                                       Revised May 11, 1999

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE FIFTH CIRCUIT



                                            No. 98-60181



UNITED STATES OF AMERICA,
                                                                                   Plaintiff-Appellant,

                                                versus

TERRY LYNN WINTERS,
                                                                                  Defendant-Appellee.



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


                                            April 23, 1999

Before GARWOOD, BARKSDALE and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

       Winters was convicted of violations of 18 U.S.C. § 242 (depriving an individual of his civil

rights under color of law), 18 U.S.C. § 924(c) (use of a firearm during and in relation to a crime), and

18 U.S.C. § 1503 (obstruction of justice). The district court departed downward from the United

States Sentencing Guidelines at sentencing. The government appealed. This court held that the

district court abused its discretion in sentencing Winters, vacated the sentence, and remanded for re-

sentencing. The district court again departed downward from the guidelines, this time listing different

reasons for departure. The government again appeals the sentence. For the reasons stated herein,
we vacate the sentence and remand for resentencing.

                            Factual Background and Procedural History

       This appeal revisits the sentence of Terry Lynn Winters (Winters), which this court first

reviewed in United States v. Winters, 105 F.3d 200 (5th Cir. 1997). Winters was a correctional

officer at the Mississippi State Penitentiary at Parchman, Mississippi (Parchman). At the time of his

arrest, Winters had worked for Parchman for fifteen years.

       In November 1991, inmate Larry Floyd escaped from Parchman in a stolen vehicle. Floyd

wrecked the vehicle and sustained injuries which left blood around the vehicle. The following day

Floyd was captured at an abandoned house. Several officers beat Floyd after he was handcuffed

despite the absence of resistance on his part. The officers then placed Floyd in a truck for return to

the prison. During the trip, Winters squatted over Floyd and hit him several times forcefully on the

head with his service revolver knocking him unconscious. A small artery in Floyd’s head was severed

by the head blows resulting in profuse bleeding. The Parchman staff physician testified that the

wound on Floyd’s head was consistent with “the type of wound that might result from a blow by a

gun barrel.”

       A federal grand jury investigated the incident. The grand jury subpoenaed Robert McKnight

to testify. McKnight was also a Parchman officer who had also participated in the capture and

beating of Floyd. Winters was McKnight’s superior officer. The night before McKnight was to

testify, Winters and another officer visited McKnight and pressured him to testify falsely.

       The grand jury indicted Winters and four others for various federal offenses. Winters was

convicted of deprivation of a person’s civil rights under color of law (18 U.S.C. § 242), use of a

firearm during and in relation to a crime (18 U.S.C. § 924(c)), and obstruction of justice (18 U.S.C.


                                                  2
§ 1503).

        Under the United States Sentencing Guidelines, (USSG or guidelines), a violation of 18

U.S.C. § 924(c) (use of a firearm during a crime) carries a mandatory minimum sentence of sixty

months’ imprisonment.       Winters faced an additional 108 - 135 months’ imprisonment for the

convictions under 18 U.S.C. § 242 (deprivation of civil rights) and 18 U.S.C. § 1503 (obstruction of

justice). The guidelines also required a fine ranging from $20,000 - $200,000, two to three years of

supervised release, and a $150 special assessment.

        The court departed downward from the guidelines. The court sentenced Winters to the

mandatory sixty months for the firearms charge. The sixty months would be served consecutively

with an additional twelve months for each of the other two convictions (to be served concurrently).

Thereafter Winters was sentenced to three years supervised release, a $2000 fine and a $150 special

assessment.

        The go vernment appealed Winters’ sentence. As a preliminary matter, this court had to

determine on what grounds the district court based the departure. The government argued that the

district court based its decision on three grounds, and asked this court to declare each reason an

improper basis for departure. Those grounds were: (1) that Winters’ act was a “single act of aberrant

behavior;” (2) Winters’ distinguished record of service as a correctional officer; and (3) an

institutional norm that a prisoner who escaped would be beaten upon recapture. A panel of this court

disagreed with the government’s interpretation of the sentencing colloquy. It found that the district

court justified its departure on the sole ground that Winters’ act was a single act of aberrant behavior,

which was inconsistent with his prior service and high virtues. See Winters, 105 F.3d at 206.

        The panel found that the district court’s interpretation of Winters’ actions was unsupported


                                                   3
by the record. See id. at 207 (“A single act of aberrant behavior can be an appropriate basis for a

downward departure. . . . However, such a single act is not implicated by Winter’s conduct.”).

Therefore this court vacated Winters’ sentence and remanded for re-sentencing.



        In February 1998, the district court again notified the government that it would depart from

the guidelines. This time, the district court listed its grounds as (1) a “Correctional Officer’s High

Susceptibility to Abuse in Prison” and (2) the “Mandatory and Consecutive 5-year Term of

Imprisonment on Count 5 [the gun charge] results in an Excessive Term of Imprisonment.” The

government timely objected to the departure. Based on the aforementioned grounds for departure,

the district court sentenced Winters to the same sentence as before. The government again appeals

Winters’ sentence.

                                              Discussion

        The government raises three issues in this appeal. First, the government contends that the

district court abused its discretion by departing downward on the basis that Winters faces a

mandatory 60 month term for the gun charge. Next, the government explains that the district court

abused its discretion when it offered Winters’s status as a correctional officer as basis for a downward

departure. Finally, the government urges this court to reassign this case to a different judge.

A.      Abuse of Discretion

        This court reviews a district court’s departure fro m the sentencing guidelines for abuse of

discretion. See Koon v. United States, 116 S.Ct. at 2035. “[W]hether a factor is a permissible basis

for departure under any circumstances is a question of law and the court of appeals need not defer

to the district court’s resolution of that point.” See Koon, 116 S.Ct. at 2047. However, this review


                                                   4
is still included under the abuse of discretion standard. See id. (“A district court by definition abuses

its discretion when it makes an error of law.”).

        A district court’s determination whether to depart from the guidelines is entitled to substantial

deference, “for it embodies the traditional exercise of discretion by a sentencing court.” See Winters,

105 F.3d at 204. This is due primarily to the particular competence of trial courts in determining

whether a particular case is ordinary or unusual, as compared to the vast majority of other cases.1

See id., discussing Koon, 116 S.Ct. at 2047.

        However, a district court cannot depart from the guidelines unless it first finds, on the record,

that facts or circumstances of a case remove that case from the “heartland” of typical cases

encompassed within the guideline. See Winters, 105 F.3d at 205; United States v. Harrington, 82

F.3d 83 (5th Cir. 1996) (court must articulate acceptable reasons for departure on the record and

departure must be reasonable).

        The Guidelines Manual explains that it intends each guideline to create a heartland of typical

cases. See Guidelines, ch.1, pt. A. See also Koon, 116 S.Ct. at 2044. A court should not depart

from the guidelines unless it finds that conduct in a particular case “significantly differs from the



       1
         The dissent chides the majority for failing to give substantial deference to the district court
judge who presided o ver the trial and has “extensive judicial service and experience, especially in
matters regarding the penitentiary.” The dissent’s emphasis on the trial judge’s experience amounts
to the proverbial red herring. The vast experience and legal acumen of the district judge is beyond
dispute and nothing in the majority’s opinion suggests otherwise.
        We simply part company with the dissent’s notion that a district judge’s sentencing decisions
are virtually impervious from appellate review. Substantial deference has never been synonymous
with carte blanche approval of a sentencing judgment in the face of legal error. Indeed, when
reviewing the basis for a downward departure, our function as a court of appeals would be rendered
superfluous if “substantial deference” operated as a talisman designed to ward off the scrutiny of this
court.


