OCTOBER TERM, 1991
Syllabus
WILLIAMS
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 90-6297. Argued November 6, 1991-Decided March 9, 1992
Under the Sentencing Reform Act of 1984, the United States
Sentencing Commission has promulgated Guidelines establishing
sentencing ranges for different categories of federal offenses and
defendants. The Act allows a district court to depart from a
guideline range under certain circumstances, 18 U. S. C. § 3553(b),
and provides for limited appellate review of sentences, requiring a
remand for resentencing if a sentence (1) was imposed in violation
of law or "as a result of an incorrect application" of the
Guidelines, § 3742(f)(1), or (2) is an unreasonable departure from
the applicable guideline range, §3742(f)(2). Petitioner Williams
was convicted in the Federal District Court of possession of a
firearm by a convicted felon. The applicable sentencing range for
someone in his criminal history category and at his offense level
is 18 to 24 months. However, the District Court departed upward
from that range and sentenced him to 27 months' imprisonment,
determining that his criminal history category was inadequate
because it did not include two convictions that were too old to be
counted in the Guidelines' criminal history calculation and because
it did not reflect several prior arrests. The Court of Appeals
agreed that the convictions were reliable information indicating
more extensive criminal conduct than was reflected by Williams'
criminal history category, but it rejected the District Court's
reliance upon the prior arrests, finding that the Guidelines
prohibit a court from basing a departure on a prior arrest record
alone and that the District Court had not adequately explained the
factual basis for its use of those arrests as a ground for
departure. Although the District Court had used both proper and
improper factors to justify departure, the Court of Appeals
affirmed the sentence on the ground that it was reasonable in light
of the proper factors standing alone.
Held:
1. A reviewing court may, in appropriate circumstances, affirm a
sentence in which a district court's departure from a guideline
range is based on both valid and invalid factors. Pp. 197-202.
(a) Construing the plain language of the Guidelines and the Act,
it is an incorrect application of the Guidelines for a district
court to depart from the applicable sentencing range based on a
factor that the Commission has already fully considered in
establishing a guideline range or, as
194
Syllabus
in this case, on a factor that the Commission has expressly
rejected as a ground for departure. An "incorrect application of
the sentencing guidelines" occurs when the departure ground is
prohibited either by the Guidelines or by general policy statements
regarding the Guidelines' application, which the Commission is also
authorized to promulgate, 28 U. S. C. § 994(a)(2). A policy
statement is an authoritative guide to the meaning of the
applicable Guideline, and an error in the statement's
interpretation could lead to an incorrect determination that
departure was appropriate. Pp. 199-20l.
(b) When a district court relies upon an improper ground in
departing from a guideline range, a reviewing court may not affirm
a sentence based solely on its independent assessment that the
departure is reasonable under § 3742(f)(2). In order to give full
effect to both § 3742(f)(1) and §3742(f)(2), the reviewing court
must conduct separate inquiries under each provision to determine
whether a remand is required. It may not focus on one provision to
the exclusion of the other. pp. 201-202.
(c) Williams' argument that a remand is automatically required
under § 3742(f)(1) in order to rectify any "incorrect application"
of the Guidelines is rejected. A remand is required only if a
sentence is "imposed
as a result of an incorrect
application" of the Guidelines, i.
e., if the sentence would
have been different but for the district court's error. The party
challenging the sentence bears the initial burden of showing that
the district court relied upon an invalid factor at sentencing, but
not the burden of proving that the invalid factor was determinative
in the sentencing decision. Rather, once the court of appeals finds
that the district court misapplied the Guidelines, a remand is
appropriate unless the reviewing court determines that the error
was harmless. Pp. 202-203.
(d) If the court of appeals determines that a remand is not
required under § 3742(f)(1), it may affirm the sentence as long as
it is also satisfied that the departure is reasonable under
§3742(f)(2). The reasonableness determination looks to the amount
and extent of the departure in light of the grounds for departing.
In assessing reasonableness, a court must examine the factors to be
considered in imposing a sentence under the Guidelines and the
district court's stated reasons for the sentence's imposition.
§3742(e). A sentence can be "reasonable" even if some of the
district court's reasons justifying departure are invalid, provided
the remaining reasons are sufficient to justify the departure's
magnitude. Pp. 203-204.
(e) The limited appellate review of sentencing decisions does
not alter the traditional deference a court of appeals owes to a
district court's exercise of its sentencing discretion, and the
selection of the ap-
195
propriate sentence from within the guideline range and the
decision to depart from that range are left solely to the
sentencing court. Thus, when only some of the district court's
reasons for departure are invalid, an appellate court may not
affirm a sentence on the ground that the district court
could have based its departure on the remaining factors,
since the district court, once apprised of the errors in its
interpretation of the Guidelines, may have chosen a different
sentence. Pp. 204-205.
2. This Court declines to review the Court of Appeals'
determination regarding the reliability of Williams' outdated
convictions, because the propriety of the District Court's
consideration of nonsimilar outdated convictions was not clearly
presented in the petition for certiorari and was not briefed by
either party. Pp. 205-206.
3. The case is remanded for a determination whether the sentence
was imposed "as a result of" the District Court's erroneous
consideration of Williams' prior arrests, since it cannot be
ascertained whether the Court of Appeals concluded that the
District Court would have imposed the same sentence even without
relying upon Williams' prior arrest record or whether it affirmed
simply on the basis that the sentence was reasonable under
§3742(f)(2). P.206.
910 F.2d
1574, vacated and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and BLACKMUN, STEVENS, SCALIA, SOUTER, and
THOMAS, JJ., joined. WHITE, J., filed a dissenting opinion, in
which KENNEDY, J., joined,
post, p.207.
Kenneth H. Hanson, by appointment of the Court, 499 U. S.
973, argued the cause and filed briefs for petitioner.
Amy L. Wax argued the cause for the United States.
With her on the brief were Solicitor General Starr, Assistant
Attorney General Mueller, Deputy Solicitor General Bryson, and
Kathleen A. Felton.
