United States v. Anthony Gaines

122 F.3d 324, 1997 U.S. App. LEXIS 21164, 1997 WL 453420

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 8, 1997
• Docket: 95-2374
• Status: Published

Opinions

SUHRHEINRICH, J., delivered the opinion of the court, in which SILER, J., joined. JONES, J. (pp. 331-36), delivered a separate dissenting opinion.

SUHRHEINRICH, Circuit Judge.

The United States Sentencing Guidelines (“Sentencing Guidelines”) have engendered much controversy since their inception in 1987. One of the most controversial provisions of the Sentencing Guidelines has been the 100:1 quantity ratio of powder cocaine to crack cocaine (“100:1 ratio”). The 100:1 ratio treats an individual who traffics in a given quantity of crack cocaine the same as it treats one who traffics in 100 times as much powder cocaine. The United States Sentencing Commission (“Sentencing Commission”) and Congress have engaged in an ongoing dialogue regarding the propriety of the 100:1 ratio. The most recent exchange between these two entities concerning the 100:1 ratio raises the single question on review in the case before us: whether a district court has the statutory authority to depart downward in the sentencing of a crack cocaine dealer on the ground that the Sentencing Commission, as opposed to Congress, determined that the 100:1 ratio should be eliminated.¹ The district court concluded it had such authority and departed downward to the statutory minimum in sentencing Anthony Gaines for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a). The United States appeals.² We VACATE and REMAND for resentencing consistent with this opinion.

I.

Before the Sentencing Commission originally promulgated the Sentencing Guidelines in 1987, Congress adopted a similar 100:1 ratio in the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207, when it created mandatory minimum and maximum penalties for persons convicted of trafficking in crack and powder cocaine, as well as other controlled substances.³ 21 U.S.C. § 841(b). The Sentencing Commission, which derives its authority from Congress, see 28 U.S.C. § 994; Mistretta v. United States, 488 U.S. 361, 412, 109 S.Ct. 647, 676, 102 L.Ed.2d 714 (1989) (holding constitutional the use of the Sentencing Commission to set Sentencing Guidelines under the Sentencing Reform Act of 1984), subsequently incorporated Congress’s method of treating cocaine offenders into the original Sentencing Guidelines submitted in April of 1987.⁴

The 100:1 ratio proved to be controversial from the outset. Sensitive to these criticisms, in 1994 Congress directed the Sentencing Commission to study and report on federal sentencing policy as it related to possession and distribution of all forms of cocaine. See Omnibus Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796 (September 13, 1994). The Act stated that the cocaine senteneing report “shall address the differences in penalty levels that apply to different forms of cocaine and include any recommendations the Commission may have for retention or modification of such differences in penalty levels.” Id.

The result of the Sentencing Commission’s work was the book-length Special Report to the Congress: Cocaine and Federal Sentencing Policy (1995) [hereinafter Cocaine Report], issued in February of 1995, which analyzed each factor perceived to be relevant to the distinction between crack and powder cocaine. In the Cocaine Report, the Sentencing Commission concluded that it could not support the penalty scheme in force. “The factors that suggest a difference between the two forms of cocaine do not approach the level of a 100-to-l quantity ratio. Research and public policy may support somewhat higher penalties for crack versus powder cocaine, but a 100-to-l ratio cannot be recommended.” Cocaine Report, p. xiv.

Based on the findings of the Cocaine Report, the Sentencing Commission submitted to Congress on May 1, 1995, amendments to the Sentencing Guidelines relating to cocaine offenses.⁵ Amendments to the Sentencing Guidelines for the United States Courts, 60 Fed.Reg. 25074, 25074 (May 10, 1995). The Sentencing Commission proposed (1) the elimination of the 100:1 ratio, (2) the placement of penalties for all forms of cocaine at the present powder cocaine levels,⁶ and (3) the addition of other sentence enhancements for particular harms typically associated with crack cocaine offenses.

