U.S. v. Coleman, PLAINTIFF-APPELLEE

• Decision Date: 23 September 1998
• Docket Number: DEFENDANT-APPELLANT,No. 96-1823,PLAINTIFF-APPELLEE,96-1823
• Citation: 188 F.3d 354
• Parties: (6th Cir. 1999) UNITED STATES OF AMERICA,, v. REGINALD COLEMAN, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 354

188 F.3d 354 (6th Cir. 1999)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. REGINALD COLEMAN, DEFENDANT-APPELLANT.

No. 96-1823

U.S. Court of Appeals, Sixth Circuit

Argued: September 23, 1998

Decided and Filed: July 28, 1999

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 95-80002--Nancy G. Edmunds, District Judge.

Jonathan M. Epstein (argued and briefed), Federal Public Defenders Office, Detroit, Michigan, for Defendant-Appellant.

Krishna S. Dighe, Office of the U.S. Attorney, Detroit, Michigan, David J. Debold, Assistant U.S. Attorney (argued and briefed), Detroit, Michigan, for Plaintiff-Appellee.

Before: Martin, Chief Judge; Merritt, Kennedy, Jones, Nelson, Ryan, Boggs, Norris, Suhrheinrich, Siler, Batchelder, Daughtrey, Moore, Cole, Clay, and Gilman, Circuit Judges.

Jones, J., delivered the opinion of the court, in which Martin, C. J., Merritt, Nelson, Daughtrey, Moore, Cole, Clay, and Gilman, JJ., joined. Kennedy, J. (pp. 362-363), delivered a separate Dissenting opinion, in which Ryan, Norris Suhrheinrich, Siler, and Batchelder, JJ., joined, with Norris, J. (pp. 363-364), also delivering a separate Dissenting opinion, in which Kennedy, Ryan, Boggs, Suhrheinrich, Siler, and Batchelder, JJ., joined.

OPINION

Nathaniel R. Jones, Circuit Judge.

Defendant Reginald Coleman appeals the sentence imposed following his plea of guilty to distribution of a controlled substance (crack cocaine) in violation of 21 U.S.C. § 841(a)(1). Coleman contends that the district court erred in concluding that it lacked the legal authority to depart downward based on the government's allegedly improper investigatory techniques. We granted en banc review primarily to address the applicability of Koon v. United States, 518 U.S. 81 (1996) to the facts of this case. We now hold that Koon, a decision of which the district court did not have the benefit at the time of sentencing, makes clear that a trial Judge cannot categorically exclude any non-prohibited factors from consideration for a downward departure. We therefore reverse and remand.

I. Facts

In December of 1994, Coleman was approached by an undercover agent for the Bureau of Alcohol Tobacco and Firearms ("ATF"). The agent, Special Agent Joseph Secrete, was conducting an investigation in which he posed as a successful businessman and approached ex-felons as they were lawfully reporting to their parole office. According to the government, Secrete would receive a tip that certain individuals who were on parole for state convictions, and who also listed inaccurate addresses, may be engaging in criminal activity. Secrete would then obtain a photograph of the individual and the location where the individual reported to a parole officer. After identifying the individual, Secrete would approach him as he was leaving his parole office. According to Coleman, Secrete would subsequently give targeted parolees a business card, which identified Secrete as the owner of the fictitious "Atlantic Tours & Financing," and befriend the parolees by offering them rides, trips, jobs, and other business opportunities. Secrete would then offer to deal in illegal narcotics or firearms. Apparently, all of the suspects targeted for investigation were African-American.¹ Secrete approached Coleman, and on five separate occasions, Coleman delivered cocaine base to him. On each occasion, Secrete would give Coleman cash to purchase drugs. Coleman would then take the money, drive out of Secrete's sight, and return with crack cocaine. Secrete would thereafter pay Coleman $50.00 for his services.