                                                   5
norm,” and takes the case outside this heartland. Id. Put another way, a sentencing court may depart

“if it finds <unusual circumstances’ that render the guideline level attached to a specific factor

insufficient.” See United States v. Caldwell, 985 F.2d 763 (5th Cir. 1993), citing USSG § 5K2.0,

18 U.S.C. § 3533(b).

       Additionally, the guidelines either forbid, discourage, or encourage several factors as bases

for departure. See id; See USSG § 5H1. Forbidden factors, such as race, sex, and national origin,

may never be considered by a sentencing court. See § USSG 5H1.10. Discouraged factors, including

employment records and family ties, are considered “not ordinarily relevant” and may only be

considered “in exceptional cases.” See USSG § 5H1.5, ch.5, pt. H; Koon, 116 S.Ct. at 2045.

       Alternatively, a sentencing court may depart from the guidelines if “it finds an aggravating

or mitigating circumstance that was not adequately taken into consideration by the Sentencing

Commission in formulating the sentencing guidelines.” See id. To determine whether a circumstance

was adequately considered by the Commission, courts may “consider only the sentencing guidelines,

policy statements, and official commentary of the Sentencing Commission.” United States v. Koon,

116 S.Ct. 2035, 2044 (1996), quoting 18 U.S.C. § 3553(b).

       1.      Mandatory 60 Month Gun Charge As Basis for Departure

       The district court determined that in light of the mandatory sixty month sentence required for

the gun charge, following the guidelines on the other charges would impose too harsh a sentence.

Therefore, the district court departed downward from the guidelines on the sentences for the civil

rights and obstruction of justice charges.

       No permissible basis for departure was provided by the gun charge. In United States v.

Caldwell, this court considered whether the fact that a defendant faced a mandatory minimum


                                                 6
sentence for the use of a firearm during a crime, pursuant to 18 U.S.C. § 924(c), could justify a

downward departure from the guidelines for the underlying crime. See United States v. Caldwell,

985 F.2d 763, 764-65 (5th Cir. 1993). It cannot.

       The defendant in Caldwell had been caught exchanging drugs in a hotel room , where law

enforcement officers found a gun. See Caldwell, 985 F.2d at 764. Caldwell pleaded guilty to a drug

offense and to the use of a firearm in the commission of that crime (pursuant to 18 U.S.C. § 924(c)).

See id. The district court noted that the gun charge carried a mandatory minimum sentence of sixty

months’ imprisonment. See id. The district court determined that, because the gun played only a

minimal role in the crime, following the guidelines on the drug offense would result in an unduly harsh

sentence. See id. Since the court was not able to depart downward on the gun charge, the court

departed downward from the guidelines on the underlying drug offense. See id.

       This court reversed. See id. at 765. The guidelines permit departure only where a mitigating

or aggravating factor is not adequately taken into consideration by the guidelines themselves. See

id. In the case of a § 924(c) charge, however, “the guidelines do consider the interplay of § 924(c)

and themselves.” See id. As we previously explained, the guidelines specifically control the

sentencing of defendants convicted under § 924(c) and the underlying offense. See id. See also

USSG § 2K2.4 (limiting additional offense-specific enhancement for use or possession of a weapon

where a defendant has also been sentenced under § 924(c)). Furthermore, the guidelines anticipate

that the underlying offense level will already be reduced when there is a separate gun charge because

the underlying offense-level will not include any applicable weapons enhancement.2 Accordingly, the


       2
        See id., Application Note 4.
               “Where there is also a conviction for the underlying offense, a
               consolidated fine guideline is determined by the offense level that

                                                  7
defendant in Caldwell had not been sent enced to an additional weapon enhancement for his

underlying drug offense.

       The Sentencing Commission thoroughly considered the interplay of the mandatory minimum

sentence for use of a firearm with the sentence guidelines for the underlying crimes. The guidelines

prohibit a court from departing from the guidelines based on a factor that the Sentencing Commission

considered in formulating the guidelines. See Caldwell, 985 F.2d at 765. Therefore, this court held

as a matter of law that a mandatory minimum sentence under 924(c) cannot justify a downward

departure for the underlying offense. See id.

       Under Caldwell, therefore, the mere fact that Winters faced a sixty-month minimum sentence

on the gun charge cannot by itself justify a departure from the guidelines. Thus, the district court’s

departure was allowable only if unusual circumstances remove this case from the heartland of cases

contemplated by the guidelines.

       The district court determined that this is an unusual case for which t he guidelines are

inadequate. First, the court noted that Winters lawfully possessed his weapon. See id. The court

recognized that Winters’ lawful possession of the gun was not sufficient grounds for departure, but

stated that it added to the totality of the circumstances calling for departure. Id. at 28. Second, the

court recognized the fact that Winters’ was a law enforcement officer, and noted his service record.

“Let me inject this. If ever there has been an unusual case under the guidelines it is that this 15-year



               would have applied to the underlying offense absent a conviction 18
               U.S.C. § 844(h), § 924(c), or § 929(a). This is required because the
               offense level for the underlying offense may be reduced when there is
               also a conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a) in
               that any specific offense charact eristic for possession, use, or
               discharge of a firearm is not applied. . . . “

                                                   8
veteran of law enforcement with the Department of Corrections who, the evidence shows, had an

unblemished record and who exhibited this type of behavior.” See id. at 29.

        A district court’s determination of what is a usual or unusual case is entitled to substantial

deference. See Koon, 116 S.Ct. 2035. However, the district court offered no facts which

differentiate this case from any other case in which a law enforcement officer uses excessive force or

obstructs justice.

        Instead, the district court found this case extraordinary primarily because of Winters’ personal

characteristics. Personal traits such as those relied upon by the district court are not proper bases for

departures from the guidelines. See Winters, 105 F.3d at 206. See also United States v. O’Brien,

18 F.3d 301, 303 (5th Cir. 1994) (holding that departure based on assessment of defendant’s good

character is inconsistent with guidelines); Harrington, 82 F.3d at 88 (recognizing that a defendant’s

personal characteristics are not usually acceptable grounds for departure).

        For example, Winters’ status as a correctional officer and his fifteen year service history do

not provide proper grounds for departure. Employment status and records of civic or public service

are discouraged factors under the guidelines, and can therefore be grounds for departure only in

exceptional cases. See USSG § 5H1.5, 11. The fact that Winters’ worked for the prison system for

fifteen years surely does not by itself take Wint ers out of the “heartland” of officers normally

convicted of violating an inmates’ civil rights. See also United States v. Rybicki, 96 F.3d 754, 758

(4th Cir. 1996) (Vietnam Veteran with 20 years military service and responsibilities to mentally ill

wife and sick son did not present “exceptional” case).

        Furthermore, Winters’ status as a correctional officer is closer to an aggravating factor rather

than a mitigating one. See Winters, 105 F.3d at 207. Winters’ status as a corrections officer


                                                   9
necessarily meant that the criminal conduct - which took place in his capacity as a corrections officer -

constituted an abuse of a public position. The guidelines specifically state that crimes involving the

abuse of public trust may be considered aggravating - not mitigating - factors. See id., citing USSG

§ 3B1.3. See also Winters, 105 F.3d at 207 (“[T]he Commission considered criminal acts committed

by government agents to require a firmer response in order to prevent them.”).

        The guidelines also discourage departures based on family ties and responsibilities. See USSG

§ 5H1.6. Accordingly, courts should only depart from the guidelines on these bases in rare or

exceptional cases. See id. There is no evidence that Winters’ family will suffer any more than any

family suffers when one member is sentenced to prison. See Harrington, 82 F.3d at 89; United States

v. Kapitzke, 130 F.3d 820 (8th Cir. 1997) (“[T]he disintegration of existing family life or relationships

. . . is to be expected when a family member engages in criminal activity that results in a period of

incarceration.”), citing United States v. Canoy, 38 F.3d 893, 907 (7th Cir. 1994). Thus, Winters’

family ties do not present a valid basis for departure.

