undisputed that Harris used a police baton during

the incident and the jury could rationally find that this was a

“dangerous weapon.” See Koon, 116 S.Ct. at 2048 (noting that the

9
district court had regarded a police baton as a “dangerous

weapon” for purposes of applying the Sentencing Guidelines); cf.

United States v. Estrada-Fernandez, 150 F.3d 491, 497 (5th

Cir.1998) (determination whether an object is a “dangerous

weapon” is a jury question and relevant factors include the

circumstances under which the object is used); United States v.

Park, 988 F.2d 107, 109-110 (11th Cir.), cert. denied, 114 S.Ct.

226 (1993) (metal pipe swung in a threatening manner found to be

a “dangerous weapon.”).

Because there was sufficient evidence that Harris used a

“dangerous weapon” in committing the assault, we can affirm this

conviction under section 242 without deciding whether the

Government proved that Harris had caused “bodily injury” to Lopez

or the scope of “bodily injury” as used in section 242.6 The

6
Arguably, the trial testimony gives equal or nearly equal
circumstantial support to the theory that Lopez’s head laceration and
hematoma were caused by Lopez’s banging his head against surfaces in the
car rather than by Harris’s striking Lopez. Cf. United States v. Lopez,
74 F.3d 575, 577 (5th Cir.1996) (conviction must be reversed if evidence
“gives equal or nearly equal circumstantial support to a theory of
guilt and a theory of innocence.”); United States v. Reveles, 190 F.3d
678, 686 (5th Cir. 1999) (same). We also note, however, that the
instructions to the jury, as to which Harris has raised no complaint on
appeal, state in relevant part:
“The Government must also prove that the defendant’s acts
either resulted in some bodily injury or involved the use of
a dangerous weapon. In order to prove that the defendant’s
acts resulted in bodily injury, the Government need not prove
that the defendant intended to cause bodily injury to the
victim, but only to prove that bodily injury, no matter how
slight, did result from the defendant’s alleged assault on
Gerardo [sic] Lopez. Bodily injury would include a cut or
bruise or physical pain.” (emphasis added).

10
jury was presented with sufficient evidence to conclude that

Harris struck Lopez in the head with a dangerous weapon, the

police baton, and that this action constituted excessive force

under the circumstances. These elements are sufficient to

sustain Harris’s conviction under Section 242.

III. The Decision to Depart Downward

The Government argues that the district court’s downward

departure from the Sentencing Guidelines was unauthorized and

that, if a departure were authorized, a departure down to

thirteen months’ imprisonment was unreasonably large.

We review a district court’s departure from the range

established by the Guidelines for abuse of discretion. Koon v.

United States, 116 S.Ct. 2035, 2046-47 (1996). The district

court’s decision is accorded substantial deference because it is

a fact intensive assessment and the district court’s findings of

fact are reviewed for clear error. Id. However, the district

court’s interpretation of the Guidelines is a question of law,

reviewed de novo; a district court abuses its discretion by

definition when it makes an error of law. Id. at 2047.

Under this definition, the evidence was clearly sufficient to show
bodily injury. We are satisfied that if there were any error in this
aspect of the instructions (a matter we do not decide) it was not clear
or plain error. See United States v. Myers, 972 F.2d 1566, 1572 (11th
Cir.1992), cert. denied, 113 S.Ct. 1813 (1993) (approving instructions
that “bodily injury” under section 242 “means any injury to the body,
no matter how temporary . . . also includes physical pain as well as any
. . . abrasion”).

11
Determining whether a factor is permissible to take into account

when considering a departure is one of these questions of law.

Id. A district court abuses its discretion if it departs on the

basis of legally unacceptable reasons or if the degree of the

departure is unreasonable. United States v. Nevels, 160 F. 3d

226, 230 (5th Cir. 1998).

We now address the district court’s decision that a downward

departure was warranted. We distinguish this inquiry from the

separate question of whether the extent of the departure was

reasonable. In reviewing the decision to depart downward, the

judges of this panel are not called upon to decide whether, had

we presided at trial and sentencing, we would have drawn the same

inferences from the evidence or made the same factual findings as

did the district court. All we are called upon to decide is

whether that court’s view of the evidence and its findings are

clearly erroneous. Nor are we called upon to decide whether,

accepting the district court’s findings, we would have exercised

our discretion to depart from the guideline range. All we are

called upon to decide is whether the district court’s decision to

depart was on a legally invalid basis and whether that decision

was an abuse of the court’s discretion.

The Government picks snippets from the court’s comments

during the sentencing hearing to argue that the district court’s

departure decision was influenced by possibly improper

12
considerations. After reviewing the transcript from the

sentencing hearing and the court’s written Statement of Reasons

for departing, we are satisfied that the district court made it

clear that it relied on U.S. Sentencing Guidelines Manual §

5K2.10 in deciding to depart downward.7 Therefore, we will apply

7
The district court’s written Statement of Reasons reads, in
relevant part:
“The victim in the instant case was not compliant with
arresting officers, including the defendant. It is the
Court’s opinion the victim in the instant case was extremely
persistent in his wrongful conduct which significantly
provoked the defendant’s excessive use of force against the
victim. Due to the aforementioned factors, it is the Court’s
opinion the victim’s wrongful conduct contributed
significantly to provoking the offense behavior; therefore,
a downward departure is made pursuant to U.S.S.G. § 5K2.10.”
The district court’s oral remarks at sentencing included the
following:
“. . . pursuant to section 5(k)2.10 the Court finds that the
victim’s wrongful conduct contributed significantly to
provoking the offense behavior, and under that section, the
sentence may be reduced below the guideline range to reflect
the nature and circumstances of the offense.
In this particular case, the record shows that Mr.
Harris , on two occasions, after receiving calls from
neighbors in the community asking for him to come up and
restore order to the neighborhood as a result of this alleged
– of this victim and his friends’ loud and raucous parties
at night and after going and asking the victim and his
friends on two occasions to be quiet, they refused to follow
his directions. So then he called for other persons, other
law enforcement officers, to come in and help him.
Mr. Harris and the other law enforcement officers went
to the house where the victim and his friends were drinking
and playing loud music late at night out on the carport and
asked them to be quiet and they refused again. So that was
the third trip that had been made to this house asking for
quiet.
After they refused to be quiet on the third trip, the
officers went back again the fourth time and arrested the
victim and he was detained by the defendant and was placed
in the back of the patrol car.
It was obvious from the testimony that the victim was

13
the review standard described above to the district court’s

interpretation and application of Section 5K2.10.

