The Post-Koon Era of Downward Departure Jurisprudence: A Discussion of Koon and Post-Koon Cases Granting and Upholding Departures

Larry Allen Nathans Jason D. Tulley
Nathans & Ripke LLP
120 East Baltimore Street, Suite 1800
Baltimore, Maryland 21202
410.783.0272
410.783.0518 (Facsimile)
nathans@bnllp.com (E-mail)


The Seventh Annual National Seminar on
the Federal Sentencing Guidelines
May 13-15, 1998
Clearwater, Florida

I. Introduction

In Koon v. United States, 518 U.S. 81, 116 S. Ct. 2035, (1996) (majority opinion authored by Justice Kennedy), the Supreme Court established two significant principles regarding downward departures: 1) the Court created a framework for analyzing when departures may be applicable, and 2) the Court established the standard of review to be employed by circuit courts. The Court then applied these principles to the Koon facts.

This outline discusses the Koon decision and the new downward departure factors embraced by courts in the post- Koon era. In some of the cases included in the post- Koon era discussion, the appellate panel concluded that the Supreme Court's decision in Koon had implicitly overruled the existing precedent and that the Koon decision required a reconsideration of permissible departure factors. Other cases discussed in that section are those of first impression for the circuit, where the appellate panel has decided, in light of Koon, that a factor may be considered as a basis for downward departure. Finally, some cases were added in order to show circumstances in which departures have been granted after Koon. Cases that denied or reversed departures were generally not included unless they were relevant to a specific topic otherwise covered.

II. The Koon Decision

A. A Framework For Analyzing Downward Departures

The Court adopted a framework set forth by then First Circuit Chief Judge Breyer in United States v. Rivera, 994 F.2d 942 (1st Cir. 1993):

When considering a departure, a court must ask:

(1) What features of this case, potentially, take it outside the Guidelines' `heartland' and make it a special, or unusual case?

(2) Has the Commission forbidden departures based on those features?

(3) If not, has the Commission encouraged departures based on those features?

(4) If not, has the Commission discouraged departures based on those features?

Koon, 116 S. Ct. at 2045.

In applying the Court's framework the sentencing court should first identify any "special feature(s)" of the case that may form the basis for departure. Id. If the Commission has forbidden departures based upon that feature, the court cannot grant a departure (e.g. race, sex, national origin, creed, religion, socio-economic status, § 5H1.10; lack of guidance as a youth, § 5H1.12; drug or alcohol dependence, § 5H1.4; and economic hardship, § 5K2.12). Id. at 2044-45.

However, if the guidelines have encouraged departures based upon a particular factor, the court may depart if the applicable guideline does not already account for the factor (e.g. downward departure for victim conduct, § 5K2.10; upward departure for disruption of a government function, § 5K2.7). Id.

If the factor is discouraged as a basis for departure or if it is an encouraged factor already taken into account by the guidelines, the court should depart only "if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present." Id. at 2045. Discouraged factors include a defendant's family ties and responsibilities, § 5H1.6, or educational and vocational skills, § 5H1.2. Id. Encouraged factors already taken into consideration would include disruption of a government function which is already taken into account in obstruction of justice cases, § 5K2.7. Id.

Finally, if the factor is not identified in the guidelines, the court must determine if the factor takes the case outside the `heartland.' This analysis should consider the structure and theory of the relevant guideline and the guidelines as a whole. Id.

B. Standard of Review

Prior to Koon, most federal appellate courts reviewed a district court decision regarding departures in three ways. First, the district court's determination that a departure was applicable was reviewed de novo. Second, the extent of the departure was subject to a reasonableness review. Third, the factual findings of the district court underlying the departure were reviewed for clear error. In Koon, the Court collapsed these three separate reviewing processes and established an abuse of discretion standard for review of all departure decisions. Id. at 2046.

Although the government argued that Congress did not intend such a lenient standard, but rather desired to remove the disparity between judges in federal sentencing with greater conformity, the Court, looking to a 1988 amendment to 18 U.S.C. § 3742(e)(4) , held that the creation of the Sentencing Commission was not intended to end the traditional sentencing discretion afforded district courts. Id. at 2046-47. The Court noted that the abuse of discretion standard was particularly appropriate because the district court's day-to-day experience provides it with the context to determine when a factor takes a case outside the `heartland.' Id. at 2047. Additionally, this experience gives the district court a better perspective than the appellate court to determine if a factor is present to an unusual or exceptional degree which would allow for a departure even if the factor is discouraged or it is an encouraged factor already taken into account. Id.

Despite its adoption of the abuse of discretion standard, the Court noted that questions of law will arise (e.g. such as whether a factor is a permissible basis for departure under any circumstances), and in those instances, a court of appeal need not defer to the district court's decision. Id. The Court stated that a district court's error of law is by definition an abuse of discretion, and thus the courts of appeal should "apply a unitary abuse of discretion standard." Id.