JUSTICE O'CONNOR delivered the opinion of the Court. The
Sentencing Reform Act of 1984 (Act), as amended, 18 U. S. C. § 3551
et seq., 28 U. S. C. §§ 991-998, created the United States
Sentencing Commission and empowered it to promulgate guidelines
establishing sentencing ranges for different categories of federal
offenses and defendants. The
196
Act permits a district court to depart from the presumptive
sentencing range prescribed by the Sentencing Guidelines only in
certain circumstances. 18 U. S. C. § 3553(b). The Act also provides
for limited appellate review of sentences in order to ensure the
proper application of the Guidelines. § 3742. In this case, we
consider the scope of appellate review, under the Act, of a
sentence in which a district court has departed from the guideline
sentencing range.
I
Petitioner Joseph Williams, a previously convicted felon, was
the subject of an investigation conducted by the Bureau of Alcohol,
Tobacco and Firearms in 1988 and 1989. He was indicted and
convicted after a jury trial in the United States District Court
for the Western District of Wisconsin for possession of a firearm
while a convicted felon in violation of 18 U. S. C. §
922(g)(1).
The presentence report assigned Williams a criminal history
category of V. App. 48. Combined with an offense level of 9, the
applicable sentencing range under the Guidelines was 18 to 24
months.
Ibid. The District Court departed upward from this
range pursuant to § 4A1.3 of the Guidelines Manual, which allows a
district court to increase a criminal history classification if
"reliable information" indicates that the criminal history category
does not adequately reflect the seriousness of the defendant's
criminal background or propensity for future criminal conduct.
United States Sentencing Commission, Guidelines Manual § 4A1.3, p.
s. (Nov. 1991) (USSG). The District Court determined that Williams'
criminal history category was inadequate because it did not include
two convictions that were too old to be counted in the Guidelines'
criminal history calculation, see § 4A1.2(e)(1), and because it did
not reflect several prior arrests. App. 53-54. Citing these two
factors, the court looked to the next highest criminal history
category, for
197
which the guideline range was 21 to 27 months.
Id., at
5354. The court then sentenced Williams to 27 months' imprisonment
and explained that it was selecting a sentence at the high end of
the guideline range because Williams had previously been convicted
for the same offense and because he had threatened an undercover
agent in this case.
Id., at 55-56.1
The United States Court of Appeals for the Seventh Circuit
upheld the conviction and the sentence.
910 F.2d
1574 (1990). It agreed with the District Court that, under the
circumstances of this case, the two outdated convictions were
"reliable information" indicating more extensive criminal conduct
than was reflected by Williams' criminal history category.
Id., at 1579. It rejected, however, the District Court's
reliance upon Williams' prior arrests not resulting in prosecution.
Although the Guidelines allow a court to consider "prior similar
adult criminal conduct not resulting in a criminal conviction" in
determining whether a departure is warranted, they prohibit a court
from basing a departure on a prior arrest record alone. USSG §
4A1.3, p. s. The Court of Appeals asserted that "the determination
that the arrests indicated similar criminal conduct must be based
on facts apart from the arrest record itself," 910 F. 2d, at 1580,
and held that the District Court had not adequately explained the
factual basis for its use of Williams' prior arrests as a ground
for departure.
Ibid.
Although it invalidated one of the two grounds mentioned by the
District Court in its decision to depart, the Court of Appeals
nevertheless affirmed Williams' sentence. It relied upon the
Seventh Circuit precedent of
United States v.
Franklin, 902 F.2d
501 (CA7), cert. denied
sub nom. Mann
lOur reading of the sentencing transcript thus does not accord
with the dissent's understanding that the District Court also
considered Williams' prior conviction for the same offense in its
decision to depart. See
post, at 208.
198
v.
United States, 498 U. S. 906 (1990), which held that
when a sentencing court uses both proper and improper factors to
justify a departure, the sentence can be affirmed if it is
reasonable in light of the proper factors standing alone. 902 F.
2d, at 508-509. Applying
Franklin, the Court of Appeals
concluded that, despite the District Court's error in considering
Williams' prior arrest record, the court had "correctly determined
that Mr. Williams' criminality was not reflected properly in the
criminal history category and that the relevant evidence justified
the rather modest increase in sentence." 910 F. 2d, at 1580.
We granted certiorari, 499 U. S. 918 (1991), to resolve a
conflict among the Circuits on whether a reviewing court may affirm
a sentence in which a district court's departure from the guideline
range is based on both valid and invalid factors. Compare
United
States v.
Zamarripa, 905 F.2d
337, 342 (CAlO 1990) (when one or more of the stated grounds
for departure is invalid, the case must be remanded for
resentencing);
United States v.
Hernandez-Vasquez,
884 F. 2d 1314, 1315-1316 (CA9 1989) (same), with
United
States v.
Franklin, supra, at 508-509 (when one or more
of the stated grounds for departure is invalid, appellate court may
affirm if sentence is still reasonable in light of remaining
factors);
United States v.
Rodriguez, 882 F.2d
1059, 1066-1068 (CA6 1989) (same), cert. denied, 493 U. S. 1084
(1990);
United States v.
Hummer, 916 F.2d
186, 195, n. 8 (CA4 1990) (same), cert. denied, 499 U. S. 970
(1991).
II
The Act provides that a district court may depart from the
sentencing range set by the Guidelines only when it 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." 18 U. S. C. §
3553(b). A defendant may file an appeal if a sentence was imposed
in violation of law or as a
199
result of an incorrect application of the Guidelines, or if the
district court departed upward from the guideline range. § 3742(a).
Similarly, the Government may file an appeal if a sentence was
imposed in violation of law or as a result of an incorrect
application of the Guidelines, or if the district court departed
downward from the guideline range. §3742(b).
For both types of appeal, § 3742(f) delineates the following
narrow scope of review:
"If the court of appeals determines that the sentence-
"(1) was imposed in violation of law or imposed as a result of
an incorrect application of the sentencing guidelines, the court
shall remand the case for further sentencing proceedings with such
instructions as the court considers appropriate;
"(2) is outside the applicable guideline range and is
unreasonable or was imposed for an offense for which there is no
applicable sentencing guideline and is plainly unreasonable, it
shall state specific reasons for its conclusions and-
"(A) if it determines that the sentence is too high and the
appeal has been filed [by the defendant], it shall set aside the
sentence and remand the case for further sentencing proceedings
with such instructions as the court considers appropriate;
"(B) if it determines that the sentence is too low and the
appeal has been filed [by the Government], it shall set aside the
sentence and remand the case for further sentencing proceedings
with such instructions as the court considers appropriate;
"(3) is not described in paragraph (1) or (2), it shall affirm
the sentence."