Section 5K2.10 is a policy statement explaining that a

downward departure is permissible “[i]f the victim’s wrongful

conduct contributed significantly to provoking the offense

behavior.” U.S. Sentencing Guidelines Manual § 5K2.10 (1998).

The Government argues that Section 5K2.10 contemplates only

victim misconduct that poses actual, or reasonably perceived,

physical danger to the defendant. We think this interpretation

goes too far afield of the plain language of Section 5K2.10 to be

tenable. If the Sentencing Commission had intended such a narrow

construction, it could have framed Section 5K2.10 in terms

related to the doctrines of sudden emergency, imminent peril,

intoxicated, was very intoxicated; that he was irate and he
started trying to kick out the inside of the car, kicking at
the back seat, the windows and the seats. The testimony
revealed that when this was going on, Mr. Harris reached in
and hit him on the shins trying to stop that, and then after
that happened, the door was shut, the victim started slamming
his head against the plexiglass divider between the front
seat and the back seat.
One officer had gone in and sprayed him with pepper
spray, and pepper spray in a closed car did not stop the
victim from banging around in the back of the car. All
attempts to stop this tearing up the back of the car were
unsuccessful, and then Mr. Harris did, at that time, commit
the crime with which he stands convicted, he hit him in the
head with a police baton. . . . it was a backhand blow that
did – was a result of disruptive behavior by the victim. It
was obviously provoked.”
The Presentence Report states, inter alia, “it appears the victim’s
continued disruptive behavior contributed significantly to provoking the
offense behavior.”

14
self-defense or the like, rather than in the broader terms of

“wrongful conduct . . . . provoking the offense behavior.”

U.S.S.G. § 5K2.10; cf. Blankenship v. United States, 159 F.3d

336, 339 (8th Cir. 1998), cert. denied, 119 S.Ct. 844 (1999)

(“[A] defendant need not prove the elements of a justification

defense in order to obtain a downward departure on the basis of

the victim’s wrongful conduct . . . .”). In Koon, the Supreme

Court sustained the district court’s section 5K2.10 downward

departure despite its unassailed finding that at the time of the

offense behavior the victim “was no longer resisting arrest. He

posed no objective threat, and the defendants had no reasonable

perception of danger.” Id. at 2048. Moreover, “the offense

behavior” is an important phrase; it signifies that there is a

relationship between the type of offense behavior and the type of

victim misconduct that would “contribute[] significantly to

provoking” it. Victim misconduct posing a physical danger to the

defendant may be necessary to significantly provoke some types of

offense behavior, but less serious victim misconduct may be

sufficient to provoke less violent offense behavior. Section

5K2.10 itself contains the following explanation: “There may . .

. be unusual circumstances in which substantial victim misconduct

would warrant a reduced penalty in the case of a non-violent

offense. For example, an extended course of provocation and

harassment might lead a defendant to steal or destroy property in

15
retaliation.” We note that this passage was cited as instructive

by the Supreme Court in Koon. Id. 116 S.Ct. at 2049. There is

no necessary connection between offense behavior consisting of a

property crime and a requirement that the victim’s misconduct

pose a physical danger to the defendant. Nor do “provocation and

harassment” necessarily imply any physical danger.

Section 5K2.10 does list the following factors that a court

should consider “[i]n deciding the extent of a sentence

reduction” (emphasis added):

“(a) the size and strength of the victim, or other
relevant physical characteristics, in comparison with
those of the defendant;

(b) the persistence of the victim’s conduct and any
efforts by the defendant to prevent confrontation;

(c) the danger reasonably perceived by the defendant,
including the victim’s reputation for violence;

(d) the danger actually presented to the defendant by
the victim; and

(e) any other relevant conduct by the victim that
substantially contributed to the danger presented.”

Other than (b), these factors do relate to physical danger and

the Government references them in support of its interpretation

of Section 5K2.10. In response, we note first that these are

factors to be considered in determining the extent of a downward

departure rather than whether there should be a downward

departure, which is the question we address here. We next

observe that these factors will not always be relevant to every

16
type of offense behavior, including some offenses expressly

contemplated by Section 5K2.10. As discussed above, Section

5K2.10 explicitly refers to property crimes as a type of offense

behavior that a victim might provoke by his misconduct. The

misconduct plainly need not be of a kind which poses a threat of

physical injury to the defendant. In many cases where the

offense behavior is theft or vandalism, such factors as the size

and strength of the victim will have little or no relevance.

Taken as a whole, Section 5K2.10 evinces a concern that the

offense behavior be not excessively disproportionate to the

provocation. See Blankenship, 159 F.3d at 339.

The cases from our sister circuits that the Government cites

in support of its interpretation are in line with our

construction. The defendant in United States v. Paster, 173 F.3d

206 (3d Cir.1999), had been convicted of murdering his unfaithful

wife, and the Court of Appeals affirmed the district court’s

refusal to depart under Section 5K2.10. The defendant in United

States v. Shortt, 919 F.2d 1325 (8th Cir.1990), had been

convicted of making and possessing a pipe bomb, with which he had

apparently been planning to kill his wife’s lover, and the Court

of Appeals, pre-Koon, reversed the Section 5K2.10 departure. In

these cases the offense behavior involved the intentional or

planned destruction of human life; those courts, understandably,

regarded the threat of physical danger as a necessary component

17
for the victim’s misconduct to sufficiently mitigate this type of

offense conduct. See Paster, 173 F.3d at 212 (“Paster’s response

was grossly disproportionate to any provocation.”); Shortt, 919

F.2d at 1328 (“While the District Court is surely correct that

‘there’s hardly any greater provocation than to have someone

having an affair with your spouse[,]’ that is not the end of the

matter. The further question remains: provocation for what?”

(internal citation omitted)).