Pursuant to 28 U.S.C. § 994(p), the Sentencing Commission specified an effective date of November 1, 1995, for the amendments. Id. In October of 1995, however, Congress considered and rejected the Sentencing Commission’s proposed amendments. Pub.L. No. 104-38,109 Stat. 334 (October 30, 1995). Congress also directed the Sentencing Commission to submit new recommendations regarding cocaine sentencing.⁷ Against this backdrop, the district court considered and granted Gaines’s request for a downward departure.

II.

The facts of this case are straightforward and undisputed. In the summer of 1994, agents from the Bureau of Alcohol, Tobacco, and Firearms (“BATF”) arranged through a series of phone calls between Gaines and eodefendant Orlando Freeman to purchase approximately 500 grams of crack cocaine from Gaines.⁸ When Gaines arrived at the location specified for the sale, BATF agents arrested him and seized 500 grams of crack on the front seat of his automobile.

a subsequent search of Gaines’s house yielded four handguns and approximately $29,117 in U.S. currency. One of the hand guns had an obliterated serial number. BATF agents and a canine later searched Gaines’s impounded vehicle. The canine search revealed a specially constructed secret hydraulic lift compartment that contained approximately three kilograms of crack cocaine. Gaines waived his Miranda rights and told the officers that he trafficked in large quantities of crack cocaine. Gaines also admitted that he and Freeman intended to sell 500 grams of crack cocaine to the BATF agents and that he intended to distribute the remaining three kilograms of crack cocaine later in the evening.

Gaines was charged with (1) conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846; (2) possession of cocaine base with the intent to distribute in violation of 21 U.S.C. § 841(a)(1); and (3) possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). Gaines pled guilty to all three charges.

Under 21 U.S.C. § 841(a)(1), Gaines faced a minimum term of imprisonment of ten years and a maximum of life. The guideline imprisonment range was 168 to 210 months.⁹ The district court postponed sentencing until after November 1, 1995, in part to determine if Congress would approve the Sentencing Commission’s proposed Sentencing Guidelines amendments eliminating the 100:1 ratio.

On November 9, 1995, 10 days after Congress had rejected the proposed amendments, Gaines appeared before the district court for sentencing. The court departed below the applicable guideline range and imposed the mandatory minimum sentence of 120 months. At the sentencing hearing, the court explained its decision as follows:

THE COURT: The guidelines set a sentencing level of — that has a minimum of 168 months. There is also a statute for mandatory minimum sentence here of 120 months. It does seem to me given much of the testimony and scientific evidence that we have as outlined in the defendant’s memorandum that it would be reasonable here to depart downward for the reasons articulated by [Defense Counsel], to depart downward under, is it 5K2.0?

DEFENSE COUNSEL: That’s correct, Your Honor.

THE COURT: To the mandatory minimum of ten years. I’ll just state for the record that I’m not in the least trivializing the crime here. It’s very substantial. The amount was significant but it seems to me, overall, that the statutory minimum is probably a more appropriate sentence than the bottom of the guideline range. And I will therefore sentence the defendant to a period of ten years.

In the Judgment and Commitment Order the district court elaborated on its rationale for the departure. According to the district court, the Cocaine Report and the Sentencing Commission’s proposed amendments to the Sentencing Guidelines indicated that the Sentencing Commission had not adequately considered the bases for the 100:1 ratio in promulgating the original Sentencing Guidelines. In particular, the district court focused on the following five factors discussed in the Cocaine Report:

[The 100:1 ratio] (i) cannot be justified by the psychological effects of the two forms of cocaine; (ii) has a disparate impact on blacks (in the last fiscal year for which data was available, 88.3% of crack defendants were black, 7.1% were hispanic, and only 4.1% were white); (iii) creates higher penalties for street dealers than for their more culpable suppliers; (iv) effects a double punishment on crack defendants in light of subsequent guideline changes; and (v) creates extraordinary disparities given the street values of the two forms of cocaine.