III. Post- Koon Cases

A. Aberrant Behavior

The Eighth Circuit determined that acts of aberrant behavior can serve as a basis for a downward departure.United States v. Kalb, 105 F.3d 426, 430 (8th Cir. 1997) (remanding for reconsideration, in light of Koon, of circuit precedent stating that aberrant behavior departures are available only in cases involving "single acts" in probation-eligible offenses). See also, United States v. Martinez-Villegas, __ F. Supp. __, 1998 U.S. Dist. Lexis 1450 at *33-37 (C.D. Ca. Feb. 2, 1998) (departure for aberrant behavior granted where only evidence of past crimes by defendants was their mere bragging and "bolstering" to undercover agents, the crime lacked extensive planning or sophistication, and defendants were heavily induced to the crime by imperfect entrapment of government); United States v. Delvalle, 967 F.Supp 781, 784 (E.D.N.Y. 1997) (departing for aberrant behavior where defendant's only two criminal acts occurred a week apart because the acts "were so closely related that they can be understood as a unitary instance of behavior" and because defendant had a minor role in the crime, was a fully employed good husband, and made great effort to provide assistance to the government). But see, United States v. Bradstreet, 135 F.3d 46, 1998 U.S. App. Lexis 1289 at *27-37 (1st Cir. Jan. 29, 1998) (district court departure reversed because as a matter of law one convicted of criminal dishonesty who testifies dishonestly about his conduct is not entitled to aberrant behavior departure; while defendants can testify at trial falsely and still be eligible for the departure where that testimony is the product of confusion, mistake or faulty memory, here defendant intentionally testified falsely and thus was not eligible for the departure); United States v. Winters, __ F.3d __, 1997 U.S. App. Lexis 12988 at *19-22 (5th Cir. Jan. 23, 1997) (finding abuse of discretion in trial court's downward departure for aberrant behavior where evidence showed that defendant, a prison guard convicted of civil rights violations, had beaten inmates on multiple occasions); United States v. Weise, 89 F.3d 502, 507 (8th Cir. 1996) (the defendant's violent conduct was not spontaneous nor thoughtless and did not constitute a single act of aberrant behavior); United States v. Angel-Martinez, __ F. Supp. __, 1997 U.S. Dist. Lexis 20092 at *30 (D.N.J. Dec. 15, 1997) (aberrant behavior departure denied because defendant's conduct involved some pre-planning and cannot be characterized as spontaneous or thoughtless); United States v. Artim, 944 F. Supp. 363, 368 (D.N.J. 1996) (aberrant departure behavior denied because defendant's receipt of child pornography by mail was pre-planned).

B. Age and Physical Condition

The Tenth Circuit upheld a departure in part because of defendant's age and physical condition. United States v. Collins, 122 F.3d 1297, 1306-07 (10th Cir. 1997) (downward departure removing defendant from career offender status upheld because, among other things, defendant's age (64) and poor health meant a decreased chance of recidivism). See also, United States v. Rioux, 97 F.3d 648, 663 (2d Cir. 1996) (departure for older defendant suffering from serious kidney problems, bone disease requiring double hip replacement, and on the basis of his civic efforts to raise money for kidney foundation); United States v. Gigante, __ F. Supp. __, 1997 U.S. Dist. Lexis 20133 at *15-20 (E.D.N.Y. Dec. 18, 1997) (departure based on mob boss' physical state, advanced age, and a court's duty not to impose sentences that are excessively cruel). But see, United States v. Booher, 962 F. Supp. 629, 633-34 (D.N.J. 1997) (departure denied because many elderly defendants suffer from heart problems).

C. Community Service

In United States v. Wilke, __ F. Supp. __, 1998 U.S. Dist. Lexis 1618 at *7-8 (N.D. Il. Jan. 30, 1998), the district court granted a departure because of defendant's extraordinary community service in creating a theater workshop, working to help abused children, and performing benefit concerts.