The offense behavior here involved Harris’s striking Lopez

in the head with the baton.8 The district court’s commentary

during the sentencing hearing demonstrates that it was engaging

in the proportionality analysis necessary to apply Section

5K2.10. The court’s factual findings that Harris hit Lopez

“back-handed”, using his forearm, and that Lopez suffered little

physical damage are adequately supported by the testimony and are

not clearly erroneous.9 It was appropriate for the court to take

8
The Government’s position throughout has consistently been that
it was the blow or blows to Lopez’s head that crossed the line from a
lawful use of force to an unlawful one. The Government does not
dispute that Lopez was lawfully arrested. When examining the officers
and Pounders at trial, the prosecutors elicited testimony to the effect
that striking Lopez in the head was an unreasonable use of force under
the circumstances, although striking Lopez in the shins or legs probably
was not. Additionally, the Government has laid great stress on the
laceration and hematoma present on Lopez’s head and has not identified
physical injuries on any other part of Lopez’s body as being relevant
to the prosecution.
9
The district court stated at sentencing “he hit him back-handed.
He didn’t raise the baton over his head and come down on him, but he
reached into the car and hit him with it back-handed. Back-handed.

18
these factors into account when doing the proportionality

analysis; they are relevant to determining the severity of the

blows Harris struck. A certain degree of victim misconduct may

be sufficient to provoke less severe blows but insufficient to

provoke more severe blows. In Koon, the victim, Rodney King, was

beaten severely, but he had also engaged in severe misconduct and

the sentencing court did not abuse its discretion in departing

downward pursuant to Section 5K2.10. Koon, 116 S.Ct. at 2049 -

50. In the instant case, it was necessary for the district court

to evaluate the severity of Harris’s offense behavior in order to

determine whether Lopez’s misconduct significantly contributed to

provoking that behavior.

Koon further teaches that the district court did not abuse

its discretion by taking into account the entire course of

Lopez’s misconduct. In that case, the district court applied

Section 5K2.10 after finding that, although the victim was no

longer resisting arrest or posing any danger at the time the

defendants’ actions crossed the line to unlawful force, the

victim’s course of misconduct, which included driving while

intoxicated, fleeing the police, and initially resisting arrest,

was provocative. Koon, 116 S.Ct. at 2048. In this case there

Because as I understand, that would be using your forearm” and “there
was not very much damage done to this victim at all.”

19
was a similarly extended course of provocative misconduct.10

Lopez admits that he became intoxicated during the course of his

participation in a raucous party. Harris visited the house where

the party was in progress three times -- twice by himself, once

accompanied by other officers -- to warn the partygoers to be

quiet before returning the fourth time to begin making arrests.11

Every eyewitness, including Lopez, agrees that Lopez persisted in

thrashing around violently in the car, threatening to damage both

the vehicle and himself. Lopez kicked Harris and Officer Trimm

when they attempted to subdue him and he persisted even after

Trimm sprayed him with pepper spray.12 Although there was

10
We do not, in any way, equate the severity of Lopez’s misconduct
with that of the victim in Koon. We reiterate that Section 5K2.10 is
concerned with proportionality. Rodney King’s misconduct was severe and
created a serious risk of injury to others. His attackers beat him
severely and repeatedly, leaving him with multiple fractures and
numerous contusions. Koon, 116 S.Ct. at 2041. In the instant case,
Lopez’s misconduct was far less severe and so was his victimization.
The district court, in a finding supported by the medical evidence,
inferred that Lopez was not severely injured by Harris’s blows.
11
There is no indication in the record – and there was no finding
by the district court – that Lopez, as compared to other attendees, was
particularly culpable for the disruptive nature of the party. Lopez was
not on trial here and this sentencing hearing could have no effect on
his rights. Part of the focus in the Section 5K2.10 inquiry must be on
the defendant’s state of mind. By the plain language of the section,
the defendant must have actually been provoked. From the fact that
Harris had been required to visit the house three times asking for
quiet, the district court could reasonably infer that Harris was in an
agitated state of mind, and more susceptible to provocation, by the time
he arrested Lopez.
12
It appears from the testimony that Trimm did not spray Lopez and
Lopez did not kick Trimm until after Harris had hit Lopez in the head.
If this was the case, then it cannot be said that Lopez’s kicking Trimm

20
testimony that Lopez initially submitted to being arrested and

handcuffed, Lopez pleaded guilty to resisting arrest and the

district court was entitled to take this fact into account in

evaluating Lopez’s misconduct.

The district court also took note of Harris’s unblemished

record as a police officer. A defendant’s “[e]mployment record

is not ordinarily relevant in determining whether a sentence

should be outside the applicable guideline range.” U.S.S.G. §

5H1.5 (emphasis added). But, in this case, Harris’s record was

relevant to whether Lopez provoked the offense behavior. A

record of excessive force complaints might indicate that an

officer is inclined to use unlawful force absent any provocation;

an unblemished record may indicate the opposite inclination. The

district court did not abuse its discretion by taking this factor

into account. Cf. Koon, 116 S.Ct. at 2046 - 47 (district court’s

special vantage point informs its refined assessment of whether

the case before it is unusual).

provoked Harris’s bad act. However, the testimony did not make the
precise sequence of events entirely clear. Trimm testified that he
never saw Harris hit Lopez but that Lopez was bleeding from the head
before Trimm sprayed him. Pounders testified that Trimm stepped in
between Lopez and Harris after Harris had struck one blow toward
Lopez’s feet and while Lopez was still kicking in Harris’s direction.
Officer Stacy testified that he never saw Trimm spray Lopez, but that,
when Stacy intervened to stop Harris’s assault on Lopez, Stacy could
smell that Lopez had already been “maced.” Even if the pepper spray and
Lopez’s kicking Trimm did not occur until after Harris struck Lopez in
the head, Lopez’s persistence after being sprayed with pepper spray may
be indicative of how violently out of control he was during the course
of the incident.

21
 In light of the factors described above, the district court

found that this case was different from the typical case

contemplated by the Sentencing Guidelines, in which the victim

had done nothing to provoke an officer’s use of unlawful force.

The Supreme Court has explained why such a finding was not an

abuse of the district court’s discretion:

“The [Koon] Court of Appeals misinterpreted the
heartland of § 2H1.4 by concentrating on whether King's
misconduct made this an unusual case of excessive
force. If § 2H1.4 covered punishment only for excessive
force cases, it might well be a close question whether
victim misconduct of this kind would be sufficient to
take the case out of the heartland. Section 2H1.4 is
not so designed, however. It incorporates the Guideline
for the underlying offense, here § 2A2.2 for aggravated
assault, and thus creates a Guideline range and a
heartland for aggravated assault committed under color
of law. As the District Court was correct to point out,
the same Guideline range applies both to a Government
official who assaults a citizen without provocation as
well as instances like this where what begins as
legitimate force becomes excessive. The District Court
did not abuse its discretion in differentiating between
the classes of cases, nor did it do so in concluding
that unprovoked assaults constitute the relevant
heartland. Victim misconduct is an encouraged ground
for departure. A district court, without question,
would have had discretion to conclude that victim
misconduct could take an aggravated assault case
outside the heartland of § 2A2.2.” Koon, 116 at 2049 -
50.

