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
43
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.
46
47