D. Criminal History

Some Circuits have granted downward departures either in whole or in part as the result of the benign nature or age of a prior conviction. See, United States v. Diaz-Diaz, 135 F.3d 572, 1998 U.S. App. Lexis 1365 at *22 (8th Cir. Feb. 2, 1998) (departure upheld in reentry after deportation case because prior aggravated felony was a fifth degree sale of 8.3 grams of marijuana for which defendant received a sentence of time served: 22 days at a county workhouse); United States v. Collins, 122 F.3d 1297, 1306-07 (10th Cir. 1997) (downward departure removing defendant from career offender status upheld because defendant's age (64) and poor health meant a decreased chance of recidivism, and because the first prior offense occurred almost ten years ago, was a minor offense for which the defendant had received a relatively lenient sentence, and the offense might not have fallen within the career offender range had it been prosecuted in a timely manner); United States v. Miranda, 979 F. Supp. 1040, 1997 U.S. Dist. Lexis 14783 at *10-14 (D.N.J. Sept. 26, 1997) (DWI and driving without a license convictions were old and distinct from the instant offense). But see, United States v. United States v. McNeil, 90 F.3d 298, 300 (8th Cir.) (career offender departure inapplicable because nothing about defendant's long and continuous criminal career was overstated by the application of the career offender guideline), cert. denied, 117 S.Ct. 596 (1996); United States v. Gigante, __ F. Supp. __, 1997 U.S. Dist. Lexis 20133 at *8-9 (E.D.N.Y. Dec. 18, 1997) (in view of defendant's long criminal history beginning no later than the 1960's a reduction in criminal history category would seriously understate his criminality as a gang boss even though these criminal activities did not result in conviction).

E. Cultural Assimilation

The Ninth Circuit expressed a willingness to accept cultural assimilation as a permissible ground for downward departure in cases outside the "heartland." United States v. Lipman, 133 F.3d 726, 1998 U.S. App. Lexis 129 (9th Cir. Jan. 8, 1998). The Court of Appeals stated that "cultural assimilation may also be relevant to the character of a defendant. . . insofar as his culpability might be lessened if his motives were familial or cultural rather than economic." Id. at *11. The appellate panel, in distinguishing cultural assimilation from the general threat of deportation, stated that cultural assimilation "speak[s] to an individual defendant's offense, his conduct and his character, and not just to possible future events unrelated to the defendant's individual circumstances. Id.

F. Deportable Alien Status

The Seventh Circuit, in United States v. Farouil, 124 F.3d 838 (7th Cir. 1997), addressed whether a defendant's status as a deportable alien, in a case in which the defendant was not charged with reentry after deportation, could be considered by a district court for the purpose of granting a downward departure. Id. at 847. The appellate panel, in light of Koon, stated that there is "no reason to believe that the Guidelines have accounted for the defendant's status as a deportable alien in setting a level for that offense." Id. (concluding that a sentencing court, when deciding to grant a downward departure, was free to consider whether a defendant's status as a deportable alien had resulted in unusual or exceptional hardship in his conditions of confinement). See also, United States v. Bakeas, 987 F. Supp. 44, 1997 U.S. Dist. Lexis 19584 at *25 (D. Mass. Nov. 14, 1997) (downward departure granted because defendant's non-citizen status played no role in the offense and because Bureau of Prison Policy would have resulted in defendant being sent to a medium security prison rather than serving his sentence in a community confinement facility). But see, United States v. Marin-Cataneda, 134 F.3d 551 1998 U.S. App. Lexis 1007 at *15 (3d Cir. Jan. 22, 1998) (holding that the district court did not err when it decided it did not have the authority to depart because of the defendant's willingness not to oppose deportation); United States v. Gonzalez-Portillo, 121 F.3d 1122 (7th Cir. 1997) (because deportable alien status is an inherent element of the crime of reentry after deportation, it was clearly taken into consideration by the Sentencing Commission), cert. denied, 118 S. Ct. 720 (1998); United States v. Clase-Espinal, 115 F.3d 1054, 1057-60 (1st Cir.) (stipulation of alienage and deportability does not justify departure), cert. denied, 118 S. Ct. 384 (1997); United States v. Flores-Uribe, 106 F.3d 1485, 1486 (9th Cir. 1997) (upholding district court's denial of a departure based on defendant's consent to be deported); United States v. Angel-Martinez, __ F. Supp. __, 1997 U.S. Dist. Lexis 20092 at *30 (D.N.J. Dec. 15, 1997) (the typical ineligibility of deportable aliens for pre-release confinement cannot provide a basis for departure).

G. Employment

The First Circuit held that a sentencing court abused its discretion when it concluded that a downward departure for loss of employment is "unavailable as a matter of law." United States v. Olbres, 99 F.3d 28, 36 (1st Cir. 1996) (applying Koon and explaining that the Guidelines neither categorically exclude nor implicitly discourage such a departure based on loss of employment). See also, United States v. Winters, __ F. Supp. __, 1997 U.S. App. Lexis 12988 at *23 (5th Cir. Jan. 23, 1997) (reversing departures based on district court's failure to state specific reasons for departure but recognizing on remand a departure based on defendant's employment may be proper). But see, United States v. Drew, 131 F.3d 1269, 1997 U.S. App. Lexis 35878 at *3 (8th Cir. Dec. 22, 1997) (because it is not unusual for a convicted felon to be barred from work in law enforcement, disqualification is insufficient to warrant a downward departure); United States v. Hoffer, 129 F.3d 1196, 1997 U.S. App. Lexis 33310 at *19 (11th Cir. Nov. 21, 1997) (loss of medical license can never be the basis for a downward departure); United States v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996) (police officer's future job loss as a firearms handler and instructor is an inapplicable basis for departure);United States v. Shaskey, 939 F. Supp. 695, 701 (collateral consequences of job loss is irrelevant).