In sum, the record does not establish that the district

court based its decision that a downward departure was warranted

on impermissible factors or that it abused its discretion in

deciding to depart downward pursuant to Section 5K2.10.

IV. Extent of Departure

22
 For the reasons stated in the separate opinion of Judge

Wiener, concurred in by Judge Vance, a majority of the panel

concludes that the extent of the departure has not been

adequately justified on the record as reasonable, and that

accordingly the sentence must be vacated and the cause remanded

for resentencing.

Conclusion

Because there was sufficient evidence to convict Harris, we

AFFIRM the conviction. Because the district court did not err

in law or abuse its discretion in deciding to depart downward, we

AFFIRM the district court’s decision to depart. However, for the

reasons stated in the separate opinion by Judge Wiener, concurred

in by Judge Vance, this court VACATES the sentence imposed by the

district court and REMANDS the case for resentencing.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

ENDRECORD

23
WIENER, Circuit Judge, joined by VANCE, District Judge, specially

concurring:

Having concluded as a unanimous panel that the record

contains sufficient evidence to support Harris’s conviction and

that the district court’s decision to depart downwardly evinced

no abuse of discretion, we now address the extent of the court’s

downward departure. Based on (1) the several factors that the

district court should have considered but did not, (2) the

pervasiveness of overt ethnic animus displayed by Defendant-

Appellant Harris before, during, and after his assault on Lopez,

and (3) other facts included in the PSR, Judge Vance and I

conclude —— and Judge Garwood disagrees, as evidenced by his

dissent that follows —— that the district court abused its

discretion when it departed downwardly to such an extent that the

sentence it imposed equaled only 15 % of the Guidelines minimum

for the offense of conviction.

I. ANALYSIS

A. Standard of Review

When it comes to downward departures at sentencing, we

afford broad discretion to the district court.13 No abuse of

that discretion exists “if the judge provides acceptable reasons

for the [downward] departure and the degree of departure is

13
Koon v. United States, 518 U.S. 81 (1996); United States v.
Alvarez, 51 F.3d 36, 41 (5th Cir. 1995).
reasonable.”14 We reiterate that we find no abuse of discretion

in the court’s decision to depart downwardly; our concern here

is solely with the reasonableness of the extent of a departure

that we perceive to have resulted from a sentencing court’s

analysis that was neither complete nor balanced.

B. Factual Background

We adopt the version of the facts included in Judge

Garwood’s thoughtful opinion, but we supplement it with the

crucial testimony regarding Harris’s ethnic animus. True,

discriminatory animus was not alleged in the indictment, so it

cannot be said that his conviction resulted from a jury finding

beyond a reasonable doubt that Harris’s actions were motivated by

such animus. Nevertheless, his ethnically derogatory assertions,

of which there is a plethora of evidence in the record and the

PSR,15 remain relevant to his sentencing. Even though it was not

charged or proved that his actions were driven by ethnic animus,

no picture of this case is complete without inclusion of Harris’s

14
United States v. Nevels, 160 F.3d 226, 229-30 (5th Cir. 1998)
(emphasis added).
15
As detailed by the Probation Officer in the PSR, Harris
repeatedly made derogatory comments regarding Mexicans before, during,
and after the incident leading to his arrest. For example, (1) when
calling for backup, he advised the dispatcher to tell the deputies to
bring their nightsticks because a “bunch of wetbacks” were having a
party; (2) Harris told the EMT Officer on arrival that he (Harris) had
knocked the “shit” out of Lopez and that Mexicans were not going to take
over the town; (3) during an investigative interview with the FBI after
the incident, Harris told the FBI that Mexicans did not have the same
rights as “real Americans” and asked the FBI to help get the “damn”
Mexicans out of his town.

25
extensive, ethnically bigoted statements. More to our point,

despite Harris’s anti-Mexican epithets being well documented in

the PSR and in the record, the district court did not so much as

mention these statements or this factor in its departure

explication.

As noted in Judge Garwood’s opinion for our panel, the

sequence of facts is not completely free from ambiguity because

differing versions appear in the PSR, one detailed and the other

abbreviated. In its detailed recitation of the Offense Conduct,

the PSR lists the facts in the sequence the panel credits; in its

abbreviated summary of the facts, in the section entitled

“Factors That May Warrant Departure,” however, the PSR lists

(mistakenly, perhaps out of haste) the facts in a slightly

different sequence. We continue to employ the sequence set forth

in Judge Garwood’s opinion, noting in particular that Officer

Trimm did not pepper spray Lopez, and that Lopez did not kick

Officer Trimm, until after Harris had clubbed Lopez in the

head.16

During sentencing, the district court apparently failed to

recognize this internal inconsistency in the PSR and relied on

the summarized sequence of facts. Unfortunately, this resulted

in the court’s short-circuiting of the government’s attempt to

16
See Judge Garwood’s opinion, Facts and Proceedings and note 12.

26
object to that version.17 Again, it is the more complete and

accurate version of the facts that appears in the lengthy,

detailed portion of the PSR and in Judge Garwood’s opinion.

C. Reasonableness of the Extent of Departure

We do not take the position that the extent of the downward

departure is per se unreasonable. At the very least, however, a

departure resulting in an 85%, 16 level reduction below the

applicable guideline range has to be a red flag to any reviewing

court, provoking at a minimum an inquiry into the reasonableness

of so extensive a departure. And, when all the circumstances and

facts in the record of this case are exposed to the sunlight, the

17
During the sentencing hearing, in response to the court’s query
regarding the PSR, the government answered “[t]here are two
misstatements arising in the presentence report, one particularly goes
to victim provocation. Those have come out since our earlier day, as
we received the trial transcipt...[referring the fact the Trimm was
kicked after Harris’s actions]...That wouldn’t constitute provocation
for Mr. Harris’s action.” That answer prompted the following colloquy
with the court:
Court: ...Did you file any objection to the factual statements
contained in the presentence report 10 days before trial, before
sentencing?
[Government]: No, Your Honor. Those arose when we received
the trial transcript and had the opportunity to - -
Court: So those objections are untimely. There are no
objections to the factual statements filed with the Court in
accordance with the Court’s rules - -
Government: Excuse me, Your Honor. We did actually state the
objection — we did note the problem with Mr. Trimm’s testimony in
our papers.
Court: Well, did you do it in the form of an objection?
Government: No, Your Honor.
....
Court: There are no objections filed to the factual
statements contained in the presentence investigative report
so the Court adopts those as its findings of fact.