        The district court held that all these factors should be taken into consideration together, to

take them outside the heartland of the guidelines. Indeed, the district court seems to have felt that

the severe punishment required by the guidelines in this case didn’t fit the crime. See R.E. Tab 6

p.257 (“The facts in this case do not warrant a sentence within the applicable guideline’s range for

counts 4 and 9 PLUS an additional 5-year mandatory and consecutive term of imprisonment on count

5.”). The Sentencing Commission recognized that such a case might occur, where several otherwise-

insufficient factors combined to justify a departure. See Commentary accompanying § 5K2.0.

However, the Commission stated such cases would be “extremely rare.”




                                                   10
        This is not such an extremely rare case. Moreover, the district court has not articulated

“relevant facts and valid reasons” demonstrating why this case is extraordinary or even unusual in

comparison to other cases under the guideline. See Winters, 105 F.3d at 208. Once again “the

district court’s reasoning fails to cite the compelling facts necessary to satisfy the very high standard

for this type of departure from the Guidelines.” See id. Therefore, the district abused its discretion

in departing from the guidelines.

        2.      Status as Correctional Officer as Basis for Departure

        The district court’s second basis for departure was the fact that Winter’s status as a

corrections officer makes him highly susceptible to abuse in prison. Winters had been an officer in

Mississippi prisons for over fifteen years when the incident occurred. During that time, the district

court reasoned, he had met many prisoners. Some of these prisoners would now likely be in federal

prison. Those prisoners would know that Winters had been a corrections officer. The district court

determined that this circumstance justified a departure based on Winters’s apparent high susceptibility

to abuse by other prisoners.

        In Koon, the United States Supreme Court held that the district court properly considered the

defendants’ particular susceptibility to abuse in prison as a basis for a downward departure. See id.

However, Koon was an extreme case and no facts remotely similar to it are present here. Koon

involved the sentencing of the Los Angeles Police Department officers convicted of beating Rodney

King. The district court found that the “extraordinary notoriety and national media coverage of this

case, coupled with the defendants’ status as po lice officers, make Koon and Powell unusually

susceptible to abuse in prison.” See Koon, 116 S.Ct. at 2053.




                                                   11
       Any attempt to compare this case to the Rodney King incident is unavailing. A few stories

in a local or state-wide newspaper cannot compare to the national outrage emanating from the beating

of Rodney King, not to mention the subsequent riots. The notorious circumstances involved in Koon

and the identity of the officers involved received such sust ained national media coverage as to

permeate prison facilities nationally. There is no record evidence to show that the instant event was

reported beyond the local area of its occurrence. Winters argues that this case is unique because he

was a corrections officer accused of beating an inmate. However, his situation is not outside the

heartland of cases in which a law enforcement officer is accused of using excessive force or violating

a person’s civil rights under color of law.

       Koon does not create a general rule that a defendant’s status as a police officer can justify a

downward departure. In United States v. Rybicki, 96 F.3d 754 (4th Cir. 1996) the Fourth Circuit

considered whether a defendant’s status as a law enforcement officer can, by itself, justify a

downward departure based on “disproportionate problems” suffered by incarcerated police officers.

See Rybicki, 96 F.3d at 758. That court determined that allowing such a general rule suggests that

“law enforcement officers, as a class, are entitled to more favorable treatment under the Sentencing

Guidelines.” See id. The court found no indication that either Congress or the Sentencing

Commission intended to treat law enforcement officers more favorably than other defendants. See

id. Therefore, the Fourth Circuit held that a defendant’s mere status as a law enforcement officer

cannot justify a downward departure. See id.

       Like Rybicki, the district court offered no compelling reasons why Winters is any more

susceptible to abuse in prison than any other corrections officer sentenced to prison. Compare United

States v. Long, 977 F.2d 1264, 1278 (8th Cir. 1992) (allowing departure where defendant’s frail


                                                 12
health left him "exceedingly vulnerable to possible victimization and resultant severe and possibly fatal

injuries.") with United States v. Russell, 156 F.3d 687, 694 (6th Cir. 1998) (defendant’s deafness did

not leave him vulnerable to attack as in Long). Instead, the court determined that Winters’ mere

status as an officer justified the departure.

        To allow a departure on the basis that Winters is a law enforcement officer would thwart the

purpose and intent of the guidelines. See United States v. Kapitzke, 130 F.3d at 822 (allowing

departure because child pornographers were susceptible to abuse in prison would thwart the

guidelines’ sentences for such crimes). The Sentencing Commission surely considered the possibility

that some defendants convicted of violating a persons civil rights under color of law would be law

enforcement officers. As noted earlier, the Commission applied greater not lesser sentences for such

crimes. Therefore the district court abused its discretion when it departed downward from the

guidelines simply because Winters was a law enforcement officer.

        Having rejected the district court reasons for a downward departure as expressed in its notice

of intent to depart downward, we turn our attention to the dissent’s rejection of our methodology.

First, the dissent emphasizes that the district court made its determination based on the totality of the

circumstances. Indeed, the dissent recites the phrase “totality of the circumstances” as some mantra

which if stated frequently enough will supplant even the district court’s written basis for a departure.

Despit e the apparent wishes of the dissent, the “totality of the circumstances” is not simply a

paradigm which renders the district court’s basis for a downward departure insulated from review of

the elements which make up the totality.

        A “total” is nothing more than the sum of its component parts. Here, those parts include,

inter alia, Winters’s subjection to a mandatory minimum of five years and his susceptibility to abuse


                                                   13
in prison. Again, these are the two reasons articulated in the district court’s notice of intention to

consider a downward departure. Individually, neither offers a basis for a downward departure. It

is axiomatic that combined they do not offer a basis for departure. Similarly, we find that any

derivative from the articulated bases does not offer a basis for departure.3

        The dissent’s reliance on our recent decision in United States v. Threadgill, 1999 WL 212251

(5th Cir. April 13, 1999) is mistaken. In Threadgill, the district court articulated two factors which

removed this case from the heartland. There, as in the case at bar, the majority accorded substantial

deference to the factual determinations of the district court; nevertheless, the majority offered an

assessment of the substantive bases for the departure. Based on its analysis, the majority found that

Threadgill “was certainly not a case where the dist rict court disregarded an applicable Guidelines

range in favor of another it preferred.” Id. at * 18. Here, the applicable guideline range required a

sentence of 108-135 months of imprisonment for violation of 18 U.S.C. § 242 and 1503, to which


        3
         For example, the dissent highlights the reasons the district court found Winters susceptible
to abuse. We reject the same because all relate to Winters status as a correctional officer and nothing
in the record indicates that Winters is unique among other inmates who were formerly correctional
officers or police officers. The dissent’s attempt to minimize the effect of the Federal Bureau of
Prisons letter confirming that it is fully capable of housing Winters exposes the futility of its argument.

           The dissent hypothesizes that the Federal Bureau of Prisons could have produced a similar
letter in Koon yet the Supreme Court found that susceptibility to abuse should be considered.
Nothing in Koon indicates the existence of any such letter; therefore, it is equally plausible that no
letter existed. Yet, we need not engage in such conjecture regarding the facts in Koon because there
is little doubt that the facts surrounding the violation of Rodney King’s civil rights received far greater
exposure than Winters’s violation of Larry Floyd’s. In fact, despite the dissent’s emphasis on the
publicity surrounding this case, nothing in the record bears upon the nature and extent of any such
publicity.
           Furthermore, while the publicity in Koon introduced a measure of complexity in safely housing
the defendants in any federal facility, the relative paucity of publicity in this case precludes us from
finding a comparative measure of complexity. Winters spent 15 years working in a penitentiary in
Mississippi and was imprisoned in Minnesota. By emphasizing Winter’s status as a corrections
officer, the dissent impermissibly lowers the bar for corrections officers.

