Cite as: 518 U. S. 81 (1996)
Syllabus
(a) Victim misconduct is an encouraged basis for departure under USSG § 5K2.10, and the District Court did not abuse its discretion in basing a departure on it. The court's analysis of this departure factor showed a correct understanding in applying § 2H1.4, the Guideline applicable to 18 U. S. C. § 242, both as a mechanical matter and in interpreting its heartland. As the court recognized, § 2H1.4 incorporates the Guideline for the offense underlying the § 242 violation, here § 2A2.2 for aggravated assault, and thus creates a Guideline range and a heart-land for aggravated assault committed under color of law. A downward departure under § 5K2.10 was justified because the punishment prescribed by § 2A2.2 contemplates unprovoked assaults, not cases like this where what begins as legitimate force in response to provocation becomes excessive. The Court of Appeals misinterpreted the District Court to have found that the victim had been the but-for cause of the crime, but not that he had provoked it; it also misinterpreted the heart-land of the applicable Guideline range by concentrating on whether the victim's misconduct made this an unusual case of excessive force. Pp. 101-105. (b) This Court rejects the Government's contention that some of the four considerations underlying the District Court's second downward departure are impermissible departure factors under all circumstances. For a court to conclude that a factor must never be considered would be to usurp the policymaking authority that Congress vested in the Commission, and 18 U. S. C. § 3553(a)(2) does not compel such a result. A court's examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the Commission has proscribed, as a categorical matter, that factor's consideration. If the answer is no—as it will be most of the time—the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the applicable Guideline's heartland. Pp. 106-109. (c) The District Court abused its discretion in relying on petitioners' collateral employment consequences as support for its second departure. Because it is to be expected that a public official convicted of using his governmental authority to violate a person's rights will lose his or her job and be barred from similar employment in the future, it must be concluded that the Commission adequately considered these consequences in formulating 1992 USSG § 2H1.4. Thus, the career loss factor, as it exists in this suit, cannot take the suit out of § 2H1.4's heart-land. Pp. 109-111. (d) The low likelihood of petitioners' recidivism was also an inappropriate ground for departure, since the Commission specifically ad-
83
Page: Index Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: October 4, 2007