H. Family Circumstances

The Second Circuit reaffirmed, in light of Koon, that extraordinary family circumstances may serve as the basis for a downward departure in outside the "heartland" cases. In United States v. Galante, 111 F.3d 1029 (2d Cir. 1997) the Court upheld the district court's conclusion that "the reduction or elimination of time to be served in prison permitted [Galante] to continue to discharge [his] existing family responsibilities, avoided putting the families on public assistance and spared traumatizing the vulnerable emotions of [Galante's] children" were valid bases for departure. Id. at 1037. See also, United States v. Graham, __ F. Supp. __, 1998 U.S. Dist. Lexis 2243 at *14-15 (N.D. Il. Feb. 20, 1998) (granting downward departure for family circumstances where defendant's family's disabilities require him to perform basic everyday tasks such as cooking cleaning and doing "the heavy work" for them; the court also noted defendant no longer posed a threat to the community at 70 years of age, fully confessed when caught, had no criminal history and avoided violence during his bank robberies); United States v. Dyce, 975 F. Supp. 17, 22 (D.D.C. 1997) ("If this court were to imprison for five years and the State were to enforce its custody law, the children would have to be uprooted from their present environment and probably placed in foster care - not a very good prospect for children of tender years."). But see, United States v. Archuleta, 128 F.3d 1446, 1447 (10th Cir. 1997) (vacating and remanding sentence because family circumstances in question are within the "heartland" - single parent of two minor children who also cares for his 74 year-old mother who is diabetic and takes insulin treatments); United States v. Carter, 122 F.3d 469, 474 (7th Cir. 1997) (defendant's family circumstances did not remove him from the "heartland"); United States v. Crosby, 96 F.3d 1114, 1115 (8th Cir. 1996) (district court properly determined defendant's status was not exceptional); United States v. Miranda, 979 F. Supp. 1040, 1042-43 (D.N.J. 1997) (fact that defendant's daughter requires regular follow-up treatment in order to monitor her progress after brain tumor surgery and son suffers from disciplinary problems are not extraordinary).

I. Good Time Credits Lost and Delay in Prosecution

The Ninth Circuit, in an unpublished opinion, has held that in light of the Supreme Court's decision in Koon that, in combination, a defendant's loss of good time credits and a delay in prosecution may take a case outside the "heartland" of cases contemplated by the Sentencing Commission and serve as a basis for downward departure. United States v. Petersen, 103 F.3d 143, 1996 U.S. App. Lexis 30180 at *3-4 (9th Cir. Nov. 18, 1996) (unpublished) (holding that a district court could consider whether a defendant's loss of good time credits combined with a delay in prosecution would take a case outside the "heartland" cases contemplated by the Commission).

J. Lacey Act

In United States v. Bernal, 90 F.3d 465, 467-68 (11th Cir. 1996), the Eleventh Circuit upheld a downward departure where the defendants did not "cause or threaten the harm or evil sought to be prevented" by the Lacey Act because the defendants had taken two gorillas, not for poaching or sport, but to breed in a state park in Mexico.

K. Lack of Youthful Guidance

The Ninth Circuit upheld in United States v. Ramos-Oseguera, 120 F.3d 1028 (9th Cir. 1997), cert. denied, 118 S.Ct. 1094 (1998), a departure based upon the defendant's lack of youthful guidance because the offense occurred prior to the Sentencing Commission's 1992 amendment providing that such a determination was not relevant to sentencing. See U.S.S.G. § 5H1.12 (1992).

L. Lesser Harms

In United States v. Barajas-Nunez, 91 F.3d 826, 832 (6th Cir. 1996), the defendant illegally reentered the country to care for his pregnant girlfriend and unborn child as she came to term. Although the Circuit Court disagreed that the facts of this case warranted a departure for lesser harms, stating that such a departure should be reserved for extreme cases such as mercy killings, they nevertheless affirmed the district court, finding the decision was not plain error (the government had failed to object at sentencing) in part because of the dearth of caselaw on the topic. Id.