                                                    14
the mandatory consecutive 60 months imprisonment for the firearms violations under 18 U.S.C. §

924(c) would have been added. See Winters, 105 F.3d at 206. While we do not concern ourselves

with the extent of the departure, the record indicates that the district court has failed to articulate a

plausible basis for departure. In so doing, the district court impermissibly sentenced Winters to its

“preferred” sentence of 12 months for a second time.

B.      Reassignment to a Different Judge

        Finally, the government urges this court to reassign this case to a different district judge on

remand. A federal court of appeals has the supervisory authority to reassign a case to a different trial

judge on remand. See Johnson v. Sawyer, 120 F.3d 1307 (5th Cir. 1997); 28 U.S.C. § 2106.

However, this is an extraordinary power and should rarely be invoked. See id. Such reassignments

“should be made infrequently and with the greatest reluctance.” In re Corrugated Container

Antitrust Litigation: Adams Extract Co. v. Green Pay Packaging, 752 F.2d 137 (5th Cir. 1985)

(quoting Koeller v. Richardson-Merrel, 737 F.2d 1038, 1067 (D.C. Cir. 1984) (Richey, J.,

concurring)).

        This Circuit has not decided which of two tests should be used to decide whether to reassign

a case. See Johnson, 120 F.3d at 1333. Several circuits will reassign a case to avoid bias or the

appearance of bias. See id. The Ninth and Tenth Circuits, however, have adopted a more formal test,

which requires the court to consider three factors:

                 (1) whether the original judge would reasonably be expected upon remand to
        have substantial difficulty in putting out of his or her mind previously-expressed views
        or findings determined to be erroneous or based on evidence that must be rejected,
        (2) whether reassignment is advisable to preserve the appearance of justice, and (3)
        whether reassignment would entail waste and duplication out of proportion to any
        gain in preserving the appearance of fairness. Johnson, 120 F.3d at 1333, citing Davis
        & Cox v. Summa Corp., 751 F.2d 1507, 1523 (9th Cir. 1985) (quoting United States


                                                   15
        v. Robin, 553 F.2d, 10 (2d Cir. 1997).

        See also United States v. White, 846 F.2d 678, 695-96 (suggesting three-prong test should

be used where there is no direct evidence of bias).

        This case does not call for reassignment under either test. No showing has been made that

we are presented with a case of bias or antagonism toward one party in the case. Contra, Johnson,

120 F.3d 1307 (reassigning case where lower court made repeated antagonistic remarks and admitted

hostility towards IRS). Although the district court twice chose to depart downward from Winters’

sentence, it made no indication that it would refuse to impartially weigh evidence and decide the

matters before it objectively.

        Moreover, the fact that this court has already reversed the district court does not necessarily

require reassignment. In United States v. O’Brien, this court faced a procedurally similar situation.

See O’Brien, 18 F.3d at 302. There, the district court had imposed a sentence which this Court later

vacated. See id. Upon remand, the district court again imposed an improper sentence. See id. On

the second appeal, one of the parties urged this court to reassign the case. See id. at 303-304. This

Court refused to do so. “The district judge will, we are confident, perform his duty. It is unseemly

for us to either assume that he will take a particular course or to suggest what he should do so long

as he reaches a decision in accordance with the controlling statutes.” See id., quoting United States

v. Denson, 603 F.2d 1143, 1149 (5th Cir. 1979). See also United States v. Schoenhoff, 919 F.2d 936

(5th Cir. 1990) (“We refuse to transfer an action for re-sentencing solely because two prior sentences

imposed by the trial court have been reversed.”). We decline the government’s invitation to reassign

this case.




                                                  16
                                        Conclusion

       For the reasons stated herein, we VACATE Winter’s sentence and REMAND to the district

court for re-sentencing.




                                            17
RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting.



     A district court is entrusted with discretion to determine

which    cases   present   extraordinary      circumstances    warranting   a

downward departure from the Sentencing Guidelines. Accordingly, we

are required to give substantial deference to such decisions.

Because the majority has failed to do so, and, in addition, has

misread    the   reasons   given   at     resentencing   for   the   downward

departure, I respectfully dissent.

     To set the stage, three parameters bear noting:             first, the

district judge, in making a downward departure, is, as noted,

entitled to “substantial deference”; second, the district judge

based the departure on the totality of the circumstances created by

the firearms count and the susceptibility to abuse in prison

factors, rather then treating them separately, as the majority does

erroneously; and third, only the departure, not its extent, is at

issue.

     In this regard, a very recent decision by our court summarizes

nicely, in the light of Koon v. United States, 518 U.S. 81 (1996),

the framework for reviewing downward departures:

            [O]ur analysis of a district court’s decision
            to   depart   consists   of   three   separate
            determinations. An appellate court must ask:
            (1) whether the factors relied on by the
            district court for departure are permissible
            factors under the Guidelines; (2) whether the
            departure factors, as supported by evidence in


                                        18
          the record, remove the case from the heartland
          of the applicable guideline; and (3) whether
          the degree of departure is reasonable.

United States v. Threadgill, 1999 WL 212251, *13 (5th Cir. 1999).

For our purposes here, the Supreme Court has already decided that

departures   based   on   susceptibility   to   abuse   in   prison   are

permissible, as discussed infra; and, as noted, the Government does

not challenge the extent of the departure. Therefore, at issue is

only the “heartland” question.4

     Concerning that question, the Supreme Court in Koon, decided

after the first sentencing in this case, addressed, among other

things, the district court’s decision to depart downward based on

the enormous publicity and outrage surrounding that case.             The

Court recognized the superior position of district courts in



     4
      The majority misconstrues Threadgill in part, by relying on
Threadgill’s statement that it “was certainly not a case where the
district court disregarded an applicable Guidelines range in favor
of another it preferred”. Maj. Opn. at 14 (quoting Threadgill,
1999 WL 212251 at *18). Then, although recognizing that the extent
of the departure is not at issue here, the majority concludes that
“the district court impermissibly sentenced Winters to its
‘preferred’ sentence of 12 months”. Maj. Opn. at 15. True, the
quoted statement from Threadgill in part concerned the second
inquiry on review: whether the case is outside the heartland. But,
it also concerned the third inquiry on review: whether the extent
of the departure was reasonable. Threadgill, 1999 WL 212251 at
*18, *22 n.16.    Again, we are concerned only with the second
inquiry — the heartland question. And, it is in this regard that
the majority’s treatment of Threadgill is most troubling, by
failing to address Threadgill’s discussion of the standards to be
applied in making the first two inquiries (whether the factors were
permissible and whether the facts take the case out of the
heartland).

                                  - 19 -
determining whether, for sentencing purposes, a case was “typical”:

          Before a departure is permitted, certain
          aspects of the case must be found unusual
          enough for it to fall outside the heartland of
          cases in the Guideline.       To resolve this
          question, the district court must make a
          refined assessment of the many facts bearing
          on the outcome, informed by its vantage point
          and   day-to-day    experience   in   criminal
          sentencing. Whether a given factor is present
          to a degree not adequately considered by the
          Commission, or whether a discouraged factor
          nonetheless justifies departure because it is
          present in some unusual or exceptional way,
          are matters determined in large part by
          comparison with the facts of other Guidelines
          cases. District courts have an institutional
          advantage over appellate courts in making
          these sorts of determinations, especially as
          they see many more Guidelines cases than
          appellate courts do.    In 1994, for example,
          93.9% of Guidelines cases were not appealed.
          To ignore the district court’s special
          competence – about the “ordinariness” or
          “unusualness” of a particular case – would
          risk depriving the Sentencing Commission of an
          important source of information, namely, the
          reactions of the trial judge to the fact-
          specific circumstances of the case.

Id. at 98 (internal citations and quotations omitted) (emphasis

added).