A
In the case before us, Williams urges that the District Court's
use of his arrest record as a ground for departure was a
misapplication of the Guidelines and that the "incor-
200
rect application" standard of § 3742(f)(1) means that once a
departure ground is invalidated, a remand is always in order. The
Government does not dispute that a district court's reliance upon
an invalid factor in departing from the guideline sentencing range
is appropriately characterized as an "incorrect application" of the
Guidelines, but contends that a remand is only required when the
error was determinative in the decision to depart.
We agree with both parties that a sentencing court's use of an
invalid departure ground is an incorrect application of the
Guidelines. The Guidelines echo the Act's instruction that a
district court may depart from the applicable guideline range only
when it finds an aggravating or mitigating circumstance "'not
adequately taken into consideration by the Sentencing Commission'"
in formulating the Guidelines. USSG § lA4(b), p. s., § 5K2.0, p. s.
(both quoting 18 U. S. C. § 3553(b)). Construing the plain language
of the Guidelines Manual and the governing statute, we conclude
that it is an incorrect application of the Guidelines for a
district court to depart from the applicable sentencing range based
on a factor that the Commission has already fully considered in
establishing the guideline range or, as in this case, on a factor
that the Commission has expressly rejected as an appropriate ground
for departure.
Congress has defined "guidelines" as "the guidelines promulgated
by the commission pursuant to section 994(a)." 28 U. S. C. §
998(c). Section 994(a) grants the Commission the authority to
promulgate both "guidelines," § 994(a)(1), and "general policy
statements regarding application of the guidelines," § 994(a)(2).
The dissent draws a distinction between the "actual" guidelines and
the policy statements that "interpre[t]" and "explai[n]" them; in
the dissent's view, only the former can be incorrectly applied
within the meaning of 18 U. S. C. § 3742(f)(1).
Post, at
211-212. But to say that guidelines are distinct from policy
statements is not to say that their meaning is unaffected by policy
statements.
201
Where, as here, a policy statement prohibits a district court
from taking a specified action, the statement is an authoritative
guide to the meaning of the applicable Guideline. An error in
interpreting such a policy statement could lead to an incorrect
determination that a departure was appropriate. In that event, the
resulting sentence would be one that was "imposed as a result of an
incorrect application of the sentencing guidelines" within the
meaning of § 3742(f)(1).2 Similarly, an erroneous calculation under
the Sentencing Table, from which all Guidelines sentencing ranges
are derived, could properly be reviewed as an "incorrect
application of the sentencing guidelines" under § 3742(f)(1) even
though the Table itself is not officially designated as a
"guideline." See USSG ch. 5, pt. A.
Because use of a departure ground prohibited by a policy
statement can be an "incorrect application" of the Guidelines under
§ 3742(f)(1), we also agree with both Williams and the Government
that, when a district court relies upon an improper ground in
departing from the guideline range, a reviewing court may not
affirm a sentence based solely on its independent assessment that
the departure is reasonable under § 3742(f)(2). Section 3742(f)
specifies two circum-
2 The dissent states that an error in interpreting a policy
statement governing departures "is not, in itself, subject to
appellate review."
Post, at 212. The dissent believes that
all departure decisions must be reviewed under the "reasonableness"
standard of §3742(f)(2) and that the "reasonableness" determination
includes an assessment of whether the district court properly found
an "'aggravating or mitigating circumstance ... not adequately
taken into consideration by the Sentencing Commission in
formulating the guidelines.'''
Post, at 218 (quoting 18 U.
S. C. § 3553(b)). But, in determining whether a circumstance was
adequately taken into consideration, a court must consider "the
sentencing guidelines, policy statements, and official commentary
of the Sentencing Commission." § 3553(b). Thus, the dissent would
appear to agree that an appellate court
can review the
validity of a district court's reasons for departure for
consistency with the Commission's policy statements; it simply
considers that inquiry to go to the "reasonableness" of the
decision to depart rather than to the correct application of the
Guidelines.
202
stances in which a court of appeals must remand for
resentencing: if the sentence was imposed as a result of an
incorrect application of the Guidelines or if the sentence is an
unreasonable departure from the applicable guideline range. The
statute does not allow a court to focus on one remand provision to
the exclusion of the other.
We do not believe that the dissent's contrary conclusion is
supported by declarations from Congress and the Sentencing
Commission which state that departure sentences are reviewable
under § 3742(f)(2).
Post, at 209-210, 212-213. We are unable
to find any indication in those statements that departures from the
Guidelines are to be reviewed
exclusively under §
3742(f)(2). Thus, we believe that, while departure decisions are
properly reviewed under § 3742(f)(2), they are
also properly
reviewed under §3742(f)(1) when they are the result of an incorrect
application of the Guidelines (considered in light of the relevant
policy statements) that govern departure decisions. In order to
give full effect to both provisions, therefore, the reviewing court
is obliged to conduct two separate inquiries. First, was the
sentence imposed either in violation of law or as a result of an
incorrect application of the Guidelines? If so, a remand is
required under § 3742(f)(1). If the court concludes that the
departure is not the result of an error in interpreting the
Guidelines, it should proceed to the second step: is the resulting
sentence an unreasonably high or low departure from the relevant
guideline range? If so, a remand is required under §
3742(f)(2).
Williams argues further that whenever a court of appeals finds
that a district court considered an erroneous factor in sentencing,
a remand is automatically required under § 3742(f)(1) in order to
rectify an "incorrect application" of the Guidelines. We disagree.
Section 3742(f)(1) does not call for a remand every time a
sentencing court might misapply a provision of the Guidelines;
rather, remand is required only if the sentence was "imposed
as
a result of an incorrect
203
application" of the Guidelines. When a district court has not
intended to depart from the Guidelines, a sentence is imposed "as a
result of" an incorrect application of the Guidelines when the
error results in the district court selecting a sentence from the
wrong guideline range. When a district court has intended to depart
from the guideline range, a sentence is imposed "as a result of" a
misapplication of the Guidelines if the sentence would have been
different but for the district court's error. Accordingly, in
determining whether a remand is required under §3742(f)(1), a court
of appeals must decide whether the district court would have
imposed the same sentence had it not relied upon the invalid factor
or factors.