United States v. Gaines, No. CR 94-80821-1, at 7 (E.D.Mich. Nov. 13, 1995) (Mem.) (citations to Cocaine Report omitted). According to the district court, the Sentencing Commission’s failure to consider these factors warranted a departure under U.S.S.G. § 5K2.0 and 18 U.S.C. § 3553(b). Consequently, the court departed below the range specified in the Sentencing Guidelines, to the statutory minimum.

III.

We review a district court’s departure from the Sentencing Guidelines under an abuse of discretion standard. Koon, v. United States,— U.S.-,---, 116 S.Ct. 2035, 2046-48, 135 L.Ed.2d 392 (1996); United States v. Valentine, 100 F.3d 1209, 1210 (6th Cir.1996). Although we accord substantial deference to the district court, the level of deference is not absolute. “The deference that is due depends on the nature of the question presented.” Koon, at -, 116 S.Ct. at 2046. When considering factors for departure, for example, this Court grants the district court little deference. “[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 the point.” Id. at-, 116 S.Ct. at 2047.

IY.

Before addressing the parties’ arguments, we begin by establishing what this ease is not. It is not a constitutional challenge to the 100:1 ratio. This Court has rejected every constitutional challenge to the 100:1 ratio for crack and powder cocaine. See United States v. Smith, 73 F.3d 1414, 1417-18 (6th Cir.1996) (noting that this Court has rejected vagueness and substantive due process challenges to the 100:1 ratio); United States v. Lloyd, 10 F.3d 1197, 1220 (6th Cir.1993) (rejecting equal protection and substantive due process challenges); United States v. Tinker, 985 F.2d 241, 242 (6th Cir.1992) (same); United States v. Reece, 994 F.2d 277, 278-79 (6th Cir.1993) (rejecting disparate racial impact claim); United States v. Avant, 907 F.2d 623, 627 (6th Cir.1990) (rejecting equal protection, due process, and cruel and unusual punishment arguments). This case also is not a challenge to the district court’s refusal to depart downward. This Court has held that a district court’s refusal to depart downward based on the 100:1 ratio is unreviewable. United States v. Pickett, 941 F.2d 411, 417-18 (6th Cir.1991). Instead, we are asked today to decide for the first time whether a district court has statutory authority to depart downward because the Sentencing Commission — but not Congress- — decided that the 100:1 ratio should be eliminated.

The government makes three arguments. First, it claims that the Sentencing Commission’s alleged failure to consider the disparities created by the 100:1 ratio is not an appropriate ground for departure because it is not a sufficiently unusual circumstance to set Gaines apart from the heartland of crack cocaine cases.¹⁰ Second, the government argues that the district court erred in concluding that the Sentencing Commission had not adequately considered the bases for the 100:1 ratio prior to issuing the Cocaine Report. Third, the government maintains that the district court has no authority to depart downward from the 100:1 ratio because Congress made a clear policy choice in rejecting the Sentencing Commission’s proposed elimination of the sentencing disparity, and the courts may not disregard Congress’s will in this matter.

Gaines counters that the downward departure was warranted under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0 because the Sentencing Commission failed to consider the disparate impact of the 100:1 ratio when it originally formulated the Sentencing Guide- . lines. According to Gaines, the disparate racial and class impacts of the 100:1 ratio are two factors of a kind not adequately taken into account by the Sentencing Commission, and as such, they warrant a departure. Gaines also argues that Congress’s rejection of the Sentencing Commission’s proposed amendments does not invalidate his argument, because this rejection merely indicates that Congress was dissatisfied with a 1:1 ratio, while leaving open the possibility of the use of any other ratio greater than 1:1 and less than or equal to 100:1.

Gaines’s arguments boil down to the following propositions: By issuing the Cocaine Report, the Sentencing Commission implicitly admitted that it had not adequately considered many factors when it created the 100:1 ratio. These overlooked factors subsequently created several significant disparities. The disparities, therefore, comprise a mitigating circumstance “not adequately taken into consideration by the Sentencing Commission in formulating the guidelines,” see 18 U.S.C. § 3553(b), and consequently are a valid basis for a downward departure.