     This passage from Koon reveals two errors in the majority’s

reasoning. First, the majority states that there are two permitted

bases for a downward departure: if the conduct is outside the

heartland of typical cases; and “[a]lternatively, ... if ‘[the

sentencing court] finds an aggravating or mitigating circumstance

that was not adequately taken into consideration by the Sentencing


                               - 20 -
Commission in formulating the sentencing guidelines’”, quoting

Koon, 518 U.S. at 81 (emphasis added).             Maj. Opn. at 5-6.        As I

read the Guidelines and Koon, these are not alternative permitted

downward departure bases.         Rather, the departure is permitted if

the factors in the case take it outside the “heartland”; that

results when the circumstances are so unusual that they were not

taken into consideration by the Sentencing Commission.              See id. at

94 (Guidelines “apply to a heartland of typical cases.                Atypical

cases were not ‘adequately taken into consideration,’ and factors

that make a case atypical provide potential bases for departure”);

see also United States v. Rivera, 994 F.2d 942, 947 (1st Cir. 1993)

(a case that is outside the heartland of a guideline “is, by

definition, an ‘unusual case’”).          This clarification is important

because, in the final analysis, the district court’s reason for the

downward departure at issue resulted from it finding the sentencing

considerations outside the heartland.          It came to this conclusion

because the unique, total circumstances of this case had not been

taken into consideration by the Commission.

     Second,    the   above-quoted       passage    from    Koon    notes    the

substantial    deference   that    appellate   courts      must    accord   such

departure decisions.5      As our court stated quite recently:


      5
       In addition to worrying that a red herring (the district
judge’s expertise) has been dragged over the heartland issue, the
majority fears that my construction of the substantial discretion
standard would render downward departure decisions “virtually

                                     - 21 -
               Koon thus teaches that when a district court
               decides to depart based on the particular
               facts of a case, it is acting within its
               special competence.    Accordingly, it is the
               near-exclusive province of the district court
               to decide whether a particular factor, or set
               of factors, removes a case from the applicable
               heartland. We must accord those decisions the
               greatest deference.

Threadgill, 1999 WL 212251 at *16 (emphasis added) (internal

citations omitted).

       As discussed more thoroughly infra, the district judge went to

great lengths to explain why he thought this case is so unusual.

In addition to insight gained from having presided over the trial,

the    district    judge’s      reasons     were    grounded   in   his   extensive

judicial service and experience, especially with matters involving

the penitentiary, in that he has handled litigation concerning it

for more than 15 years.

       But, in spite of the district judge’s unique position to find

this    case    outside   the    heartland,        the   majority   dismisses   his

reasoning, stating that Winters’ “situation is not outside the

heartland of cases in which a law enforcement officer is accused of


impervious from appellate review”, and cautions that this standard
is not “designed to ward off the scrutiny of this court”. Maj. Opn.
at 5 n.1. Obviously, the substantial discretion standard is not
intended to have that effect.       On the other hand, I simply
recognize, and (unlike the majority) am faithful to, the narrow
standard of review that has been mandated. Threadgill, 1999 WL
212251, *16 (“it is the near-exclusive province of the district
court to decide whether a particular factor, or set of factors,
removes a case from the applicable heartland” (emphasis added)).
Rather than apply this standard, the majority substitutes its
judgment for that of the district court.

                                          - 22 -
using excessive force or violating a person’s civil rights under

color of law”.    Maj. Opn. at 11.      In so doing, the majority cites

no authority for this proposition, and ignores the district judge’s

vast and unique experience in applying the Guidelines in this

instance.

      Furthermore, the majority compounds the error by parsing the

judge’s reasoning and erroneously addressing each of his rationales

separately.      In contrast, the district judge’s statements at

resentencing demonstrate that he considered all the circumstances

together, in their totality, in concluding that the case was

outside the heartland.    The majority addresses the two reasons the

district court gave in its “Notice of Intent to Depart” (the

mandatory firearm sentence and the Koon susceptibility to abuse

factor) as if our court must decide whether either alone would

support the district judge’s decision. This treatment misconstrues

that judge’s reasoning and undermines the substantial deference

owed him in such circumstances.

      First,   the   majority     rejects        the   mandatory    five-year

consecutive    sentence   under   the       18   U.S.C.   §924(c)   firearms

conviction as a basis for departure, stating that “[n]o permissible

basis for departure was provided by the gun charge”.           Maj. Opn. at

6.   The district judge agreed with this; the firearms sentence was




                                   - 23 -
not the basis for his departure.6                Instead, the district judge

correctly considered the interplay of the mandatory five-year

firearms sentence with the other circumstances in considering the

totality of the circumstances that warranted a departure.              He made

clear that he was not departing solely because of the mandatory

firearms sentence and that he understood the import of United

States v. Caldwell, 985 F.2d 763 (5th Cir. 1993).

       In Caldwell, the defendant was convicted under § 924(c) and

for underlying drug offenses. The district court departed downward

because the gun did not have an “integral role” in the offense and

because of the defendant’s minimal participation in the crime.

Caldwell, 985 F.2d at 765. Our court reversed, concluding that the

case       did   not   present    “unusual      circumstances”   justifying   a

departure.       Id. at 766.     That conclusion was based on finding that

the Sentencing Commission had taken into account the interplay

between § 924(c) and the underlying drug offense.                Id.

       The interplay between § 924(c) and the underlying civil rights

offense in this case has also been taken into consideration by the

Commission.       Winters’ base offense level for the underlying civil

rights offense was not enhanced for the use of the firearm, because


       6
      At resentencing, the district judge did not dispute that §
924(c) applied to Winters. See, e.g., United States v. Contreras,
950 F.2d 232, 241 (5th Cir. 1991), cert. denied, 504 U.S. 941
(1992) (§ 924(c) applies to police officers who commit crimes using
their firearm).

                                       - 24 -
that use was taken into account for the § 924(c) sentence.                          See

U.S.S.G. § 2H1.4(a)(1994 ed.) (court to apply greater of offense

level 10 or 6 plus offense level of underlying offense for § 242

convictions); U.S.S.G. § 2A2.2(b)(2)(B) (guideline for aggravated

assault – the underlying offense in this case – that provides a 4

level increase for use of a firearm); U.S.S.G. § 2K2.4 (underlying

offense should not be enhanced for use of a firearm when defendant

is also convicted under § 924(c)).

     The    district     judge    understood       this.         This   interplay   is

reflected    in   the     Presentence     Report;        there    was   no   firearms

enhancement    to   the    base    offense       level    for    the    civil   rights

conviction.       But,    the     district       judge   recognized      that    other

considerations came into play that, in his view, took this case

outside the heartland:

            The facts [concerning Winters and those in
            Caldwell] are very distinguishable. Caldwell
            [did not involve] a law enforcement officer.
            Caldwell [concerned] a drug dealer arrested in
            a motel room and [he] had a gun within the
            useful area, I guess you could say. I’m not
            persuaded that Caldwell can be analogized to
            the case against Mr. Winters.    And I say it
            for this reason. Mr. Winters legitimately had
            this weapon on him. He was out on a mission
            to recapture an escaped prisoner. He didn’t
            shoot the victim with the gun. But he did,
            the evidence shows, strike him over the head
            with this gun. I simply meant to point out in
            my downward departure reasons, reason No. 2
            [in the notice — the weapons count], that here
            we don’t have someone who was illegally in
            possession, carrying or using a firearm. The
            illegal use of it, though[,] was the striking

                                        - 25 -
           on the head. And while that alone perhaps is
           not   a   sufficient   ground   for   downward
           departure, I mention it in conjunction with my
           first ground [in the notice – susceptibility
           to abuse in prison] because the overall
           totality of the circumstances in this case
           call for a downward departure.

(Emphasis added.)