We conclude that the party challenging the sentence on appeal,
although it bears the initial burden of showing that the district
court relied upon an invalid factor at sentencing, does not have
the additional burden of proving that the invalid factor was
determinative in the sentencing decision. Rather, once the court of
appeals has decided that the district court misapplied the
Guidelines, a remand is appropriate unless the reviewing court
concludes, on the record as a whole, that the error was harmless,
i.
e., that the error did not affect the district court's
selection of the sentence imposed. See Fed. Rule Crim. Proc.
52(a).
B
If the party defending the sentence persuades the court of
appeals that the district court would have imposed the same
sentence absent the erroneous factor, then a remand is not required
under § 3742(f)(1), and the court of appeals may affirm the
sentence as long as it is also satisfied that the departure is
reasonable under § 3742(f)(2). The reasonableness determination
looks to the amount and extent of the departure in light of the
grounds for departing. In assessing reasonableness under §
3742(f)(2), the Act directs a court of appeals to examine the
factors to be considered in imposing a
204
sentence under the Guidelines, as well as the district court's
stated reasons for the imposition of the particular sentence. §
3742(e). A sentence thus can be "reasonable" even if some of the
reasons given by the district court to justify the departure from
the presumptive guideline range are invalid, provided that the
remaining reasons are sufficient to justify the magnitude of the
departure.
c
The dissent interprets the "reasonableness" standard of §
3742(f)(2) to be the sole provision governing appellate review of
departure decisions. The dissent also posits a twostep test of
reasonableness: the appellate court must determine the
reasonableness of the district court's decision to depart based on
the court's stated reasons for departure,
post, at 218, and
the appellate court must determine the reasonableness of the amount
or extent of departure,
post, at 218-220. This is similar to
our two-step inquiry, see
supra, at 201-202, for determining
when a remand is required. The dissent thus agrees that "[w]here
all the reasons enunciated by the district court to support
departure are found to be invalid," the appellate court "must set
aside the sentence and remand the case,"
post, at 218,
although it would find such a remand necessary because "the
departure is
per se unreasonable,"
ibid., and not
because it was imposed "as a result of" an incorrect application of
the Guidelines. When some but not all of the district court's
reasons for departure are invalid, however, the dissent's position
requires the appellate court to consider whether the district court
could have based its departure on the remaining factors,
post, at 219, and not whether it
would still have
chosen so to act,
supra, at 203.
In practical effect, therefore, the divergence of the dissent's
interpretation of the statute from our own is in the degree of an
appellate court's authority to affirm a sentence when the district
court, once made aware of the errors in its interpretation of the
Guidelines, may have chosen a different
205
sentence. Although the Act established a limited appellate
review of sentencing decisions, it did not alter a court of
appeals' traditional deference to a district court's exercise of
its sentencing discretion. The selection of the appropriate
sentence from within the guideline range, as well as the decision
to depart from the range in certain circumstances, are decisions
that are left solely to the sentencing court. USSG § 5K2.0, p. s.
The development of the guideline sentencing regime has not changed
our view that, except to the extent specifically directed by
statute, "it is not the role of an appellate court to substitute
its judgment for that of the sentencing court as to the
appropriateness of a particular sentence."
Solem v.
Helm, 463 U.
S. 277, 290, n. 16 (1983).
Significantly, Congress amended the Act in 1986 to delete
certain provisions that authorized an appellate court to correct a
sentence determined to have been imposed as a result of an
incorrect application of the Guidelines. See Criminal Law and
Procedure Technical Amendments Act of 1986, § 73, 100 Stat. 3617.
That action confirms our belief that it is the prerogative of the
district court, not the court of appeals, to determine, in the
first instance, the sentence that should be imposed in light of
certain factors properly considered under the Guidelines.
III A
At oral argument in this Court, petitioner's counsel contended
that both of the District Court's stated grounds for departure were
invalid and therefore that Williams' sentence must have resulted
from an incorrect application of the Guidelines. Tr. of Oral Arg.
42-43. Counsel argued that not only was it improper for the
District Court to rely upon Williams' prior arrest record, but also
that the Guidelines prevented the court from considering
convictions more than 15 years old.
Id., at 43. The
Guidelines explicitly authorize
206
a district court to base a departure on outdated convictions
that are "evidence of similar misconduct," see USSG § 4A1.2,
comment., n. 8, but the Circuits are divided as to whether, by
implication, they prohibit a departure based on nonsimilar outdated
convictions. Compare,
e. g., United States v.
Aymelek, 926 F.2d
64, 72-73 (CA1 1991) (nonsimilar outdated convictions may be
appropriate grounds for departure);
United States v.
Russell, 905 F.2d
1439, 1444 (CAlO 1990) (same), with
United States v.
Leake, 908 F.2d
550, 554 (CA9 1990) (upward departure can never be based on
nonsimilar outdated convictions). In this case, the propriety of
the District Court's consideration of Williams' nonsimilar outdated
convictions was not clearly presented in the petition for
certiorari and was not briefed by either party. Accordingly, we
decline to review the Court of Appeals' determination that
Williams' outdated convictions were reliable information that his
criminal history category understated the extent of his criminal
background. See 910 F. 2d, at 1578-1579.
B
The Court of Appeals was obliged to review, under both remand
provisions of § 3742(f), a departure from the guideline range in
which it found one of the two stated grounds for departure to be
valid and the other to be invalid. We are unable to ascertain from
its opinion whether the Court of Appeals concluded that the
District Court would have imposed the same sentence even without
relying upon Williams' prior arrest record, see § 3742(f)(1), or
whether it affirmed simply on the basis that the sentence was
reasonable under § 3742(f)(2). We therefore vacate the judgment
below affirming Williams' sentence, and remand the case for a
determination whether the sentence was imposed "as a result of" the
District Court's erroneous consideration of his prior arrests not
resulting in prosecution.
It is so ordered.
207
JUSTICE WHITE, with whom JUSTICE KENNEDY joins, dissenting.