Notwithstanding Gaines’s arguments, we think the government’s third argument is dispositive on this point. Even if one perceives the Sentencing Commission’s Cocaine Report as an open admission that the Sentencing Commission did not adequately take into consideration the alleged disparities inherent in the 100:1 ratio, it is clear that Congress did take them into account because it (1) initially directed the Sentencing Commission in 1994 to reexamine the issue, (2) reviewed the Sentencing Commission’s Cocaine Report in 1995, and (3) affirmatively rejected the Sentencing Commission’s proposed amendments in October of 1995. In other words, Congress made a deliberate and informed decision to keep the 100:1 ratio and not to adopt the 1:1 ratio.

When Congress and the Sentencing Commission disagree on matters of sentencing policy, Congress trumps. Though Congress delegated broad authority to the Sentencing Commission to promulgate the Sentencing Guidelines and general policy statements, 28 U.S.C. § 994(a), neither could become effective until the Sentencing Commission, “submitted the initial set of sentencing guidelines to the Congress ... along with a report stating the reasons for the Commission’s recommendations.” Pub.L. No. 98-473, 98 Stat. 1837 (1984). Congress also reserved for itself the right to reject or modify any amendments to the Sentencing Guidelines proposed by the Sentencing Commission. 28 U.S.C. § 994(p). Where the Guidelines and a statute conflict, the statute (an act of Congress) controls. U.S.S.G. § 5G1.1(b) (where statutory minimum sentence is greater than maximum applicable guideline range, statutory minimum sentence trumps). Moreover, the Supreme Court, in upholding the constitutionality of the Sentencing Guidelines, reaffirmed Congress’s pre-eminent role in establishing sentencing ranges and the scope of judicial discretion. “Congress, of course, has the power to fix the sentence for a federal crime, United States v. Wiltberger, 18 U.S. 76, 5 Wheat. 76, 5 L.Ed. 37 (1820), and the scope of judicial discretion with respect to a sentence is subject to congressional control. Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916).” Mistretta v. United States, 488 U.S. 361, 364, 109 S.Ct. 647, 650-51, 102 L.Ed.2d 714 (1989).

Thus, contrary to Gaines’s assertion on appeal, Congress did not grant the courts broad discretion to apply the sentencing ratio of their choosing based on alleged injustices inherent in the 100:1 ratio. To allow individual judges to depart downward because of the 100:1 ratio would:

allow every sentencing district judge to select his or her personal crack-cocaine ratio, at any level between 100:1 (by denying departure) and 1:1. It is hard to imagine a more flagrant violation of the Guidelines’ purpose to avoid “unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.”

United States v. Anderson, 82 F.3d 436, 440 (D.C.Cir.), cert. denied,—U.S.-, 117 S.Ct. 375, 136 L.Ed.2d 264 (1996) (quoting 28 U.S.C. § 991(b)(1)(B)). Reasonable minds can differ as to whether Congress or the Sentencing Commission chose the best policy, but as long as the 100:1 ratio does not violate the Constitution, it is for Congress to make the policy choice, not the Sentencing Commission or the courts.

As the government argues, the district court also lacked the authority to depart downward because the sentencing disparities created by the 100:1 ratio do not set Gaines’s ease apart from the heartland of crack cases. As the Court stated in Koon, “[bjefore a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of eases in the Guideline.” Koon, at-, 116 S.Ct. at 2046. None of the factors listed by the district court in justifying its departure are particular to Gaines or to a subgroup of crack defendants. “In the absence of a characteristic or circumstance that distinguishes a case as sufficiently atypical to warrant a sentence different from that called for under the guidelines, a sentence outside the guideline range is not authorized.” U.S.S.G. § 5K2.0, comment.¹¹ Given these determinations, we need not address the government’s remaining argument that the Sentencing Commission adequately considered the bases for the 100:1 ratio when it promulgated the original Sentencing Guidelines, prior to issuing the Cocaine Report.