     The district judge was within his discretion in concluding

that the Sentencing Commission had not anticipated such unusual

facts.   Addressing this, the district judge stated:

           Now, as a correctional officer searching for
           an escaped prisoner, ... Winters legitimately
           possessed a firearm during that search. And
           following the capture of the escaped inmate,
           Mr. Winters used this firearm for an illegal
           purpose, to strike the victim on the head.
           The defendant did not use the firearm within
           its designed purpose, but used the weapon as a
           club to strike the victim. It is likely this
           defendant did not give any thought to what he
           used to hit the victim with, and used this
           firearm to strike the victim because it
           happened to be in his hand at the time he
           chose to use illegal force against the victim.
           It is also likely that Mr. Winters would have
           used another item, such as a walkie-talkie,
           which one of the guards did use against this
           victim, a baton or something of that nature[,]
           if that item, instead of a firearm, had been
           in his hand when he chose to strike the
           victim.

     Moreover, I do not read Caldwell as preventing district courts

from ever considering the mandatory firearms sentence as one of the

factors in the decision to depart downward.   Although the district

court may not depart solely on that basis, the district judge made

it clear that this was merely one consideration of many.

                                - 26 -
     Finally, Caldwell does not hold that, after a district court

has decided to depart downward based on a legitimate reason, it

cannot consider the firearms sentence in deciding the extent of the

departure.       The   Guidelines’   range    for   the   civil    rights   and

obstruction of justice convictions was 108-135 months (9-11.25

years), to be followed by the mandatory consecutive five years for

the firearms count, totaling approximately 15 years.              Instead, the

district court departed downward to one year for the first two

convictions, resulting in six years imprisonment. At resentencing,

conceding that an approximate 15-years sentence was “too severe”,

the Government stated that, if the district court would depart

downward only 50% from the 108-135 months range, it would not

appeal the sentence.

     Had   the    district   court    done    so,   the   sentence   for    the

underlying offenses would be between 4.5 to 5.63 years, which, with

the consecutive mandatory five years, would have resulted in an

approximate 10-years sentence.           In short, it appeared that the

Government wanted Winters to serve approximately 10 years.                  This

supports the Government’s unspoken recognition that, in the light

of the circumstances in this case, imprisonment of greater than

approximately 10 years is outside the heartland.                  (Again, the

extent of the departure is not at issue.)

     Perhaps the majority is concerned that allowing the district

court to consider the five-year mandatory sentence as a factor

                                     - 27 -
would undermine the purpose of § 924(c).      However, this and other

courts have considered the impact of the five-year mandatory

sentence in allowing departures in other circumstances.7               For

example, a district court may consider the effect of a § 924(c)

sentence in departing downward for substantial assistance.             See

United States v. Alvarez, 51 F.3d 36, 39 (5th Cir. 1995) (district

court may impose sentence below statutory minimum on Government’s

motion   to   reflect   substantial   assistance);   United   States   v.



    7
     Two other cases were found in this circuit where the district
court departed downward where a § 924(c) sentence was involved. In
United States v. Wainuskis, 942 F. Supp. 1101 (S.D. Miss. 1996), in
which the defendant pleaded guilty to a § 924(c) violation and
underlying offenses, the district court departed downward from a
range of 78 to 97 months and imposed a 30-month sentence to run
consecutively with the § 924(c) five-year sentence. Later, due to
a change in the interpretation for the term “use” of a firearm, as
employed in § 924(c), see Bailey v. United States, 516 U.S. 137
(1995), the defendant challenged her plea to the § 924(c) charge.
The district court noted that it “would not have made such a
substantial downward departure if [it] had known that [§ 924(c)]
would subsequently be modified or changed by the Supreme Court
contrary to previous controlling precedent”. Id. at 1109. This
demonstrates that the district court considered the impact of the
mandatory sentence in deciding the extent of his departure for the
underlying offense sentence.

     Section 924(c) also provides for a mandatory 30-year term of
imprisonment for the use of certain types of firearms. In United
States v. Branch, 91 F.3d 699, 738 (5th Cir. 1996), cert. denied,
520 U.S. 1185 (1997), one of the defendants was convicted under
this provision, but the district court departed downward to 10
years imprisonment, rather than imposing the mandatory 30-year
sentence required by the statute. The Government did not appeal
the departure.

                                  - 28 -
Schaffer, 110 F.3d 530, 532-33 (8th Cir. 1997).

      Further,   allowing   this      departure    will   not   undermine   the

purpose of § 924(c).        Congress’ intent was, inter alia, that

defendants convicted under § 924(c) spend a minimum of five years

in prison.    See United States v. Singleton, 16 F.3d 1419, 1426 (5th

Cir. 1994) (Congress’ concern in enacting 1984 amendments to §

924(c) was in providing for a minimum mandatory sentence for use of

a firearm in certain crimes).         That purpose is more than satisfied

by the six-year sentence imposed by the district court.8

      Moreover, neither § 924(c) nor the case law of this circuit

state that a district court may never consider the impact of a

five-year mandatory sentence. Caldwell states that district courts

may not depart based solely on this criterion, but that is not the

situation here.

      Even if I am incorrect in my reading of Caldwell, and it is

(as   the   majority   appears   to    conclude)    inappropriate    to     ever

consider the impact of the mandatory firearms sentence, I would

still affirm the sentence based on the other factors highlighted by

the district judge, including the susceptibility to abuse in


        8
        Section 924(c)’s mandatory sentence provision was also
intended to deter the use of firearms in the commission of crimes.
United States v. Correa-Ventura, 6 F.3d 1070, 1083-84 (5th Cir.
1993). In this case, the deterrent value of the mandatory sentence
is preserved; the district court sentenced Winters to five years
for the firearms conviction to be served consecutively with one
year for the § 242 conviction.

                                      - 29 -
prison.    As the Supreme Court has stated: “A sentence thus can be

‘reasonable’ even if some of the reasons given by the district

court to justify the departure from the presumptive guideline range

are invalid, provided that the remaining reasons are sufficient to

justify the magnitude of the departure.”         Williams v. United

States, 503 U.S. 193, 204 (1992).         Here, the totality of the

circumstances, even disregarding the mandatory sentence, justifies

our according the requisite deference to the district judge and

affirming the departure.

     In this regard, the majority states that the district judge’s

“second basis for departure was the fact that Winters’ status as a

corrections officer makes him highly susceptible to abuse in

prison”.   Maj. Opn. at 11 (emphasis added).   Again, this was not a

“second”, separate, or alternative basis; instead, it was simply

part of the totality of the circumstances found to mandate downward

departure.

     In Koon, the Court stated that the crimes committed by the

police officers in beating a suspect, “were by definition the same

for purposes of sentencing law as those of any other police

officers convicted under 18 U.S.C. § 242 of using unreasonable

force in arresting a suspect”.      Koon, 518 U.S. at 112.   However,

the Court relied on the videotape of the crime, the publicity, and




                                 - 30 -
the public outrage in affirming the downward departure.     Id.

     The district judge carefully considered Koon’s applicability:

          And as I recall in United States v. Koon, the
          defendant in Koon is to be distinguished from
          Mr. Winters. Koon was a police officer, a law
          enforcement officer out working with the
          public. On the other hand, in this particular
          case, Mr. Winters was a Lieutenant working in
          corrections in a state prison.     He has had
          day-to-day contact with prisoners, presumably
          throughout the course of his 15-year career
          with    the    Mississippi    Department    of
          Corrections.    We know that a substantial
          number of prisoners who began doing time in
          the state system eventually filter into the
          federal system.   And it’s logical to assume
          than even though, certainly Mr. Winters’ case
          did not receive the notoriety and publicity
          connected with the Koon case, nonetheless it
          received a great deal of notoriety in ... the
          state of Mississippi through the media because
          an indictment resulted from the recapture of
          an inmate who was maliciously assaulted by Mr.
          Winters, who struck the inmate with a firearm
          while the inmate was on the back of a ...
          truck being taken, as I recall, perhaps to the
          hospital already because he had been struck by
          a walkie-talkie by someone earlier while being
          transported back to the penitentiary.