Title 18 U. S. C. § 3553(b),1 a section of the Sentencing Reform
Act of 1984 (Act), as amended, 18 U. S. C. § 3551
et seq.
and 28 U. S. C. §§ 991-998, directs that in sentencing a convicted
defendant, the district court shall impose a sentence of the kind
and within the range referred to in § 3553(a)( 4) 2 and established
under the Guidelines issued by the Sentencing Commission, "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." If the court departs from the sentence that would be
imposed within the range established pursuant to § 3553(a)(4), it
must
1 Section 3553(b) in relevant part states:
"(b) Application of guidelines in imposing a sentence.-The court
shall impose a sentence of the kind, and within the range, referred
to in subsection (a)(4) 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."
2 Section 3553(a)(4) states in full:
"(a) Factors to be considered in imposing a sentence.-The court
shall impose a sentence sufficient, but not greater than necessary,
to comply with the purposes set forth in paragraph (2) of this
subsection. The court, in determining the particular sentence to be
imposed, shall consider-
"(4) the kinds of sentence and the sentencing range established
for the applicable category of offense committed by the applicable
category of defendant as set forth in the guidelines that are
issued by the Sentencing Commission pursuant to 28 U. S. C.
994(a)(1) and that are in effect on the date the defendant is
sentenced .... "
208
state the specific reasons for such departure, § 3553(c).3 If
there is an upward departure the defendant may appeal. §
3742(a)(3).4
In the case before us, the District Court determined that the
applicable guideline range inadequately depicted the defendant's
criminality for three specific reasons, and that there should
accordingly be an upward departure. The defendant, petitioner here,
appealed. The Court of Appeals found one of the reasons given by
the trial court to be invalid, but on the basis of the other two
reasons, which were acceptable, it affirmed the sentence imposed.
Petitioner claims that the Court of Appeals should have remanded to
the District Court for resentencing.
Whether remand was required turns on the meaning and application
of § 3742(f), which provides in full:
"(f) Decision and disposition.-If the court of appeals
determines that the sentence-
3 Section 3553(c) in relevant part states:
"(c) Statement of reasons for imposing a sentence.-The court, at
the time of sentencing, shall state in open court the reasons for
its imposition of the particular sentence, and, if the
sentence-
"(1) is of the kind, and within the range, described in
subsection (a)(4) and that range exceeds 24 months, the reason for
imposing a sentence at a particular point within the range; or
"(2) is not of the kind, or is outside the range, described in
subsection (a)(4), the specific reason for the imposition of a
sentence different from that described."
4 Section 3742(a)(3) states in full:
"(a) Appeal by a defendant.-A defendant may file a notice of
appeal in the district court for review of an otherwise final
sentence if the sentence-
"(3) is greater than the sentence specified in the applicable
guideline range to the extent that the sentence includes a greater
fine or term of imprisonment, probation, or supervised release than
the maximum established in the guideline range, or includes a more
limiting condition of probation or supervised release under section
3563(b)(6) or (b)(ll) than the maximum established in the guideline
range .... "
209
"(1) was imposed in violation of law or imposed as a result of
an incorrect application of the sentencing guidelines, the court
shall remand the case for further sentencing proceedings with such
instructions as the court considers appropriate;
"(2) is outside the applicable guideline range and is
unreasonable or was imposed for an offense for which there is no
applicable sentencing guideline and is plainly unreasonable, it
shall state specific reasons for its conclusions and-
"(A) if it determines that the sentence is too high and the
appeal has been filed under subsection (a), it shall set aside the
sentence and remand the case for further sentencing proceedings
with such instructions as the court considers appropriate;
"(B) if it determines that the sentence is too low and the
appeal has been filed under subsection (b), it shall set aside the
sentence and remand the case for further sentencing proceedings
with such instructions as the court considers appropriate;
"(3) is not described in paragraph (1) or (2), it shall affirm
the sentence."
In arriving at its conclusion that there must be a remand in
this case, the majority of the Justices of this Court have
concluded that there was both "an incorrect application of the
sentencing guidelines," § 3742(f)(1), and a sentence "outside the
applicable guideline range," § 3742(f)(2). Also being of the view
that the Court of Appeals did not fully deal with the former
subsections, the majority orders a remand to the Court of
Appeals.
It is my view, however, that where there is a departure from the
applicable guideline range, any appeal is governed by § 3742(f)(2)
alone, and not also by § 3742(f)(1). This appears to be the view of
the United States Sentencing Commission:
210
"Pursuant to the Act, the sentencing court must select a
sentence from within the guideline range. If, however, a particular
case presents atypical features, the Act allows the court to depart
from the guidelines and sentence outside the prescribed range. In
that case, the court must specify reasons for departure. 18 U. S.
C. § 3553(b). If the court sentences within the guideline
range, an appellate court may review the sentence to determine
whether the guidelines were correctly applied. If the court
departs from the guideline range, an appellate court may
review the reasonableness of the departure. 18 U. S. C. §3742."
United States Sentencing Commission, Guidelines Manual § lA.2, p.
s. (Nov. 1991) (emphasis added).
The errors disposed of on appeal under § 3742(f) are to be
determined under § 3742(e), which provides explicitly that, when
reviewing the sentence imposed by the district court, the court on
appeal shall determine only whether the sentence (1) was imposed in
violation of law; (2) was imposed as a result of an incorrect
application of the Sentencing Guidelines; (3) is outside the
applicable guideline range and is unreasonable; or (4) was imposed
for an offense for which there is no applicable Sentencing
Guideline and is plainly unreasonable.5 For purposes of disposition
by the appellate court, subsection (f) groups the first two and
last two types of error together. The determination of error,
however, occurs under subsection (e), which plainly identifies four
wholly separate and distinguishable types of sentencing error-a
nuance overlooked by the majority of the Court. Subsections (e)(2)
and (e)(3), when read together, address different possible errors,
each exclusive of the other: (e)(2) deals with possible
misapplication of the Guidelines by the district court
5For its part, §3742(e) simply mirrors the four separate grounds
for appeal available to a defendant, §3742(a), and to the
Government, §3742(b).
211
when determining and sentencing within the applicable guideline
range; (e) (3) deals with possible errors by the district court
when departing from the applicable guideline range.6 Indeed, the
majority-as well as both parties in their briefs on the merits and
in response to our request for supplemental briefing-fails to
define what the phrase "incorrect application of the sentencing
guidelines" means. Absent such understanding, it is impossible to
apply these appellate review provisions with any hope of meeting
Congress' intent.