M. Mental Capacity

The Third Circuit concluded for the first time that while mental and emotional conditions are not ordinarily relevant to determine whether a downward sentence departure is warranted, one suffering from a significantly reduced mental capacity may be eligible for a departure if he is unable to absorb information in a "usual way" or to exercise the power of reason or defendant knows what he is doing and that it is wrong but cannot control his behavior or conform it to the law). United States v. McBroom, 124 F.3d 533, 548-50 (3d Cir. 1997). See also, United States v. Ramos-Oseguera, 120 F.3d 1028, 1040-41 (9th Cir. 1997) (remanded for additional findings because learned helplessness due to Battered Woman's Syndrome might be a basis for diminished capacity departure). But see, United States v. Withers, 100 F.3d 1142, 1148 (4th Cir.) (district court's diminished capacity departure reversed because defendant's depression over the death of her mother occurred four months before heroin transportation), cert. denied, 117 S. Ct. 1282 (1997);United States v. Barajas-Nunez, 91 F.3d 826, 831-32 (6th Cir. 1996) (circumstances found by district court, inability to speak English and lack of formal education, do not constitute significantly reduced mental capacity); United States v. Janusz, 986 F. Supp. 328, 1997 U.S. Dist. Lexis 19981 at *3-4 (D. Md. Nov. 24, 1997) (there was no evidence that her depression affected her ability to reason or process information);

N. Money Laundering

In two Fifth Circuit district court money laundering cases judges have held that a combination of factors formed the basis for downward departures because the combination of factors caused the cases to fall outside of the "heartland" of traditional money laundering cases. See United States v. Ferrouillet, __ F. Supp. __, 1997 U.S. Dist. Lexis 7166 at *27-28 (E.D. La. May 20, 1997) (factors including legislative history, statistical evidence, structure of the guidelines, and the lack of other similar cases prosecuted under money laundering statutes could form the basis for a downward departure) and United States v. Bart, 973 F. Supp. 691, 706 (W.D. Tex. 1997) (holding that a downward departure from money laundering sentencing guidelines was justified because of a combination of factors including the legislative history, the Sentencing Commission's commentary on the proposed amendments to the guidelines and, the guidelines themselves).See also, United States v. Walters, 87 F.3d 663, 671-72 (5th Cir.), cert. denied, 117 S. Ct. 498 (1996) (failure of money-laundering defendant to receive personal benefit from scheme was a mitigating factor not considered by the Sentencing Commission). But see, United States v. Hardesty, __ F. Supp. __, 1997 U.S. Dist. Lexis 21234 at *9 (D. Kan. Dec. 19, 1997) (departure not appropriate in money laundering case because defendant was embezzler and not a drug dealer).

O. Narcotics

1. Discrimination v. Crack Powdered Cocaine Disparity

In United States v. Coleman, __ F.3d __, 1998 U.S. App. Lexis 4176 at *7-17 (6th Cir. Mar. 11, 1998), the Sixth Circuit reversed the district court, ruling that the ATF's discriminatory targeting of African-Americans in its investigation as well as the sentencing guideline discrepancies between crack and powder cocaine in conjunction with such discrimination, could each form the basis for a downward departure.

2. Methamphetamine

The Ninth Circuit decided that district courts have the authority to consider a downward departure on the basis that a defendant lacked control over, or knowledge of, the purity of methamphetamine that he was convicted of delivering. United States v. Mendoza, 121 F.3d 510, 513 (9th Cir. 1997) (middleman between the informant and supplier). But see, United States v. Beltran, 122 F.3d 1156, 1997 U.S. App. Lexis 23893 at *9-10 (8th Cir. Sept. 11, 1997) (because the Sentencing Commission has already considered how to handle a case involving a low level of methamphetamine present in mixture the existence of such a circumstance is a "forbidden factor").

P. Physical Condition

The Second Circuit upheld a departure based on the defendant's physical condition. United States v. Rioux, 97 F.3d 648, 663 (2d Cir. 1996) (defendant suffered from serious kidney problems, bone disease requiring double hip replacement, and on the basis of his civic efforts to raise money for kidney foundation). See also, United States v. Dyce, 975 F. Supp. 17, 23 (departure granted because defendant suffered from stroke and was forced to switch to out-patient program because in-patient program could not provide adequate medical care, still requires regular medical care and takes a number of prescription medications). But see, United States v. Winters, __ F. 3d __, 1997 U.S. App. Lexis 12988 at *25-26 (5th Cir. Jan. 23, 1997) (defendant's suffering from sarcoidosis was not exceptional).

Q. Plea Bargains

1. Conservation of Judicial Resources

Since the Koon decision, the First Circuit has expressed a willingness to allow a sentencing court to grant downward departures based on a significant conservation of judicial resources. United States v. Dethlefs, 123 F.3d 39, 43 (1st Cir. 1997) (holding that, in theory, a defendant's guilty plea that results in a significant conservation of judicial resources may serve as a predicate for downward departure. The appellate panel in Dethlefs, while denying a downward departure, stated that in a post- Koon era, "it would be folly to conclude that a timely guilty plea which conserves judicial resources and thereby facilitates the administration of justice must not be considered under any circumstances in the departure calculus." Id. at 46.

