United States v. Reginald Coleman

MERRITT, Circuit Judge,

concurring.

■ I concur in the opinion of Judge Jones for the Court which holds that the conduct of the agent in this case may be taken into account by the District Court in considering a downward departure. We do not hold that a downward departure is necessary, only that the District Court may consider such governmental conduct in arriving at its sentence.

Surely, if entrapment may be considered under Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), then similar administrative conduct that seeks to induce certain parolees to commit further crimes may also be considered in the sentencing potpourri. In the Koon case, the Supreme Court instructed lower courts to change the narrow, cramped method of considering downward departures that has prevailed in many courts in the past, including the Sixth Circuit. The Court flatly rejected the government’s persistent, constipated condition on downward departures and provided a laxative that returns the concept back to the broader meaning that Justice Breyer and other drafters of the Guidelines had in mind in the first place. The somewhat irate tone of the dissent should be directed at the Supreme Court’s rejection of the government view, not to Judge Jones’ opinion, which faithfully follows the language and spirit of Koon.

The following language from Koon obviously means that a District Court may consider government conduct .in the sentencing calculus on downward departures.

The Guidelines, however, “place essentially no limit on the number of potential factors that may warrant departure.” Burns v. United States, 501 U.S. 129, 136-137, 111 S.Ct. 2182, 2186, 115 L.Ed.2d 123 (1991). The Commission set forth factors courts may not consider under any circumstances but made clear that with those exceptions, it “does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.” 1995 U.S.S.G. ch. I, pt. A, intro, comment. 4(b). Thus, for the courts to conclude a factor must not be considered under any circumstances would be to transgress the policy-making authority vested in the Commission.

We conclude, then, that a federal court’s examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the Commission has proscribed, as a categorical matter, consideration of the factor. If the answer to the question is no-as it will be most of the time-the sentencing court must determine whether-the factor, as occurring in the particular circumstances, takes the case outside the heartland of the applicable Guideline.

518 U.S. at 106-09, 116 S.Ct. at 2050-51.