U.S. v. Coleman

• Decision Date: 11 March 1998
• Docket Number: No. 96-1823,96-1823
• Citation: 138 F.3d 616
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Reginald COLEMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 616

138 F.3d 616

UNITED STATES of America, Plaintiff-Appellee, v. Reginald COLEMAN, Defendant-Appellant.

No. 96-1823.

United States Court of Appeals Sixth Circuit.

Argued Sept. 11, 1997.

Decided March 11, 1998.

Krishna S. Dighe (argued and briefed), Office of the U.S. Attorney, Detroit, MI, for Plaintiff-Appellee.

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

Before: MERRITT, JONES, and NORRIS, Circuit Judges.

JONES, J., delivered the opinion of the court. MERRITT, J. (pp. 622-623), delivered a separate concurring opinion. NORRIS, J. (pp. 623-624), delivered a separate dissenting opinion.

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 on the ground of the government's allegedly improper investigatory techniques. We hold that Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), a decision of which the district court did not have the benefit at the time of the sentencing, makes clear that a trial judge cannot categorically exclude any non-prohibited factors from consideration for a downward departure. We accordingly vacate the sentence and remand for re-sentencing.

I. Facts

In December of 1994, Defendant Reginald 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 may be engaging in criminal activity who were on parole for state convictions, and whose listed addresses were not accurate. Agent Secrete would then obtain a photograph of the individual and the location where the individual reported to a parole officer. After identifying the individual, Agent Secrete would approach the individual as he was leaving his parole office. Coleman claims that Secrete would subsequently give targeted parolees a business card, and befriend such individuals by offering rides, trips, jobs and other business opportunities. Secrete would then offer to deal in illegal narcotics and/or firearms with the individual. Apparently, all of the suspects targeted for investigation were African-American. ¹ On five separate occasions, Coleman delivered cocaine base to Agent Secrete.

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 technique of the ATF, by targeting and inducing parolees to commit crimes and specifically targeting 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 imprisonment, 4 years supervised release and a mandatory special assessment of $100.00. This timely appeal followed.

II. Discussion

Generally, a court's failure to exercise its discretion and grant a downward departure is not reviewable. See, e.g., U.S. 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 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 J.A. at 119-20. 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. Indeed, even in the passage cited by the dissent, it is clear that the district court was far more concerned with the procedural posture of the claim rather than whether there was sufficient evidence to support a downward departure, noting that even if there were hard evidence of improper investigatory techniques, it still would not be an "issue" which would entitle the defendant to a downward departure. J.A. at 120. 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 and discretion to seriously consider the claims 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 98-102, 116 S.Ct. at 2047-48. 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. at 98-100, 116 S.Ct. at 2047. A district court by definition abuses its discretion when it makes an error of law. Id.

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. Br. 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 Koon. ³

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 1997 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 92-94, 116 S.Ct. at 2044. (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.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, 116 S.Ct. at 2045 (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. (citation omitted) (emphasis added).

There are a potentially infinitesimal 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 105-07, 116 S.Ct. at 2050. A court is strictly limited to determining merely "whether the Commission has explicitly proscribed consideration of the factor," and if not, "the court must determine whether the factor, as occurring in the particular circumstances, takes the cases outside the heartland of the applicable Guideline." Id. at 109, 116 S.Ct. at 2051; accord United States v. Mendoza, 121 F.3d 510, 513 (9th Cir.1997); United States v. Core, 125 F.3d 74, 76-7 (2d Cir.), cert. denied sub nom. Reyes v. United States, --- U.S. ----, 118 S.Ct. 735, 139 L.Ed.2d 672 (1998) ("[T]he Guidelines themselves make clear that a court should consider in every case, not only in rare circumstances, whether a departure is appropriate" and "absent express prohibition, a sentencing court is 'free to consider in an unusual case whether or not the factors that make it unusual ... are present in sufficient kind or degree to warrant a departure' ") (citations omitted); United States v. Brock 108 F.3d 31, 34 (4th Cir.1997) ("[T]he unmistakable teaching of Koon is that only those factors on which the Commission has forbidden reliance ... never may provide an appropriate basis for departure. All others potentially may provide a basis for departure under appropriate circumstances.") (citations omitted); United States v. Sherpa, ...