On September 7, 1995, Coleman was indicted on five counts of distribution of a controlled substance under 21 U.S.C. § 841(a)(1). Pursuant to a Rule 11 plea agreement, Coleman pleaded guilty to two counts; the other counts were dismissed. On May 21, 1996, after his conviction, Coleman filed a motion for a downward departure, arguing that his offenses were committed due to the improper investigative techniques of the ATF. Coleman alleged that the ATF operation impermissibly targeted and induced parolees to commit crimes, and specifically targeted only African-Americans. Coleman asserted that these factors removed the case from the "heartland" of drug offenses. The district court found that Coleman's argument was not a sentencing issue, but rather a selective prosecution issue, and thus, an improper legal basis for a downward departure. Consequently, the district court sentenced Coleman to a term of 100 months of imprisonment, four years of supervised release and a mandatory special assessment of $100.00. Coleman thereafter appealed. A divided panel of this court reversed and remanded, holding that in light of Koon, a trial Judge cannot categorically exclude any non-prohibited factors from consideration for a downward departure. See United States v. Coleman, 138 F.3d 616 (6th Cir.), vacated, 146 F.3d 1051 (6th Cir. 1998). We granted rehearing en banc and also vacated the sentence and remand.

II. Discussion

Generally, a court's failure to exercise its discretion and grant a downward departure is not reviewable. See, e.g., United States v. Landers, 39 F.3d 643, 649 (6th Cir. 1994). An appellate court may only review a denial of a motion for a downward departure if the district court Judge "incorrectly believed that [s]he lacked any authority to consider defendant's mitigating circumstances as well as the discretion to deviate from the guidelines." Id. (citation omitted). Here, the district court believed that it lacked the authority and discretion to depart downward. The district court repeatedly stated that it believed Coleman's motion was a selective prosecution issue, rather than an issue to be determined in a motion for a downward departure.² The district court further concluded that because Coleman was complaining only about investigatory techniques, it did not "see a legal basis for using [investigatory techniques] as a downward departure here." J.A. at 120. Significantly, the district court noted that even if there was hard evidence of improper investigatory techniques, it still would not be an "issue" which would entitle the defendant to a downward departure. Thus, it is clear that the district court was far more concerned with the procedural posture of the claim than with whether there was sufficient evidence to support a downward departure. Viewing the district court's statements in their entirety, it is apparent that the district court believed that Coleman's downward departure arguments could not be brought at sentencing, and that it did not have the authority or discretion to seriously consider defendant's claims of improper investigatory techniques at that time. Accordingly, we may review the district court's decision.

A. Standard of Review

We review a district court's belief that it lacked the authority for a downward departure under the Sentencing Guidelines under an abuse of discretion standard. Koon, 518 U.S. at 99-100. Thus, we note that although a determination of the permissible factors a court may consider in departing downward under any circumstances is a question of law, and we are not required to defer on that point, the abuse of discretion standard includes review to determine whether a court was guided by an erroneous legal Conclusion. Id. A district court by definition abuses its discretion when it makes an error of law. Id. at 100.

B. Investigative Techniques

During the sentencing hearing and on appeal, the government argued that the district court lacked the authority to consider a downward departure, asserting that even if Coleman had in fact established a case of selective prosecution, there was no basis for a downward departure and the government was "unaware of any legal authority... to depart below the applicable sentencing guideline range because of the method of investigation." Gov't Br. at 13. Moreover, the government alleged that courts have repeatedly refused to allow downward departures based on governmental misconduct. The government, however, misunderstands the import of Koon³.

A downward departure is permitted when there is a mitigating factor that has not been adequately considered in formulating the Sentencing Guidelines. 18 U.S.C. § 3553(b); see also 1998 U.S.S.G. § 5K2.0. Because the Commission "did not adequately take into account cases that are, for one reason or another 'unusual,'" such factors will normally not be considered in the typical "heartland" of cases embodying the conduct that each Guideline describes. Koon, 518 U.S. at 93 (quoting 1995 U.S.S.G. ch. 1, pt. A, intro. comment. 4(b)). A court may grant a downward departure, then, if circumstances exist which take the case out of the typical "heartland" of cases embodied by the Guideline. Id. at 93-94. The Supreme Court, adopting a test proposed by the First Circuit, stated that a court considering a departure should inquire:

"1) What features of this case, potentially, take it outside the Guidelines' "heartland" and make of 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?"

Id. at 95 (citation omitted). "If a factor is unmentioned in the Guidelines, the court must, after considering the 'structure and theory of both relevant individual guidelines and the Guidelines taken as a whole,' decide whether it is sufficient to take the case out of the Guideline's heartland." Id. at 96 (citation omitted)(emphasis added).

There are a potentially infinite number of factors which may warrant a departure. Koon makes clear that a court may not categorically exclude the consideration of any one factor, and that to do so would be a transgression of the policymaking authority vested in the Commission. Id. at 106-07. A court is strictly limited to...