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Let Judges Be Judges: — Post-Koon Downward Departures: Part 5 — Combination of Factors

Criminal Justice, Winter 1999

Despite the Supreme Court’s decision in Koon v. United States, 518 U.S. 81(1996), which empowered federal judges to be creative in finding grounds for departure, there will still be many times that a judge simply feels that one factor standing alone does not warrant departure.

For example, a court may find that a defendant was suffering from diminished capacity under U.S.S.G. § 5K2.13, but determine that although the defendant’s mental disorder contributed to the commission of the offense, the extent of the disorder was not such that it warranted a downward departure.

In such a case, however, the court may still depart downward if it finds another factor or factors that, while providing the court with the authority to depart, may not-standing alone-persuade the court to exercise its discretion and grant a sentence reduction.Ý In such cases, counsel and the court can still rely on the “combination of factors” ground for downward departure.

Effective November 1, 1994, the Sentencing Commission added a paragraph to the Commentary to U.S.S.G. § 5K2.0 authorizing a downward departure based on a combination of factors:

The Commission does not foreclose the possibility of an extraordinary case that, because of a combination of such characteristics or circumstances, differs significantly from the “heartland” cases covered by the guidelines in a way that is important to the statutory purposes of sentencing, even though none of the characteristics or circumstances individually distinguishes the case. (Emphasis added.) Before this amendment was adopted, several circuits had authorized downward departures based on a combination of factors, none of which standing alone would have justified a departure. (U.S. v. One Star, 9 F.3d 60, 61 (8th Cir. 1993) (affirming departure for a combination of factors “the unusual mitigating circumstances of life on an Indian reservation”); United States v. Koon, 34 F.3d 1416, 1452 (9th Cir. 1994) (recognizing, in the Rodney King beating case, that “unique combination of factors” could constitute a basis for downward departure, but reversing the departure here), aff’d in part and rev’d in part, remanded, Koon v. United States, 518 U.S. 81 (1996); U.S. v. Hines, 26 F.3d 1469 (9th Cir. 1994) (upholding departure for “convergence of factors,” but remanding as to extent); U.S. v. Cook, 938 F.2d 149, 153 (9th Cir. 1991) (“a combination of factors [may] together constitute a ‘mitigating circumstance”‘); U.S. v. Bowser, 941 F.2d 1019, 102-25 (10th Cir. 1991) (upholding departure from career offender guideline on “unique combination of factors,” none of which would have warranted departures by themselves); United States v. Sklar, 920 F.2d 107, 117 (1st Cir. 1990) (the convergence of factors that might be “inadequate to warrant departure when taken in isolation, may … in combination suffice to remove a case from the heartland….”).) As one court has recently explained:

Because the Commission operates at a distance from individual cases, there is an inevitable clumsiness in its guidelines. Even with all their complexity, the guidelines do not and can not counsel all of the factors, and combinations of factors that are possibly considered in sentencing. The departure mechanisms acknowledge this.

(United States v. Gonzalez-Bello, 10 F. Supp. 2d 232 (E.D.N.Y. 1998).)Ý Since the amendment and post-Koon, the combination of factors downward departure has been credited with approval by at least one circuit, United States v. Rioux, 97 F.3d 648 (2d Cir. 1996) (upholding downward departure based on physical condition and charitable acts), as well as various district courts, see, e.g., United States v. Jackson, 14 F. Supp. 2d 1315 (N.D. Ga. 1998) (“when considered with the other factors present in this case [defendant’s physical ailments], [defendant’s] service to his country and community support a downward departure from the Guidelines,” even though “[c]onsidered alone, his actions in this regard are not extraordinary); United States v. Bennett, 9 F. Supp. 2d 513 (E.D. Pa. 1998) (“three grounds … were found, either separately or in combination, to support and justify a downward departure”: civic, charitable, and public service, extraordinary cooperation and restitution, and a hybrid of diminished capacity and mental and emotional conditions).

A “combination of factors” departure is often bullet-proof. So long as a judge doesn’t rely on a prohibited factor, e.g., race, sex, national origin, creed, religion, socioeconomic status and disadvantaged upbringing, which are never grounds for sentencing outside the guidelines, the decision should survive appellate scrutiny. Rarely will a lower court pinpoint how much weight it was giving each factor in fashioning the overall combination of factors. Nor is it required by the appellate courts to do so. Rather, should a reviewing court determine that the district court based its departure on a combination of permissible and impermissible factors, it must decide “whether the district court would have imposed the same sentence had it not relied upon the invalid factor or factors.” (United States v. Hemmingson, Nos. 97- 30552, 97-30598, 1998 U.S. App. LEXIS 24490, at (5th Cir. September 28, 1998) (quoting Williams v. United States, 503 U.S. 193, 203 (1992).) It is only where the appellate court concludes that the sentencing would have been different that it must remand for resentencing. (Id.) The question is whether the judge is amenable to a lower sentence than one called for by the guidelines. If so, “combination of factors” is a way to get there.


The author wishes to thank Wayne Anderson, an associate of the firm’s California office and former staff lawyer in the United States Courts of Appeals for the Second and Ninth Circuits, who contributed to this article. Anderson has worked closely with many Ninth Circuit judges on a variety of appellate matters, including direct criminal appeals, section 2255 motions, and applications for bail. He is a member of both the California and New York bars.[/vc_column_text][/vc_column][/vc_row]

The Law Offices of Alan Ellis specializing In Federal Sentencing, Appeals, 2255 Habeas Corpus