We deal here with a faulty interpretation of a policy statement,
USSG § 4A1.3, p. s., by the District Court when deciding to depart
from the otherwise applicable guideline range. Policy statements,
however, even though contained in the Guidelines Manual, are not
"guidelines" as referred to in § 3742(e)(2) and defined in the Act,
28 U. S. C. § 998(c), as "the guidelines promulgated by the
Commission pursuant to section 994(a)." Congress has clearly
distinguished between Guidelines and policy statements. The former
are "for use of a sentencing court in determining the sentence to
be imposed in a criminal case." § 994(a)(1). The latter are simply
instructions "regarding application of the guidelines or any other
aspect of sentencing or sentence implementation" furthering the
purposes of the Act. § 994(a)(2). Only the Guidelines promulgated
pursuant to § 994(a)(1) playa direct
6 Commentary by the Chairman of the United States Sentencing
Commission, Judge William Wilkins, Jr., of the Fourth Circuit,
confirms this approach. See Wilkins, Sentencing Reform and
Appellate Review, 46 Wash. & Lee L. Rev. 429, 437-444 (1989).
His discussion of appellate review of guideline departures focused
on the recognition that "the language of subsections 3742(e)(3) and
(f)(2) ... pertain[s] to consideration and disposition of a
departure sentence appeal."
Id., at 441. Indeed, the plain
language of the controlling statute so clearly dictated this
approach that his discussion nowhere even recognizes the
possibility that subsections (e)(2) and (f)(1) are implicated on
the appellate review of a departure sentence. This view has carried
the day in the Fourth Circuit. See
United States v.
Summers, 893 F.2d
63, 64-67 (1990) (opinion of Wilkins, J.).
212
role in the calculation of points pertaining to the offense
level and criminal history category reduced into the Sentencing
Table, USSG § 5A, from which the applicable guideline range is
drawn. 7 It follows that "application of the sentencing guidelines"
refers only to those Guidelines relevant to the construction of the
applicable guideline range.8
Even though policy statements are numbered and grouped in the
Guidelines Manual by means identical to actual Guidelines, see USSG
§ 1Bl.6, their purpose is limited to interpreting and explaining
how to apply the Guidelines, andsignificantly-"may provide guidance
in assessing the reasonableness of any departure from the
guidelines," § 1Bl. 7. While the district court must consider
policy statements when determining the appropriate sentence, see 18
U. S. c. § 3553(a)(5), the Act's legislative history could not have
been more explicit that an error in their interpretation is not, in
itself, subject to appellate review:
"It should be noted that a sentence that is inconsistent with
the sentencing guidelines is subject to appellate review, while
one that is consistent with guidelines but inconsistent with the
policy statements is not. This is not intended to undermine the
value of the policy statements. It is, instead, a recognition that
the policy statements may be more general in nature than the
guidelines and thus more difficult to use in determining the right
to appellate review." S. Rep. No. 98-225,
7 The interrelationship of subsections (a)(4), (b), and (c) of §
3553 compels this conclusion. See
supra, at 207-208. For
within these subsections, all reference ultimately is to those
actual Guidelines, as opposed to policy statements, promulgated
pursuant to 28 U. S. C. § 994(a)(I).
8 The majority misinterprets this conclusion to be only that
formally designated Guidelines "can be incorrectly applied within
the meaning of 18 U. S. C. §3742(f)(1)."
Ante, at 200. What
I plainly conclude, however, is that
only these Guidelines
are part of the district court's calculus when constructing the
applicable guideline range, and it was to the propriety of this
construction that Congress addressed itself in § 3742(e)(2).
213
p. 167 (1983) (emphasis added; footnote omitted) (hereinafter S.
Report).9
The legislative history to 18 U. S. C. § 355710 is equally clear
in this regard:
"The provisions for appellate judicial review of sentences in
section 3742 are designed to reduce materially any remaining
unwarranted disparities by giving the right to appeal a sentence
outside the guidelines and by providing a mechanism to assure
that sentences inside the guidelines are based on correct
application of the guidelines." S. Report 86 (emphasis
added).
The majority of the Justices asserts that, because one of three
reasons for the upward departure imposed here by the District Court
was invalid, an "incorrect application of the
9 The legislative history behind the nature, role, and purpose
of the district court's statement pursuant to 18 U. S. C. § 3553(c)
of its reasons for imposing a particular sentence is similarly
instructive:
"The statement of reasons for a sentence outside the guidelines
is especially important. Under proposed 18 U. S. C. 3742, a
defendant may appeal a sentence above the applicable guidelines,
and the government may appeal a sentence below the guidelines.
If the appellate court finds that a sentence outside the
guidelines is unreasonable, the case may be remanded to the trial
court for resentencing .... The statement of reasons will play an
important role in evaluation of the reasonableness of the
sentence. In fact, if the sentencing judge fails to give
specific reasons for a sentence outside the guidelines, the
appellate court would be justified in returning the case to the
sentencing judge for such a statement.
"Sentences within the guidelines are subject to appeal under
proposed 18 U. S. C. 3742
on grounds of illegality or an
incorrect application of the guidelines. As with sentences
outside the guidelines, the statement of reasons may playa role in
the appellate court's decision on the legality of sentences. The
statement of reasons in cases claiming incorrect application of the
guidelines will probably play only a minor role in the appellate
process because the sentencing court will be deciding factual
issues concerning offense and offender characteristics which might
not be discussed in the statement of reasons." S. Report 80
(emphasis added).
10 "Review of a sentence. The review of a sentence imposed
pursuant to section 3551 is governed by the provisions of section
3742." §3557.
214
sentencing guidelines" within the meaning of § 37 42(e )(2) took
place in this case.ll As I have explained, however, this phrase
refers only to the process by which the district court determines
the applicable range of sentences when applying the "guidelines,"
as defined by 28 U. s. C. § 998(c). The majority does not-and
indeed
can not-identify or claim that any error in
determining the guideline range under the Guidelines is involved in
this case. Instead, the majority does no more than declare that
invalidly finding an aggravat-
11 This confusion apparently stems from both parties' citation
of
United States v.
Hernandez-Vasquez, 884 F.2d
1314 (CA9 1989)
(per curiam), and
United
States v.