In rejecting the disparities inherent in the 100:1 ratio as invalid considerations for a downward departure under U.S.S.G. § 5K2.0 and 18 U.S.C. § 3553(b), we follow the established precedent of this Court. United States v. Welch, 97 F.3d 142, 154 (6th Cir.1996) (“This Court has held repeatedly that objections to the Sentencing Guidelines’ disparate punishments for crimes involving crack cocaine and cocaine powder are merit-less and the disparity is insufficient grounds for downward departure from guideline sentences.”). We also join every other circuit that has decided this issue after release of the Cocaine Report. The Eighth Circuit, for instance, has held that the “crack/powder ratio and its disparate impact are not ‘aggravating or mitigating circumstances’ particular to the appellants’ case which distinguish theirs from ‘heartland’ cases.” United States v. Lewis, 90 F.3d 302, 304 (8th Cir.1996), cert. denied,— U.S.-, 117 S.Ct. 713, 136 L.Ed.2d 632 (1997). The Leuns court specifically rejected the argument that the Cocaine Report and Congress’s order to the Sentencing Commission to submit new recommendations for drug sentencing are evidence that Congress had not considered the ratio’s disparate impact. Id. at 305-06. See also United States v. Fonts, 95 F.3d 372, 373 (5th Cir.1996); United States v. Maples, 95 F.3d 35, 37 (10th Cir.1996), cert. denied,—U.S.-, 117 S.Ct. 716, 136 L.Ed.2d 635 (1997); United States v. Canales, 91 F.3d 363, 369-70 (2d Cir.1996); United States v. Ambers, 85 F.3d 173, 177 (4th Cir.1996); Anderson, 82 F.3d at 438-39; United States v. Sanchez, 81 F.3d 9, 10-11 (1st Cir.1996), cert. denied,—U.S.-, 117 S.Ct. 201, 136 L.Ed.2d 137 (1996); United States v. Booker, 73 F.3d 706, 710 (7th Cir.1996).

V.

We hold that the district court lacked the authority to depart downward based on the 100:1 ratio. Congress has expressly rejected the Sentencing Commission’s proposed amendments eliminating the 100:1 ratio, and the eourts must honor this policy choice. Moreover, none of the facts or circumstances of this ease serve to remove it from the heartland of crack convictions. We, therefore, VACATE and REMAND for resentencing consistent with this opinion.

1 . The statutory authority for the district court's departure from the Sentencing Guidelines range is contained in 18 U.S.C. § 3553(b):

The court shall impose a sentence [within the Sentencing Guidelines range] unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.

18 U.S.C. § 3553(b).

Section 5K2.0 of the Sentencing Guidelines explicitly acknowledges this authority to depart:

Under 18 U.S.C. § 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described."

U.S. Sentencing Guidelines Manual § 5K2.0, p.s.(quoting 18 U.S.C. § 3553(b)).

2 . See. 18 U.S.C. § 3742(b).

3 . For example, the statute in its current amended form mandates a 5-year minimum and a 40-year maximum for anyone who traffics in either 5 grams of cocaine base or 500 grams of cocaine powder. 21 U.S.C. § 841 (b)(1)(B)(ii) & (iii). Similarly, a 10-year minimum and a life maximum apply to anyone convicted of trafficking in either 50 grams of cocaine base or 5 kilograms of cocaine powder. 21 U.S.C. § 841 (b)(1)(A)(ii) & (hi).

4 . Congress did not require the Sentencing Commission to adopt the 100:1 ratio in the Sentencing Guidelines. In 28 U.S.C. § 994, Congress granted to the Sentencing Commission broad discretion to establish the Sentencing Guidelines, including the sentencing ratio' of its choosing, provided the sentencing scheme met certain minimal requirements, including adherence to several sentencing policies as set forth in 18 U.S.C. § 3553(a)(2).