Thus, based on the district court’s close consideration of Winters’

susceptibility to abuse in prison, combined with its consideration

of the unique facts of this case and the effect of the mandatory

firearm sentence, the district court departed downward.

     The majority rejects this reasoning, stating that “[a] few

stories in a local or state-wide newspaper cannot compare to the

national outrage emanating from the beating [at issue in Koon], not

to mention the subsequent riots”.   Maj. Opn. at 11.   The majority’s

                               - 31 -
reasoning effectively writes Koon out of the law by requiring

national publicity and outrage for the susceptibility to abuse in

prison exception to apply.

     I do not read Koon to require such extensive publicity.       In

Koon, after discussing the publicity in that case, the Supreme

Court stated that the determination by the district court that the

defendants would be more susceptible to abuse in prison “is just

the sort of determination that must be accorded deference by the

appellate courts”.   518 U.S. at 111.     Likewise, in this case, the

district judge’s conclusion regarding the local and state-wide

publicity should be afforded far more deference than that given by

the majority.9    As noted, the sentencing judge in this case has

been involved in extensive prison litigation and is in a unique

position to gauge a defendant’s likelihood of abuse in prison.

     The majority also cites to United States v. Rybicki, 96 F.3d

754 (4th Cir. 1996), and concludes erroneously that “the [district]

court determined that Winters’ mere status as an officer justified

the departure”.   Maj. Opn. at 12.      The district court at no time

intimated that Winters deserved a departure solely because of his


    9
     In stating that there is a “relative paucity of publicity in
this case”, Maj. Opn. at 14 n.3, the majority erroneously
substitutes its view of the facts for that of the district court.
This is a factual question; the district court’s determination
should be accorded far more deference than the majority is willing
to give. See Threadgill, 1999 WL 212251 at *15 (district court’s
resolution of factual questions must be “accord[ed] substantial
deference”).

                               - 32 -
status as a corrections officer.            The majority’s reliance on

Rybicki is misplaced; even the majority notes that the Fourth

Circuit in that case was faced with the issue of “whether the

defendant’s status as a law enforcement officer can, by itself,

justify a downward departure”.         Maj. Opn. at 12 (emphasis added).

      The district judge stated that he was not departing downward

based solely on Winters’ position as a corrections officer.10

Instead, the judge found that a susceptibility to abuse departure

was warranted because: (1) Winters was a corrections officer with

daily contact with prisoners; (2) he had been a corrections officer

for   15   years,   increasing   the   amount   of   contact   he   had   with

prisoners; (3) the case received considerable media attention in

Mississippi, where Winters was employed and the prisoners would

have known about the incident; (4) prisoners in the state system


      10
      Indeed, in addressing downward departures that were granted
as a result of the defendant’s status in a class of offenders
frequently   targeted   by   other   prisoners   (such   as   child
pornographers), two other circuits have held that Koon does not
allow a departure. See United States v. Wilke, 156 F.3d 749, 753
(7th Cir. 1998) (“Mere membership in a particular class of
offenders that may be susceptible to abuse in prison does not merit
a departure for vulnerability to abuse in prison”); United States
v. Drew, 131 F.3d 1269, 1271 (8th Cir. 1997) (child pornography
conviction and naivete of defendant not enough to support downward
departure for vulnerability to abuse); United States v. Kapitzke,
130 F.3d 820, 822 (8th Cir. 1997) (“Kapitzke’s mere membership in
a class of offenders that may be targeted by other inmates cannot
make his case extraordinary”). The district court did not depart
merely because of Winters’ status as a member of a vulnerable class
in prison (i.e., prison guards), but instead departed based on the
total circumstances surrounding this case.

                                   - 33 -
often enter the federal system; and (5) the crime for which Winters

was convicted stemmed from his beating a prisoner.               In short, it is

erroneous for the majority to conclude that the district judge

relied only on Winters’ corrections officer status in determining

that a susceptibility to abuse in prison departure was warranted.

     In concluding that “the district court abused its discretion

when it departed downward from the guidelines simply because

Winters was a law enforcement officer”, the majority states that

“[t]o allow a       departure on the basis that Winters is a law

enforcement officer would thwart the purpose and intent of the

guidelines”;    and    that     “[t]he       Sentencing   Commission     surely

considered    the   possibility    that      some   defendants    convicted   of

violating a person’s civil rights under color of law would be law

enforcement officers.         As noted earlier, the Commission applied

greater not lesser sentences for such crimes”.               Maj. Opn. at 12

(emphasis in original).

     Certainly, the Commission contemplated the sad fact that some

persons violating another’s civil rights would be law enforcement

officers.    But, that is not the issue at hand.          At issue is whether

the Commission contemplated that, for circumstances such as exist

in this case (corrections officer struck captured escapee with

pistol), that the officer would not only receive a substantial term

of imprisonment (10 years) under the Guidelines for civil rights

and obstruction of justice violations, greatly increasing, among

                                    - 34 -
other things, his susceptibility to abuse in prison, but would also

receive a consecutive five year sentence on a firearms count (even

though the weapon was instead used as a club), adding to that

susceptibility   and   otherwise    increasing   the   sentence   to

approximately 15 years.11    Based upon his vast experience and

exercising his broad discretion, the district judge concluded that,

under the totality of the circumstances, this situation was not

contemplated; that the Commission never intended that a person

committing such an offense would serve approximately 15 years in

prison; and that, as a result, it was outside the heartland.12

     The district court’s decision is further supported by United

States v. Hemmingson, 157 F.3d 347, 363 (5th Cir. 1998), in which



    11
      The Government points to a letter from the Bureau of Prisons,
stating that it is equipped to protect prisoners, such as Winters,
that have special security needs. Presumably, the Bureau could
have said the same for the defendants in Koon. Again, the Supreme
Court affirmed the district court’s susceptibility to abuse
departure in that case, deferring to the judgment of the district
court on such matters.
         12
       See Threadgill, 1999 WL 212251 (5th Cir. 1999) (affirming
downward departure in money laundering case and deferring to
district court’s factual determinations). See also United States
v. Walters, 87 F.3d 663 (5th Cir.), cert. denied, 117 S. Ct. 498
(1996), where our court deferred to the district judge’s
determination that the defendant deserved mitigation in receiving
a sentence for money laundering because he did not receive any of
the stolen funds. Our court affirmed the departure because the
extent of the departure was reasonable and “the sentencing
guideline for money laundering and its commentary make no mention
of the failure to receive a personal benefit as a mitigating
factor”. Id. at 671-72.

                               - 35 -
our court upheld a downward departure based on “the unusual facts

of [the] case[,] ... Department of Justice practice, the language

and   structure       of   the   guideline,        and    the   absence    of     caselaw

supporting the government’s claim to typicality”.                        Likewise, the

district judge here considered what he, as an experienced judge,

found to be the unusual factors of this case; the Court’s reasoning

in Koon, holding that atypical susceptibility to abuse in prison

may   warrant     a    downward     departure;           Winters’      position    as    a

correctional officer for 15 years, thus placing him in contact with

countless prisoners; and the fact that Winters was convicted of

beating a prisoner.          While the Government asserts that this is a

typical case (as it did unsuccessfully in Hemmingson), it cites no

authority   to    show      that   this     is     a   typical    18    U.S.C.     §    242

prosecution.13


      13
      A search of 18 U.S.C. § 242 prosecutions appealed to either
our court or the Supreme Court resulting in a published opinion
revealed only one case involving a prison guard accused of beating
a prisoner. In United States v. Bigham, 812 F.2d 943 (5th Cir.
1987), prison guards beat, struck, and burned recaptured escaped
prisoners after returning to the prison. There is no indication in
the opinion that any of the guards struck the prisoners with a gun.
The opinion does not indicate the length of the sentence imposed on
any of the defendants.