27
degree of the district court’s departure, based as it was almost

entirely on victim provocation, is undeniably disproportionate to

that provocation.

During sentencing, the district court stated:

One of the elements that the guidelines called to be
considered in deciding the extent of a sentence
reduction under 5(k) [sic] 2.10 is the persistence of
the victim’s conduct and any efforts by the defendant
to prevent confrontation. Well, if there’s ever been a
persistent victim who egged a situation on and
continued, after being given every opportunity to stop
his provoking conduct, then this victim had.

The court is only partially correct: The persistence of the

victim’s conduct is a factor to be considered under 5K2.10. It

certainly is not, however, the only factor to consider under

5K2.10. In relevant part, 5K2.10 reads:

In deciding the extent of a sentence reduction, the
court should consider:
(a) the size and strength of the victim, or other
relevant physical characteristics, in comparison
with those of the defendant;
(b) the persistence of the victim’s conduct and
any efforts by the defendant to prevent
confrontation;
(c) the danger reasonably perceived by the
defendant, including the victim’s reputation for
violence;
(d) the danger actually presented to the defendant
by the victim; and
(e) any other relevant conduct by the victim that
substantially contributed to the danger
presented.18

Our review of the sentencing transcript confirms that the

district court focused solely on the second factor, factor (b),

18
U.S.S.G. § 5K2.10 (emphasis added).

28
to the total exclusion of all others. Even though we do not

insist that a sentencing court engage in a talismanic incantation

of each listed factor, the sentencer’s focusing exclusively on

but one factor to the complete disregard of all others is a

substantial first step on the road to abuse of discretion.

Under the first 5K2.10 factor, the sentencing court should

compare the size and strength of the victim to those of the

defendant.19 Harris is 6'2" and 325 lbs.; in contrast, Lopez is

approximately 5 feet tall and weighed, at most, 140 lbs —— more

than a foot shorter than Harris and less than half his weight.

Regarding the third and fourth factors under § 5K2.10, we

note that, at the time the offense occurred —— which was after

the victim had been arrested on a public drunkenness charge ——

Lopez was already handcuffed and in police custody, having been

locked in the caged rear compartment of the patrol car. The

fourth factor expressly instructs the sentencing court to

consider the actual danger presented to the defendant. Having

been restrained and confined (and being unarmed and much smaller

than Harris), Lopez was at most a danger to himself (when he was

banging his head) and to property (when he was thrashing about

and kicking the police car).20 But, importantly, Lopez was never

19
See, e.g., United States v. Yellow Earrings, 891 F.2d 650, 653-
54 (8th Cir. 1989)(noting all five factors and discussing the relative
size and strength of the victim and defendant).
20
Cf. United States v. Paster, 173 F.3d 206 (3d Cir. 1999)
(denying a 5K2.10 departure on the grounds that, although the victim’s

29
a danger to the public and was not a danger to Harris until after

Harris returned to the patrol car and opened its door.21 And,

even at that point, given the handcuffs restraining Lopez and

Harris’s size and the weapons he possessed, it is far from

certain that Lopez ever presented an actual danger to Harris.

Neither is there any indication in the record or the PSR

that Lopez had a reputation for violence or that Harris believed

or suspected that Lopez had any such propensity. Moreover, both

the PSR and Judge Garwood’s opinion confirm that Harris’s return

to the vehicle —— well after Lopez was in custody and subdued ——

was all about Harris’s anger at the situation and his loss of

“composure as a law enforcement officer.”22

Finally, even the one § 5K2.10 factor that the district

court did discuss —— the second factor, persistence of

comments to the defendant about her affairs with other men and her
ability to contact people with weapons were inflammatory, these actions
by the victim did not present danger or reasonable perception of danger
to the defendant).
21
We note at this juncture that the district court referred
repeatedly to the fact that Harris’s blow was a backhanded blow which
did not cause serious damage to Lopez. If the district court considers
the actual danger or damage to Lopez, it should also factor in the
actual danger to Harris.
22
The Presentence Report (and Judge Garwood’s opinion at 5)
describes Harris’s excessive behavior and apparent state of mind.
Specifically, both document that other officers were procuring an
alternative, non-violent, method of restraining Lopez and told Harris
that they were doing so when Harris opened the door and began striking
Lopez. Officer Stacy testified that he stopped Harris from hitting
Lopez because Harris had “lost his composure as a law enforcement
officer.”

30
provocative conduct and avoidance of confrontation —— is not

discussed completely. Our review of the detailed version of the

facts that the sentencing court should have used reveals that it

relied on a sequence of events that is not logically applicable

to support its finding that Lopez’s conduct was persistent and

contributed significantly to Harris’s behavior. According to the

summary version of the facts presented of the PSR, Harris hit

Lopez on the head with the baton (the offense behavior) after

Lopez had thrashed about in the car and after Lopez had kicked

Trimm and received the pepper spray.23 In the credited version

of the facts, which accords with trial testimony and the detailed

portions of the PSR, the only provocative behavior contributing

significantly to Harris’s conduct was Lopez’s thrashing about in

the car and banging of his own head on the plexiglass. As

Harris hit Lopez on the head before Lopez kicked Trimm, Lopez’s

kicking of Trimm could not have contributed to the provoking of

Harris’s behavior (and may have actually been a fearful response

by Lopez to being hit in the head). Applying the version of the

facts presented by the government and by the unanimous panel

opinion, some of Lopez’s most significant behavior could not have

possibly contributed to provoking Harris’s conduct because they

simply had not yet occurred.

Including in the sentencing calculus the number of times

23
PSR ¶ 59, “Part E: Factors that May Warrant Departure.”

31
that the officers returned to the party as part of Lopez’s

persistent behavior also defies logic. The behavior of a

collective group of partygoers, necessitating repeated visits by

police officers, cannot reasonably be laid entirely at the feet

of but one of the party’s attendees and then be treated as though

the group’s collective “persistent provocative behavior” was his

alone.