2. Government Undercuts Recommendation in Cooperation Case

In United States v. Mitchell, __ F.3d __, 1998 U.S. App. Lexis 2656 at *4-7 (8th Cir. Feb. 19, 1998), the Eighth Circuit reversed for resentencing where the government, while moving for a departure for cooperation under U.S.S.G. § 5K1.1 pursuant to a plea agreement, undercut their promised recommendation by noting that the defendant had already "earned his reward" by being charged with a lesser offense and by introducing victim impact statements, both of which arguments the district court relied upon in denying defendant a cooperation departure.

3. Negotiations with Defendant in Absence of Counsel

The Ninth Circuit affirmed a departure based on the government having entered into plea negotiations with defendant in the absence of counsel. United States v. Lopez, 106 F.3d 309, 311 (9th Cir. 1997) (as the result of the government's conduct the defendant's opportunity for full and fair plea negotiations was seriously affected and made him believe he had no choice but to go to trial).

4. Subsequent Prosecution

The Eighth Circuit, in a case of first impression, has held that a district court may consider, for the purpose of downward departure, a situation where a defendant enters into a plea bargain and is later prosecuted for non-criminal conduct known to the government at the time of the plea bargain. United States v. Paton, 110 F.3d 562, 565-66 (8th Cir. 1997).

5. Substantial Assistance with State and Local Authorities

In United States v. Kaye, __ F.3d __, 1998 U.S. App. Lexis 5127 at *3-9 (2d Cir. Mar. 16, 1998), the Second Circuit reversed the district court, ruling that a defendant's assistance to state and local authorities could form the basis for a downward departure as it was not covered under U.S.S.G. § 5K1.1.

R. Post-Offense Rehabilitation

In the post- Koon era, many circuits have either reversed their earlier decisions or have newly held that in exceptional circumstances, post-offense rehabilitation efforts can serve as a basis for downward departure. The Fourth Circuit, in United States v. Brock, 108 F.3d 31 (4th Cir. 1997), was the first Circuit to address a defendant's exceptional rehabilitation efforts as a possible basis for downward departure. In Brock, the appellate panel concluded that, in light of Koon, existing precedent should be overruled and sentencing courts could consider post-offense rehabilitation for purposes of downward departure. Id. at 34. The Brock panel cited Koon for the proposition that a particular factor cannot be categorically excluded as a basis for departure unless the Guidelines specifically prohibit departure on such a basis. Id. (reversing earlier precedent on the issue and holding that "extraordinary or exceptional efforts at rehabilitation could possibly constitute a proper basis for consideration of a downward departure").

Other Circuits have subsequently addressed, in some cases for the first time, the issue of whether a defendant's extraordinary rehabilitative efforts could serve as the basis for a downward departure. In light of Koon, some Circuits have held as a matter of law that exceptional post-offense rehabilitation may be evaluated by the sentencing court for determining whether a downward departure is warranted. See United States v. Kapitzke, 130 F.3d 820, 824 (8th Cir. 1997) (finding that a defendant's exceptional efforts at post-offense rehabilitation efforts may justify a downward departure); United States v. Core, 125 F.3d 74, 75-76 (2d Cir. 1997) (holding that because a defendant's post-offense rehabilitation from narcotics addiction was a factor not adequately considered in the Guidelines, it was a permissible basis for downward departure), cert. denied, 118 S. Ct. 735 (1998); United States v. Sally, 116 F.3d 76, 77 (3rd Cir. 1997) (concluding that a district court has the authority to depart downward based on extraordinary or exceptional post-conviction rehabilitation efforts where the defendant has made "real, positive behavioral change"); United States v. Jaroszenko, 92 F.3d 486, 491 (7th Cir. 1996) (despite the guidelines discouragement of the factor, remanding for further review because district court had improperly decided it could not depart for defendant's remorse); United States v. Janusz, 986 F. Supp. 328, 1997 U.S. Dist. Lexis 19981 at *4-7 (D. Md. Nov. 24, 1997) (holding that defendant's acceptance of responsibility was exceptional enough to take it out of the "heartland" where the defendant voluntarily: resigned from her job shortly after being confronted with her conduct; provided all of the details of her embezzlement scheme to bank officials and the FBI; made full restitution, with interest, within 30 days after her embezzlement scheme was uncovered; and undertook intensive counseling and rehabilitative therapy); United States v. Dyce, 975 F. Supp. 17, 20 (D.D.C. 1997) (refusing to apply pre- Koon precedent and holding that downward departure was warranted on grounds of extraordinary post-offense and post-conviction rehabilitation); United States v. Griffiths, 954 F. Supp. 738, 743 (D. Vt. 1997) (allowing as a new basis for downward departure a defendant's extraordinary rehabilitative efforts and concluding that the progress the defendant had made during the nineteen months before sentencing would be "utterly frustrated" by incarceration); United States v. Shaskey, 939 F. Supp. 695, (D. Neb. 1996) (extensive rehabilitation for police officer sex offender).