As promulgated, U.S.S.G. 2D1.1's Drug Quantity Table assigns a base offense level of 18 to anyone who traffics in either 1 to 2 grams of cocaine base or between 100 to 200 grams of powder cocaine. U.S.S.G. § 2D 1.1 (o)(1 1). Similarly, the Drug Quantity Table assigns a base offense level of 38 to anyone who traffics in 1.5 kilograms or more of cocaine base or 150 kilograms or more of powder cocaine. U.S.S.G. § 2D1.1(c)(1).

5 .The amendment process for the Sentencing Guidelines is described in 28 U.S.C. § 994(p):

The Commission ... may promulgate ... and submit to Congress amendments to the guidelines. ... Such an amendment or modification shall be accompanied by a statement of the reasons therefor and shall take effect on a date specified by the Commission, which shall be no earlier than 180 days after being so submitted and no later than the first day of November of the calendar year in which the amendment or modification is submitted, except to the extent that the effective date is revised or the amendment is otherwise modified or disapproved by Act of Congress.

The Sentencing Commission specified an effective date of November 1, 1995, for the proposed amendments. Amendments to the Sentencing Guidelines for the United States Courts, 60 Fed. Reg. 25074, 25074 (May 10, 1995).

6 . The Sentencing Commission proposed elimination of the 100:1 ratio and creation of sentencing parity by removing all references to cocaine base in the Drug Quantity Table, U.S.S.G. § 2Dl.l(c), and by replacing the definition of cocaine base with a broader definition of cocaine, which includes cocaine base:

Section 2D 1.1(c) is amended by deleting:

" 'Cocaine base,' for the purposes of this guideline, means 'crack.' 'Crack' is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.”, and inserting in lieu thereof:

" 'Cocaine,' for the purposes of this guideline, includes cocaine hydrochloride, cocaine base, and crack cocaine.”

7 . Congress's directive stated that ”[t]he United States Sentencing Commission shall submit to Congress recommendations (and an explanation therefor), regarding changes to the statutes and sentencing guidelines governing sentences for unlawful manufacturing, importing, exporting, and trafficking of cocaine and like offenses. Pub.L. No. 104-38, 109 Stat. 334 (October 30, 1995). Congress also mandated that the Sentencing Commission's recommendations should reflect several considerations: (1) that sentences for trafficking in crack cocaine generally exceed those for powder cocaine, (2) that high-level cocaine dealers generally receive longer sentences than low-level cocaine dealers, (3) that persons who traffic in powder cocaine with the knowledge that it will be converted to crack cocaine be sentenced as if they had trafficked in crack cocaine, and (4) that enhanced sentences should result from cases involving related criminal conduct. Id.

8 . Freeman pled guilty to a single count of Use of a Communication Facility in Committing a Drug Offense, in violation of 21 U.S.C. § 843(b). He is not a party to this appeal.

9 . Gaines’s base offense level for the drug counts was 38, because he possessed more than 1.5 kilograms of cocaine base. U.S.S.G. § 2D1.1(c)(1). Level 38 is the top of the Drug Quantity Table. Although Gaines did have four loaded handguns at his house, the two-level enhancement for possession of a firearm, U.S.S.G. § 2D1.1(b)(1), was not invoked. Gaines received the full three-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1, giving him a total offense level of 35. Because the adjusted offense level for the obliterated serial number firearm count was so much lower, it had no effect on the guideline range.

10 . The Introduction to the Sentencing Guidelines describes the heartland concept:

The Commission intends the sentencing courts to treat each guideline as carving out a "heartland," a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.

U.S.S.G. Ch.l Pt.A.4(b), p.s..

11 . Gaines attempts to establish what he considers an important distinction between factors "of a kind,” as opposed to factors present "to a degree,” not considered by the Commission. In particular, Gaines argues that when dealing with factors "of a kind” there is no need to show that the factor renders the case unusual. Gaines, however, cites no authority in the Sentencing Guidelines, statutes, or case law to support his assertion. On the contrary, precedent in this area supports the rule that departures are permitted only where there exists a circumstance of a kind or to a degree that renders the case unusual when compared to others governed by the same guideline. See Koon, at-, 116 S.Ct. at 2052.