Exum

MEMORANDUM *

Timothy Exum, an inmate already serving a sentence for bank robbery, was caught with possession of two grams of heroin and 2.5 milliliters of liquid morphine in prison. As a consequence, he incurred administrative punishment which included loss of 40-days “good time,” 45 days of “disciplinary segregation,” loss of visiting privileges for one year, and a recommendation for transfer to a higher-security facility-a transfer that caused him an *995 additional 83 days in “administrative detention.”

Almost two and a half years later, Exum was indicted for possession of contraband under 18 U.S.C. § 1791 (a)(2). After Exum pled guilty, the district court granted his request for a downward departure from § 2P1.2 based on “extreme punishment” due to the administrative sanctions previously imposed by the Bureau of Prisons. The court determined that a combination of unusual factors related to “extreme punishment” distinguished his case from the typical “heartland,” and further decided that these factors warranted a downward departure of four levels. The government appeals, arguing that 1) “excessive punishment based on administrative discipline” is not a permissible ground…