S. Pretrial Detention Conditions

1. Non-Deportable Alien Cases

In United States v. Brinton, __ F.3d __, 1998 U.S. App. Lexis 5100 at *19-20 (9th Cir. Mar. 19, 1998), the Ninth Circuit questioned the district court's downward departure of thirty months for defendant's two and one half month stay in state custody prior to transfer to a federal facility. The court did not reverse because the government failed to object below. A district court judge in the Third Circuit has signaled a willingness to grant downward departures in cases that fall outside the heartland based on a defendant's pretrial detention conditions. The district court in United States v. Sutton, 973 F. Supp. 488 (D.N.J. 1997), stated that a defendant's "pretrial detention in substandard conditions can have a punitive effect" and in those circumstances a sentencing court should have the ability to grant a downward departure based on atypical pretrial detention conditions. Sutton at 493 (declining to depart downward because of a lack of evidence but reasoning that a sentencing court could, as a matter of law, consider the condition of a defendant's pre-trial confinement as a possible basis for departing downward). See also, United States v. Booher, 962 F. Supp. 629., 636 (D.N.J. 1997) (declining to depart due to deplorable prison conditions because, among other things, relief from such conditions is available through other means); United States v. Miranda, 979 F. Supp. 1040, 1997 U.S. Dist. Lexis 14783 at *14-17 (D.N.J. Sept. 26, 1997) (defendant was only subjected to the pretrial confinement conditions for 100 days).

T. Restitution\Civil Forfeiture

The Fourth Circuit has held that extraordinary restitution can provide a basis for downward departure. United States v. Hairston , 96 F.3d 102 (4th Cir. 1996) , cert. denied, 117 S. Ct. 956 (1997) (reversing a sentencing court's downward departure based on the fact that the defendant's restitution was not extraordinary but not upon a legal conclusion that restitution can never be grounds for a downward departure). In Hairston, the panel stated that "although [restitution is] taken into account in the guideline permitting a reduction for acceptance of responsibility, it can provide a basis for a departure when present to such an exceptional degree that it cannot be characterized as typical or usual. Id. at 108. However, the Fourth and Eleventh Circuits have held that civil forfeiture can never be the basis for a downward departure. See United States v. Hoffer, 129 F.3d 1196, 1203-04 (11th Cir. 1997); United States v. Weinberger, 91 F.3d 642, 645 (4th Cir. 1996).

U. Sentencing Factor Manipulation

In United States v. Martinez-Villegas, __ F. Supp. __, 1998 U.S. Dist. Lexis 1450 at *23-29 (C.D.CA. Feb 2, 1998) the district court departed because while defendants may have been predisposed to transport five to ten kilograms of cocaine, law enforcement officials controlled negotiations and manipulated the price to encourage defendants to agree to transport ninety-two kilograms. Manipulation occurs because "[drug enforcement agents can decide, apparently, without any supervision, to negotiate for any quantity of drugs."Id. at 28. As an additional factor for a separate departure, the district court found that the government's "aggressive encouragement" of the crime amounted to coercion and "imperfect entrapment." Id. at 29-33. In United States v. Kaczmarki, 939 F. Supp. 1176, 1180-82 (E.D. Pa. 1996), aff'd without op., 114 F.3d 1173 (3d Cir.), cert. denied, 118 S. Ct. 251 (1997), the court implicitly recognized "sentencing factor manipulation" as a viable basis for downward departure in fraud cases but declined to exercise its departure discretion (rejecting defendant's claim that it is unfair in bank fraud case to impose "loss" enhancement because the amount was entirely within the control of the cooperating witness and agents). See also, United States v. Webb, 134 F.3d 403, 1998 U.S. App. Lexis 1430 at *16 (D.C. Cir. Feb. 3, 1998) the District of Columbia Circuit reversed the district court's departure for "sentencing manipulation" on the facts of this case where undercover agents bought crack from defendant twice in small quantities before arresting and charging him for a third, much larger sale); United States v. Nolan-Cooper, 957 F. Supp. 647, 667 (E.D. Pa. 1997) (fact that government controlled the amount of money which defendant laundered did not warrant departure for sentencing manipulation).

V. Taxes

The First Circuit held that a temporary delay in payment of taxes where the defendant intended to pay is not a "typical" or "heartland" case of tax evasion. United States v. Brennick, __ F.3d __, 1998 U.S. App. Lexis 876 at *8-9 (1st Cir. Jan. 20, 1998) (departure upheld where, although the defendant deliberately failed to pay the government withheld wages and social security taxes at the time they were due, he genuinely intended to pay them back in the near future).