In addition, the record evidence confirms that Harris made

no effort whatsoever to avoid or prevent a confrontation. To the

contrary, he initiated it. The PSR indicates that Officer Stacy

advised Harris that he (Stacy) was going to his vehicle to obtain

a device that they could use to restrain Lopez’s feet. Instead

of consulting with or waiting for Officer Stacy, Harris proceeded

to the squad car, opened its door, and began striking Lopez with

the baton.

Neither is this case so extraordinary as to eviscerate the

Guidelines of all applicability. Even if the circumstances

militate against assessing the full Guideline’s recommendation of

nine years and militate in favor of a downward departure, the

imposition of a prison term equal to only one-seventh of the

minimum Guideline sentence would require strikingly different

circumstances than those that are presented by this case.

Neither the Guidelines nor precedent give us firm guidance as to

precisely what constitutes a “reasonable” departure, but our

search of the case law produced not a single case with a

32
departure nearly as extensive as the one granted to Harris,

either in percentage or number of offense levels.

In Koon, the Rodney King criminal case, the Supreme Court

did not expressly rule on the “reasonableness” of the departure

but did approve, based on the abuse of discretion standard, the

district court’s downward departure of 5 levels pursuant to

5K2.10 (the same victim provocation grounds that the district

court articulated for its departure here). The victim’s conduct

in that case (high speed drunk driving; endangering lives in a

car chase; continued and possibly dangerous resistance to arrest)

was far more provocative and egregious than Lopez’s (thrashing

about in the back seat of a police car after being restrained and

confined; hitting his own head against a plexiglass barrier while

restrained; kicking at police officers when they opened the

door). Yet the number of offense levels by which the district

court departed in assessing Harris’s sentence is almost three

times the number by which the sentencing court departed

downwardly in Koon.24

In Yellow Earrings,25 the Eighth Circuit affirmed a downward

departure pursuant to 5K2.10, approving a sentence of 15 months,

and a departure of 8 offense levels, even though the Guidelines

24
We concede that the officers’ conduct in Koon was more
egregious than the officer’s behavior in this case. Even given the
limited value of the comparison to Koon, however, the level of departure
in that case is instructive.
25
891 F.2d 650.

33
range for the offense level of 22 was 41 to 51 months (15 months

represents a 63% departure from the minimum guideline sentence of

41 months).26 In Yellow Earrings, where the provoked defendant

(a woman) was standing trial for stabbing the “victim” (the man

who provoked her), the court noted that the victim (1) had

publically humiliated the defendant, (2) had attempted to force

her to engage in sexual intercourse, (3) was known to be violent

when under the influence of alcohol, (4) was bigger and stronger

than the female defendant, and (5) had the advantage of being in

his own private residence at the time of the incident.27 Like

King’s, this conduct was much more provocative than was that of

Lopez in the instant case.

The sentencer here should also have considered the fact that

police are often called to disrupt loud parties; and frequently,

as for example with college fraternity parties, police must make

repeated trips to the scene before the noise level is reduced

sufficiently and permanently. The inclusion of Lopez’s

participation in a raucous party as part of his extended course

of provocative conduct skews any comparison to Rodney King’s

conduct. Put simply, we fail to see how Lopez’s participation as

one of many Mexican-American partygoers at a Cinco de Mayo party

can reasonably be included in the calculus for finding conduct

26
Id. at 652.
27
In Yellow Earrings, however, the defendant was not a police
officer, as is the case here.

34
that “contributed significantly to provoking the offense

behavior,” as required by 5K2.10. There is no indication that

Lopez was anything other than one of many revelers who together

made repeated police visits necessary.

Furthermore, as Judge Garwood’s opinion for our panel notes,

even though Lopez eventually pleaded guilty to a single count of

resisting arrest, he initially submitted, calmly and without

incident, to being arrested, handcuffed, and placed in the squad

car. All reasonably related provocative actions occurred after

Lopez’s was handcuffed and confined in a police car.28 As we

stated in United States v. Clayton, “[w]e think that an

underlying consideration in applying the guideline [§ 3A1.3] is

that the physical restraint of a victim during an assault is an

aggravating factor that intensifies the wilfulness, the

inexcusableness and reprehensibleness of the crime and hence

increases the culpability of the defendant.”29 Here, in

departing so extensively, the district court appears to have

ignored the wilfulness and heightened culpability of defendant

Harris.

Given (1) the enhancement of Harris’s sentence for striking

the restrained victim, (2) the non-extraordinary nature of the

28
In arriving at Harris’s offense level of 29, the court added a
2-point enhancement pursuant to § 3A1.3 because Lopez was physically
restrained at the time of the offense.
29
172 F.3d 347, 353 (5th Cir. 1999).

35
case, and (3) the sentencing court’s single-pointed focus on but

one of the five listed factors of 5K2.10, we conclude that

departing downwardly 85% is an abuse of discretion, necessitating

a remand for resentencing.

Nevertheless, even if the foregoing reasons (which alone

satisfy us that vacatur is mandated) were not deemed sufficient

to warrant vacatur, the additional contextual factors detailed in

the record —— (1) Harris’s personal history and (2) his extreme

ethnic animus —— push the extent of this departure well beyond

the borders of reasonableness. First, as we are here dealing

with the conduct of a police officer in the course of his

official duties, consideration of Harris’s employment record may

be relevant despite the policy statement in U.S.S.G. § 5H1.5 to

the contrary.30 Even so, the district court’s mention of

Harris’s employment record and the letters of community support

—— to the complete exclusion of the other relevant personal

history facts in the PSR —— contributes to the conclusion that

discretion was abused. Albeit unscoreable for CHC purposes, one

example of a relevant matter left unaddressed by the district

court is Harris’s 1975 guilty plea in state court to a charge of

harassment by telephone. Another example is his having been

30
U.S.S.G. § 5H1.5 (“[e]mployment record is not ordinarily
relevant in determining whether a sentence should be outside the
applicable guideline range.”). Also, Harris’s clean employment record
is partly accounted for in holding down his criminal history category
(“CHC”) score of I.

36
arrested and charged with disturbance or assault in 1993 (which

charges were admittedly dropped eventually by the complainant).

A third example is not the fact that Harris was twice married and

twice divorced, but that both divorce decrees specified that

Harris was abusive, violent, and cruel to his spouses.