Zamarripa, 905 F.2d
337 (CAlO 1990), in support of the proposition that, when one
or more of the stated grounds for departure is invalid, the case
must be remanded for resentencing. Be that as it may, neither case
has concluded that the sentence should be treated as "an incorrect
application of the sentencing guidelines," within the meaning of
§3742(f)(1), when reviewing district court departures that rely on
both proper and improper grounds. Not only do neither of these
cases so hold, but neither case in any way purports to explain,
much less cite, §3742. Instead, both cases simply rely on
United
States v.
Nuno-Para, 877 F. 2d
1409,1412-1414
(CA9 1989), for the above proposition. Also in reliance on
Nuno-Para, Zamarripa added that the appellate court "cannot
determine whether the same departure would have resulted absent the
improper factor." 905 F. 2d, at 342. But
Nuno-Para itself
fails to cite, discuss, or explain §3742. The Ninth Circuit there
simply concluded that "we must hold that the district court's
departure was
unreasonable because it improperly relied on
factors already considered by the guidelines." 877 F. 2d, at 1414
(emphasis added). While such a construction of the review for
"reasonableness" is too limited, see
infra, at 217-220, any
such consideration on appeal is clearly taken under §3742(f)(2).
Moreover, a close study of the appellate review outlined by the
Tenth Circuit in
Zamarripa reveals that it in fact generally
conforms to the approach outlined by my opinion here. See 905 F.
2d, at 339-340; see also
United States v.
White,
893 F.2d
276, 277-278 (CAlO 1990);
United States v.
Diaz-
Villafane, 874
Consequently, no case has been brought to our attention that has
considered reliance upon both proper and improper grounds for
departure to be "an incorrect application of the sentencing
guidelines" within the meaning of §3742(f)(1). That the parties
attempt to concede this point should not prevent our own scrupulous
reading of these statutes, lest we disturb Congress' intent, which
I find to be clearly expressed.
215
ing circumstance not adequately taken into account by the
Sentencing Commission is an "'incorrect application' of the
Guidelines," while referring only to two policy statements
contained in the Guidelines Manual, see USSG §§ lA4(b), p. s., and
5K2.0, p. s., which, the majority says, do no more than echo the
statute.12
Ante, at 200. Since the policy statements
referred to by the majority merely refer to the statute, the
majority's confusion about the distinction between Guidelines and
policy statements is without import. But the majority concludes
that the "Guidelines" -and we have here at issue only a policy
statement, USSG § 4A1.3, p. s.-qualify the propriety of basing a
departure on arrest records, and that the District Court erred in
relying on arrest records without further explanation. To the
extent that the majority equates the District Court's
misinterpretation of this policy statement with a misapplication of
the Guidelines that must be dealt with under § 3742(f)(1), it does
so erroneously. Such error by the District Court signifies
only an invalid grounds for departure, nothing more. While
the majority concludes that such a policy statement "prohibits a
district court from taking a specified action" and thereby "is an
authoritative guide to the meaning of the applicable Guideline,"
ante, at 201, it remains a fact that this statute does not
permit appellate review for the mere misinterpretation of a policy
statement, see
supra, at 212-213.
Significantly, subsections (a) and (b) of § 3742 do not
authorize appeal of a sentence imposed within the guideline range
correctly determined under the Sentencing Guidelines. And if any
alleged error is found to be without basis, the appellate court
"shall affirm the sentence." 18 U. S. C.
12 I point the majority to the language of one of the policy
statements it cites: USSG § 1A.4(b), p. s. When discussing guided
departures of the type referred to in § 4A1.3, p. s., the
Sentencing Commission states that it "intends such suggestions as
policy guidance for the courts. The Commission expects that most
departures will reflect the suggestions
and that the courts of
appeals may prove more likely to find departures 'unreasonable'
where they fall outside suggested levels" (emphasis added).
216
§ 3742(f)(3). Thus, appellate review under § 3742(f)(1) has a
much more focused inquiry than that given it by the majority. A
sentence is imposed "as a result of" an incorrect application of
the Sentencing Guidelines when the error results in a mistaken
guideline range. When such an error is identified, remand is
required.13 To obtain relief under subsection (f)(1) insofar as it
relates to a misapplication of the Guidelines, the appellant must
demonstrate that an error has occurred that affects the applicable
guideline range.14
13 Contrary to the majority's conclusion,
ante, at
202-203, appellate review of departure sentences under §3742 does
not accommodate "harmless-error" review. Subsections (f)(I) and
(f)(2) both explicitly direct that, if appellate review discloses
an error listed in subsection (e), the court "shall" remand for
resentencing. As originally enacted, 18 U. S. C. §3742 would have
authorized an appellate court to "correct the sentence" determined
to have been imposed in violation of law or as a result of an
incorrect application of the sentencing guidelines. Pub. L. 98-473,
§ 213(a), 98 Stat. 2012. However, "[a]fter consideration, Congress
determined that it was more appropriate for an appellate court to
remand a case for further sentencing proceedings in all instances
in which the district court decision was reversed, thereby leaving
imposition of the final sentence to the district court." Wilkins,
46 Wash. & Lee L. Rev., at 433; see Pub. L. 99-646, § 73, 100
Stat. 3617. Deeming an error "harmless" does not conform with the
appellate court's mandate. See
United States v.
Stephenson, 887 F.2d
57, 62
(CA5 1989), cert. denied
sub nom. Goff v.
United States, 493 U. S. 1086 (1990).
14 The unfortunate result of the majority's contrary conclusion,
based as it is on an unnatural reading of this statute, is that
appellate review becomes a quite complicated exercise, one which
will apparently involve shifting "burdens" in the search for the
subjective intent of the district court to determine whether "the
sentence would have been different but for the district court's
error."
Ante, at 203. The baldness of this assertion is
matched only by the total lack of guidance the majority provides to
control this inquiry, apart from its opaque instruction that the
appellate courts somehow "must decide whether the district court
would have imposed the same sentence had it not relied upon the
invalid factor or factors."
Ibid. This will likely provide
the fodder for later confusion and conflict among the circuits,
which I believe we could here avoid by a straightforward reading of
this statute.