W. Time Served on Similar State Conviction

In United States v. O'Hagan, __ F.3d __, 1998 U.S. App. Lexis 6462 at *43-45 (8th Cir. Apr. 1, 1998), the Eighth Circuit upheld a departure based upon time served for a state conviction on the same series of offenses as the instant federal charges; following the reasoning of the Seventh Circuit in United States v. Blackwell, 49 F.3d 1232, 1242 (7th Cir. 1995) and not the Fourth Circuit in United States v. McHan, 101 F.3d 1027, 1040 (4th Cir. 1996), cert. denied, 117 S.Ct. 2468 (1997).

X. Vulnerability to Abuse

In United States v. Ruff, __ F. Supp. __, 1998 U.S. Dist. Lexis 3656 *16-33 (M.D. Al. Mar. 20 1998), the district court granted a one level downward departure because the defendant was 5'5' 155lbs, of slight build, openly gay, effeminate, performed in the past as a female impersonator, and a survivor of childhood sexual abuse rendering him more likely to be a victim in prison. See also, United States v. Wilke, __ F. Supp. __, 1998 U.S. Dist. Lexis 1618 at *7-8 (N.D. Il. Jan. 30, 1998) (granting downward departure for defendant's vulnerability because he was homosexual, had a passive and meek demeanor, and was convicted of possessing sexually explicit magazines and videos of minors).

Y. Totality of Circumstances\Combination of Factors

Some courts following the Koon decision have upheld departures for outside the "heartland" cases where a combination of discrete factors was itself a sufficiently unique departure circumstance. See United States v. Delgado, __ F. Supp. __, 1998 U.S. Dist. Lexis 1921 at *5-7 (E.D.N.Y. Feb. 19, 1998) (individually and in combination, the factors of duress, aberrant behavior, diminutive size and meek demeanor, and defendant's exceptionally difficult life, created reason for departure); United States v. Martinez, 978 F. Supp. 1442, 1997 U.S. Dist. Lexis 16454 at *25-30 (D.N.M. Oct. 22, 1997) (defendant's age, mental and emotional condition, employment record, family ties, and employment related contributions remove the case from the "heartland);United States v. Dyce, 975 F. Supp. 17, 22 (D.D.C. 1997) (holding that a "combination of factors" including family circumstances, post-offense rehabilitation and medical problems formed the basis for departure);United States v. Griffiths, 954 F. Supp. 738, 741 (D. Vt. 1997) (declaring that a "totality of the circumstances" provides a basis for downward departure in case involving defendant who is first-time offender, young, attractive and extraordinarily sensitive man who might be victimized in prison); United States v. Shaskey, 939 F. Supp. 695, 696-700 (D. Neb. 1996) (applying Koon methodology to grant "outside the heartland" departure based on defendant's susceptibility to abuse in prison and extraordinary rehabilitative efforts). But see, United States v. Ramos-Oseguera, 120 F.3d 1028, 1040-41 (9th Cir. 1997) (remanding for separate findings on each of three potential departure grounds because the district court had collapsed the three grounds into only one departure), cert. denied, 118 S.Ct. 1094 (1998).

IV. Conclusion

The Koon decision provides the legal foundation and impetus for the exercise of greater discretion by district court judges who were angry and frustrated by the constraints they perceived the guidelines previously placed on their sentencing power. Defense attorneys can cite Koon to persuade sentencing judges that courts now have more discretion in fashioning fair and just sentences. District courts should be reminded that the Court recognized in Koon that district courts, rather than appellate courts, are in the best position to make departure determinations. Since Koon held that only the Sentencing Commission could designate factors where departures are never warranted it can now be argued that any prior cases holding that a factor could never justify departure are no longer good law unless the factor is "forbidden" in the guidelines. Koon, 116 S. Ct. at 2044-45.

Similarly, because consideration of the factor cannot be absolutely foreclosed, it can still be argued that a factor is present to a greater degree or in a different way than in a previous case. Since Koon established an abuse of discretion standard for reviewing departures it can be argued that any previous appellate decisions decided on a standard of review inconsistent with the abuse of discretion standard are also no longer good law (e.g. prior cases employing de novo review).

In the aftermath of Koon many of the substantive areas concerning downward departures are open for reconsideration. Although it is still too early to determine the scope of Koon's impact, it seems likely that departures from the guidelines will increase as a result of that decision. Consequently, the decision provides an opportunity for defense attorneys to reexamine departure law, develop creative arguments, and to provide new ammunition to encourage district court judges to grant downward departures and for protecting those decisions on appeal.

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In the amendment Congress directed the courts of appeals to "give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e)(4).