     Given the paucity of the reported cases involving appeals from
18 U.S.C. § 242 convictions for guards beating inmates, it is
unclear how the majority reaches the conclusion that this case is
a typical § 242 case. Indeed, it is because appellate courts see
so few cases on appeal relative to those addressed by the district
courts that we should, and must, give substantial deference to the
district court in determining the typicality of a case.

                                          - 36 -
      Moreover, the district court’s use of the totality of the

circumstances is supported in a post-Koon case from the Tenth

Circuit. In United States v. Collins, 122 F.3d 1297, 1302-03 (10th

Cir. 1997), the court began by reviewing the impact of Koon on

appellate review of downward departures. The court noted that Koon

requires its most deferential review for the factual determinations

by the district court.      Id. at 1302 (citing Koon, 116 S. Ct. at

2046).    Here, as discussed supra, part of the legal basis of the

district court’s decision was Winters’ susceptibility to abuse in

prison.   Again, the Supreme Court has held that this may be taken

into account in deciding to depart downward.                Thus, as also

discussed supra, the only determinations left for our review are

the   district   judge’s   factual     findings   that   Winters   would   be

susceptible to abuse in prison, to which we must grant substantial

deference (stated by Threadgill, as discussed supra, to equate with

“accord[ing] those decisions the greatest deference”, 1999 WL


     Further, the lack of this type of § 242 convictions before
this court undermines the majority’s conclusion that the district
court must be reversed because departures should be infrequent.
Given the infrequency with which this court must decide appeals
from these cases, departures such as the one before us can hardly
be described as “frequent”. Moreover, our court lacks jurisdiction
to review a district court’s refusal to depart downward unless its
decision was based on a mistaken belief that it lacked authority to
do so.   See, e.g., United States v. Valencia-Gonzalez, 1999 WL
198889, *2 (5th Cir. 1999). This further undermines the majority’s
conclusion that this case is not atypical, as our court can only
review those cases in which a downward departure is granted, not
when it is refused.

                                     - 37 -
212251 at *16).

     The Collins court also recognized that some factors that would

not, alone, support a departure could be properly considered in

conjunction with other factors to warrant a downward departure. In

Collins,   the   district      court     departed    downward   based    on   the

defendant’s advanced age and infirmity and on the circumstances

surrounding an almost 10-year-old conviction that resulted in a

career criminal adjustment.              Collins, 122 F.3d at 1305.            In

affirming,    the   Tenth     Circuit     stated    that,   although    offender

characteristics (such as age and infirmity) ordinarily should not

be taken into account, they could be considered “in combination

with other circumstances of a defendant’s criminal history”.                  Id.

(Emphasis added.)       Thus, rather than parsing the district court’s

reasoning (as the majority erroneously does here), the Tenth

Circuit considered the reasons for departing downward in the same

manner as the district court presented them – as part of the total

circumstances that, together, removed the case from the heartland.

     Recently, the Eighth Circuit rendered a decision in a similar

case. In United States v. Colbert, 1999 WL 177300 (8th Cir. 1999),

the defendant, a police officer, was convicted of violating § 242

after he beat a suspect being held in the local jail.               On appeal,

the defendant claimed, among other things, that the district court

erred in     refusing    to   depart     downward   under   Koon   because    the

defendant, as a police officer, would be susceptible to abuse in

                                        - 38 -
prison; because the victim provoked the defendant; and because of

the defendant’s responsibilities to his children and fiancee.

     The Eighth Circuit affirmed the decision not to depart.14

Colbert, however, involved different facts than those present here:

first, the defendant in Colbert did not assert that there was

publicity   surrounding   his   conviction       that   would   increase   the

susceptibility to abuse in prison; and second, here, the district

judge did not rely on either family responsibilities, as discussed

infra, or the conduct of the victim in deciding to depart downward.

     Interestingly,    although   the       Colbert     court   affirmed   the

district court’s decision not to depart downward, Colbert supports

affirming   the   departure   here.        In   rejecting   the   defendant’s

contentions, Colbert notes that Koon did not apply because “there

was no extraordinary publicity”.       In contrast, here, the district



     14
       As discussed in note 10, the rule in our court is that we
generally lack jurisdiction to review a denial of a downward
departure. See, e.g., Valencia-Gonzales, 1999 WL 198889 at *2.
The Eighth Circuit follows the same rule. See, e.g., United States
v. Johnson, 1999 WL 105100, *3 (8th Cir. 1999) (“We have
jurisdiction to review the district court’s discretionary decision
not to depart downward from the Guidelines only if the district
court acted with an unconstitutional motive or erroneously believed
that it lacked the authority to consider a particular mitigating
factor”) (internal quotation omitted). The defendant in Colbert
did   not  claim    that  the   district   court   acted  with   an
unconstitutional motive or under an erroneous belief that it could
not depart downward.     Nevertheless, the court did not address
whether it had the authority to review the refusal-to-depart-
downward claim. Instead, the court proceeded to the merits and
appeared to review the district court’s decision under an abuse of
discretion standard.

                                  - 39 -
judge found that there was significant publicity.                     Further, the

Eighth Circuit did not devote much discussion to analyzing the

district court’s decision.           Rather, after a very brief discussion

of the holding in Koon, the court stated: “The District Court felt

these differences justified it in refusing to depart downward.                     We

see no abuse of discretion in these determinations.”                    Id. at *2.

     Thus,   the    Eighth    Circuit     did     not   parse   and     dissect   the

district court’s reasoning on each of the bases the district court

rejected in denying a downward departure.                      Rather, the court

followed the district court’s lead in examining the circumstances

of the case, and, in the end, deferred to the discretion and

reasoning of the district court.                This is precisely the approach

the majority has erroneously failed to follow here.

     Such an approach is warranted, where the district judge

carefully considered a combination of factors that lead it to find

this case atypical. By separating out each of the district court’s

reasons and analyzing each on its own, the majority destroys any

possibility of a district court departing downward when a case

presents numerous factors that, while each alone may not support a

departure,   make    the     total    case       atypical.15      The    Sentencing


    15
      The majority likens my use of “totality of the circumstances”
to a “mantra”. For this review, well it should be. Stating that
“[a] ‘total’ is nothing more than the sum of its component parts”,
Maj. Opn. at 13, the majority examines only the parts and never the
sum. This is at odds with our court’s approach in Threadgill and
Hemingson, where we looked at the total circumstances rather than

                                       - 40 -
Commission did not intend for departures to be made only in those

case where one factor made the case atypical, but not in those

cases where a combination of factors made it so.

     Finally, I disagree with the majority’s conclusion that the

district court considered Winters’ family ties and responsibilities

in departing downward.    In so doing, the majority quoted from our

court’s opinion for the first appeal in this case, United States v.

Winters, 105 F.3d 200 (5th Cir. 1997).        There, our court stated:

           That is not to say that, on remand, there can
           be no possibility of a downward departure
           based on family ties or responsibilities or
           the defendant’s employment. See Koon, 116 S.
           Ct. at 2050. (Congress did not grant courts
           authority    to   decide    what   sentencing
           considerations are inappropriate in every
           case.)    But the district court’s reasoning
           fails to cite the compelling facts necessary
           to satisfy the very high standard for this
           type of departure from the Guidelines.

105 F.3d at 208 (Emphasis added).          The majority quotes the last

sentence of this paragraph, Maj. Opn. at 10, but it is inapplicable

in this appeal; the district judge did not, on resentencing, base

his decision on Winters’ family ties or responsibilities.

     Instead, as discussed, the district judge looked to other

factors.    Because   I   would   accord,    as   required,   substantial

deference to his findings and would affirm the sentence imposed by

him, I respectfully dissent.



critically parsing each stated reason.

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