Cite as: 518 U. S. 81 (1996)
Opinion of the Court
taken the encouraged factor into account. For instance, a departure for disruption of a governmental function "ordinarily would not be justified when the offense of conviction is an offense such as bribery or obstruction of justice; in such cases interference with a governmental function is inherent in the offense." Ibid. A court still may depart on the basis of such a factor but only if it "is present to a degree substantially in excess of that which ordinarily is involved in the offense." § 5K2.0.
Discouraged factors, by contrast, are those "not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range." 1995 USSG ch. 5, pt. H, intro. comment. Examples include the defendant's family ties and responsibilities, 1995 USSG § 5H1.6, his or her education and vocational skills, § 5H1.2, and his or her military, civic, charitable, or public service record, § 5H1.11. The Commission does not view discouraged factors "as necessarily inappropriate" bases for departure but says they should be relied upon only "in exceptional cases." 1995 USSG ch. 5, pt. H, intro. comment.
The Commission's treatment of departure factors led then-Chief Judge Breyer to explain that a sentencing court considering a departure should ask the following questions:
"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?" United States v. Rivera, 994 F. 2d 942, 949 (CA1 1993).
We agree with this summary. If the special factor is a forbidden factor, the sentencing court cannot use it as a basis
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