Finally, judging from the sentencing transcript and Judge

Garwood’s opinion for our unanimous panel, the district court

failed totally to consider two additional factors, both related

to Harris’s ethnic animus. First, the record shows that in his

conversation with FBI agents during that agency’s investigation

some nine months after the incident took place, Harris expressed

his belief that Mexicans do not have the same rights as “real

Americans” and stated that if the same situation were presented

again, he would again strike Lopez. An 85% percent departure

from the minimum guideline sentence does not adequately punish an

openly bigoted Caucasian defendant who shows no remorse for

assaulting an Hispanic victim, especially one who literally

heralds his own recidivist potential.

Second, the PSR, the trial testimony, and the government’s

brief detail multiple instances during which Harris made known

his hatred for Mexicans or Mexican Americans, his unrepentant

beliefs about the relative rights of Mexican Americans, and his

continued belief in the correctness of his actions.31 Even

31
See supra note 3.

37
though Harris was never indicted for or convicted of assaulting

Lopez because of ethnic animus, the court’s excluding this

evidence from its sentencing colloquy omits the larger point that

Harris’s documented comments regarding Mexicans before, during,

and after his assault on a handcuffed Mexican arrestee is

relevant conduct for sentencing purposes. Although it is

generally within the district court’s discretion to designate

what it considers to be relevant conduct, in this case, the

court’s exclusion of a continuous pattern of overt bigotry from

Harris’s relevant conduct produces a miscarriage of justice.

Completely ignoring Harris’s ethnically intolerant attitudes and

confirmatory statements obscures the true and complete picture of

all that took place on that night. Without addressing these

facts, the district court could not take an accurate measure of

the true extent of Harris’s culpability.

We remain ever mindful of the discretion afforded to the

district court in sentencing matters. Nonetheless, we cannot

accept that, under all these circumstances, the sentencer’s

skewing of the § 5K2.10 analysis through, inter alia, the total

disregard of Harris’s ethnic animosity is a reasonable exercise

of discretion. As a result, the extent of the court’s downward

departure too is unreasonable. We therefore vacate the extent of

that departure (and thus Harris’s sentence) and remand the case

to the district court with instructions to resentence Harris

after giving due consideration to all aspects of the multi-factor

38
analysis required by the Guidelines, including, in the process,

reconsideration all § 5K2.10 factors, in a manner consistent with

this opinion.

II. CONCLUSION

For the foregoing reasons, we affirm Harris’s conviction and

the district court’s decision to depart downwardly, but we hold

the extent or degree of the departure not to be reasonable. This

in turn mandates that we vacate Harris’s sentence and remand to

the district court for resentencing consistent with this opinion.

Conviction AFFIRMED; sentence VACATED; case REMANDED for

resentencing, with instructions.

ENDRECORD

39
GARWOOD, Circuit Judge, dissenting in part.

I respectfully dissent from the holding that the extent of

the departure was excessive. In my view, the majority pays

inadequate deference to the district court’s role as arbiter of

the facts and to its “almost complete discretion” in fixing the

extent of a departure.32

The majority’s primary emphasis seems to be on its

conclusion that Harris is a bigoted Caucasian prejudiced against

Mexicans, a conclusion which can reasonably be drawn from three

different sets of remarks by Harris (as described in the

majority’s footnote 3). However, the majority concedes that “it

was not charged or proved that his actions were driven by ethnic

animus” (emphasis added), and it is clear to me that the district

court considered and rejected any such hypothesis. The court

stated, obviously in rejection of the Government’s argument that

Harris’s racial animus played a role in the offense, in relevant

part as follows:

“All attempts to stop this tearing up the back of the

32
United States v. Alvarez, 51 F.3d 36, 41 (5th Cir. 1995). See
also, e.g., United States v. Cooper, 274 F.3d 230, 248 (5th Cir. 2001);
United States v. Hashimoto, 193 F.3d 840, 843 (5th Cir. 1999).

40
 car were unsuccessful, and then Mr. Harris did, at that
time, commit the crime with which he stands convicted,
he hit him in the head with a police baton . . . it was
a back-hand blow that did–was a result of disruptive
behavior by the victim. It was obviously provoked.
The Government argues in its brief–I think it’s
preposterous to argue that Mr. Harris had the intent
and the plan to start beating people up before he ever
went over to the house. It’s obvious that he did not
hit anybody until after the fourth trip and the victim
started trying to kick out the back of the car. So
it’s obvious to the Court that these acts by the victim
were inescapably provocation of what happened to him by
Mr. Harris. . . . [Lopez] was trying to harm himself
and to kick out the back of the car. Mr. Harris lost
his temper. He shouldn’t have done it, but he did not
do something that was likely to injure him severely or
kill him.” (emphasis added)

Moreover, there is no evidence that Harris (who had been in

law enforcement over twenty years) on any other occasion ever

took or attempted any ethnic, racial or other discriminatory

action in either an official or a private capacity. In these

circumstances, since the district court plainly concluded, based

on adequate evidence, that the offense behavior arose solely

because Harris “lost his temper” as a result of Lopez’s

provocation, and did not arise from racial animus, further

consideration of Harris’s ethnic prejudice was not required and

the evidence of this does not justify the conclusion that the

extent of the departure constituted an abuse of the district

court’s discretion.33

33
Of course, that the offense for which a defendant is sentenced
was motivated by racial animus is generally a proper factor to consider
in sentencing at a higher end of an otherwise permissible range (or as
a factor enhancing the range), Wisconsin v. Mitchell, 113 S.Ct. 2194

41
 The other major underpinning of the majority opinion on the

extent of departure issue is that factors (a), (c) , (d) and (e)

of Guidelines section 5K2.10 cut against, not in favor of, a

large downward departure. But, these factors simply are not

relevant–and do not speak to–a situation, such as that here,

where the valid decision to depart is taken on the basis that the

victim’s wrongful conduct was provocative of (and provoked) the

offense behavior for reasons unrelated to any physical danger

(actual or reasonably perceived) thereby posed to the person of

the defendant (or another). The sentencing court should

obviously consider the extent to which the offense behavior is

disproportionate to the provocation.34 Plainly the court did so

here. It found that the offense behavior was that Harris

“reached into the car and hit him [in the head] with it [the

baton] back-handed,” “using [his] forearm;” that Harris “didn’t

raise the baton over his head and come down on him;” that “there

was not very much damage done to this victim at all;” and that

Harris “did not do something that was likely to injure him

[Lopez] severely.” In other words, while the force used by

Harris was excessive it was not so to a large extent or degree;

(1993), “[b]ut it is equally true that a defendant’s abstract beliefs,
however obnoxious to most people, may not be taken into consideration
by a sentencing judge.” Id. at 2200.
34
It will almost always be somewhat disproportionate to the
provocation in that sentencing only deals with provocation which does
not legally excuse or justify the offense.

42
nor was there significant harm to the victim.

As to the provocation, the majority faults the district

court for considering in that regard the continuation of the

noisy, raucous party (at least partly going on in the carport and

front yard of the house) after three prior requests by Harris, as

a police officer, to keep it quiet and warning of arrest if that

was not done. Clearly this was relevant to Harris’s state of

mind as being “provoked.” Moreover, Lopez admittedly was at the

party and drank alcoholic beverages there and he was concededly

very drunk when the officers arrived the fourth time. That is

not to say, and the district court did not say, that Lopez would

have sufficiently engaged in “wrongful conduct” for purposes of

section 5K2.10 had he behaved after being placed in Harris’s car.

But he did not. He started wildly kicking at the windows and the

interior of the car, thrashing about and the like, and persisted

in doing so despite efforts to stop him. I can see no

impropriety in considering the entire course of conduct in

respect to the matter of provocation under section 5K2.10.

Certainly that is a matter within the district court’s

discretion. Any other approach would be wholly unrealistic.

Moreover, the district court could properly conclude that:

after putting Lopez in his car, Harris walked away and only

returned when Lopez began his violent kicking and thrashing

about; on returning to the car Harris opened the door, Lopez

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kicked at Harris, Harris told Lopez to stop kicking him, and

Harris then struck Lopez in the shins with the baton; Lopez

apparently stopped kicking and Harris closed the door and walked

away; but Lopez then resumed thrashing about the car and started

banging his head against the plexiglass divider; Harris then

again returned to the car, opened the door and struck Lopez with

the baton, apparently first on the legs35 and, as Lopez continued

to thrash about, then on the head (back-handed).36

35
The district court plainly did not, and under the evidence was
not required to, find that any of the blows to the shins or legs
constituted excessive or illegal force or the offense behavior.
36
The majority suggests (its note 10) that Harris knew other
officers were procuring an alternative, nonviolent method of restraining
Lopez. The only evidence in this regard is the testimony of Sheriff’s
Officer Stacy that sometime after Lopez started kicking in the car, he
[Stacy] commented “he [Lopez] could possibly hurt himself or kick a
window out of the car” and that “I informed the other officers that I
had a hobble . . . in the [Stacy’s] car” and that he then “proceeded
back to my car to get a hobble.” Stacy further stated that when he made
the comment about having a hobble in his car, Harris was standing near
Harris’s car and “was close enough to hear” Stacy. Just how long it
took Stacy to return from his hobble trip is not clear. It appears that
when Stacy returned Harris had for the second time opened the door and
commenced striking Lopez. Stacy never testified that Harris or any
other person present ever did or said anything indicating that they
heard what Stacy had said about the hobble or ever knew he had one, nor
does any other evidence so indicate. None of the other witnesses
mentioned anything about a “hobble” (or similar device) or that Stacy
had said he was going to get a restraining device. When Flynt was asked
what Harris could have done to restrain Lopez, he replied “you can put
seatbelts on them, restrain their feet;” but he did not mention that
Stacy had, or was going to get, a restraining device. Trimm
unsuccessfully attempted to restrain Lopez with mace (Lopez kicked him
in the groin).
I also note that there is evidence of prior “bad blood” between
Harris and some of the sheriff’s officers, and the district court
commented on this at sentencing stating “they testified in such a way
that it appears to the Court that there was some disagreements they had
with this defendant before.”

44
 The permissible view of the evidence, taken by the district

court, can be summarized as follows: that Harris, having tried to

stop Lopez’s violent kicking and banging about in the car (which

was clearly a danger to both the car and Lopez) by hitting him in

the legs with his baton in a manner which was not illegal or

excessive, and having done so again when, after Harris closed the

door, Lopez recommenced that behavior, Harris simply lost his

temper, obviously frayed by the entire sequence of events that

evening, and crossed the sometimes cloudy or wavering line

between reasonable and excessive force by striking Lopez in the

head with a back-handed movement from within the car, not a hard

swing or blow nor one likely to injure Lopez severely, which

resulted in no serious injury nor very much damage to Lopez.

The point of this dissent is not that the writer would–or

would not–view the evidence just as did the district court, or

draw the same inferences from it, or, if the writer had elected

to depart, would–or would not–in the exercise of discretion

depart to the extent the district court did. The point is,

rather, that we should view the record facts before us in the

light most favorable to the district court’s sentencing decision,

except as one can properly say that such a view would be clearly

erroneous, and, that we should determine only whether, on the

basis of such facts, the extent of the departure can fairly be

characterized as an abuse of the district court’s “almost

45
complete discretion.” On the facts so viewed I can find no such

abuse of discretion.37

Accordingly, I dissent from the majority’s holding as to the

extent of departure.

37
I observe in passing that the majority seems to criticize the
district court for not mentioning at sentencing that, as described in
the PSR, Harris in 1975 had pleaded guilty to telephone harassment (no
particulars being stated), the sentence for which was a $25 fine; that
in respect to Harris’s February 1980 divorce the “[c]ourt records . .
. reflect [just how, whether in the pleadings or judgment or otherwise,
is not stated], that the defendant was guilty of cruel and inhuman
treatment during the marriage;” that in Harris’s June 1973 divorce, the
February 1973 “Bill for Divorce” (clearly referring to the wife’s
pleading initiating the divorce action, not to the “Final Decree of
Divorce”) “reflects” various bad treatment of the wife by Harris
including that he “habitually threatened her with violence and struck
and beat her on many occasions;” and that “[r]ecords of the Belmont,
Mississippi, Police Department reflect the defendant was charged with
disturbance or assault, but the charge was dropped by the plaintiff in
January 1993" and there “was no information regarding details” of the
matter. The district court can be presumed to be aware of these items
in the PSR, and surely did not abuse its discretion in deeming them of
insufficient importance to warrant express mention by it at sentencing.

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