217
Looking to this case, there is no question but that the District
Court correctly applied the relevant Guidelines to derive the
properly applicable guideline range. The "Guideline" Williams
places at issue, USSG § 4A1.3, p. s., is specifically designated as
a policy statement, dealing only with considerations of whether the
criminal history category calculated under the Guidelines was so
inadequate as to warrant a departure. This provision is solely to
guide a district court's discretion should it find departure from
the Guidelines appropriate. Because the District Court's error here
in construing this policy statement could in no way affect the
applicable guideline range, Williams is not entitled to relief
pursuant to subsections 3742(e)(2) and (f)(1).
Accordingly, the only available appellate consideration here is
whether Williams' sentence "is outside the applicable guideline
range and is unreasonable." 18 U. S. C. § 3742(f)(2). This inquiry
is guided solely by § 3742(e)(3), which states in full:
"(e) Consideration.-Upon review of the record, the court of
appeals shall determine whether the sentence-
"(3) is outside the applicable guideline range, and is
unreasonable, having regard for-
"(A) the factors to be considered in imposing a sentence, as set
forth in chapter 227 of this title; and
"(B) the reasons for the imposition of the particular sentence,
as stated by the district court pursuant to the provisions of
section 3553(c) .... "
Subsection (e)(3)(A) in fact refers to § 3553(a), designating
"factors to be considered in imposing a sentence." 15 It should be
noted as well that the reasons to be assessed pur-
15 Briefly recited, these factors include,
inter alia,
the seriousness of the offense, deterrence, public protection, the
applicable guideline range, pertinent policy statements, and
avoidance of unwarranted sentencing disparities. 18 U. S. C. §
3553(a).
218
suant to subsection (e)(3)(B) arise directly from findings by
the district court 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 the applicable guideline range]." § 3553(b); see also
nn. 3 and 9,
supra.
Where all the reasons enunciated by the district court to
support departure are found to be invalid, the departure is
per
se unreasonable, as nothing supports it, and the appellate
court must set aside the sentence and remand the case, after
stating specific reasons for its conclusion. 18 U. S. C. §
3742(f)(2). See n. 13,
supra. The reasonableness inquiry is
more involved when only one of several reasons supporting departure
are found to be invalid. Not every circumstance left unconsidered
by the Sentencing Commission warrants departure. Indeed, § 3553(b)
requires a finding that the identified circumstances "should
result" in a sentence outside the applicable guideline range.16 By
law the Guidelines generally provide a variance between the high
and low ends of the range by the greater of six months or 25%. 28
U. S. C. § 994(b)(2). This provides both flexibility within the
range as well as a check on disparity. Whether a departure then
"should result" depends on the factors listed in § 3553(a) for
consideration when imposing the sentence in the first instance.
These same factors control the inquiry into the pro-
16 The legislative history indicates that this language was
intended to emphasize that not every unaccounted-for circumstance
is a basis for departure: "The provision recognizes ... that even
though the judge finds an aggravating or mitigating circumstance in
the case that was not adequately considered in the formulation of
guidelines, the judge might conclude that the circumstance does not
justify a sentence outside the guidelines. Instead, he might
conclude that a sentence at the upper end of the range in the
guidelines for an aggravating circumstance, or at the lower end of
the range for a mitigating circumstance, was more appropriate or
that the circumstance should not affect the sentence at all." S.
Report 79. See also Wilkins,
supra, at 439, and n. 52.
219
priety of the nature and extent of any departure made. In light
of the surviving reasons enunciated by the district court, the
appellate court must determine for itself the "reasonableness" of
the departure under the factors to be considered when imposing
sentenceP Subsection (a)(6)"the need to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty of similar conduct"-takes on added significance in
judging the reasonableness of the extent of departure. Congress
intended appellate review under the new sentencing regime to guide
and control the discretion long reposed in the district courts
towards the ultimate goal of sentencing reform: to promote fairness
and rationality, and to reduce unwarranted disparity, in
sentencing. S. Report 78, 150, 161; see also 28 U. S. C. §
991(b)(1). The provisions of 18 U. S. C. § 3742 establish the
limited practice of appellate review which Congress deemed
"essential to assure that the guidelines are ap-
17The majority obliquely references
Solem v.
Helm,
463 U. S. 277,
290, n. 16 (1983), and its broad statement that an appellate court
should not substitute its judgment for that of the sentencing
court.
Ante, at 204205. Indeed, prior to the Sentencing
Reform Act, appellate courts were generally bound by the simple
principle that sentences imposed by district courts within legal
limits should not be disturbed.
Dorszynski v.
United
States, 418 U. S.
424, 431 (1974);
Gore v.
United States, 357 U. S. 386, 393
(1958). See S. Report 150. But that unquestioned deference evolved
from the near-absolute discretion vested in the district courts
prior to sentencing reform.
Ibid. That discretion is now
checked, however, and appellate courts are presented a statement of
reasons explaining its exercise. In the situation we face here, a
district court has made clear its conclusion that the applicable
guideline range is inadequate. It is not a substitution of judgment
for the appellate court to determine whether the district court's
judgment remains valid. And in any event, this review of
"reasonableness" is precisely what Congress intends the appellate
courts to do. To the extent our decisions previously reigned in the
scope of appellate review, they must be loosened to conform to this
new mandate. Indeed, in its quotation of the
Solem passage,
the majority omits language showing it to be the general rule
only "[a]bsent specific authority" favoring wider review.
463 U. S., at 290, n. 16.
220
plied properly and to provide case law development of the
appropriate reasons for sentencing outside the guidelines." S.
Report 151. Because the district court must state its reasons when
departing, § 3553(c)(2), and because the appellate court must
"state specific reasons" for concluding a departure sentence is
unreasonable, § 3742(f)(2), case law development will proceed
apace, creating a ready benchmark by which to determine whether the
current offender has been dealt a sentence disparate from similar
criminals found guilty of similar crimes.18 In sum, "while the
reasonableness standard will be interpreted and defined by
subsequent case law, the incorporation into this standard of the
section 3553(b) departure test and the section 3553(a) sentencing
factors provides specific content that will permit a broader
judicial inquiry than otherwise would be warranted by a bare
reasonableness standard alone." Wilkins, Sentencing Reform and
Appellate Review, 46 Wash. & Lee L. Rev. 429, 444 (1989)
(footnote omitted).
In this case, the Seventh Circuit concluded that it was error
for the District Court to consider prior arrests not resulting in
conviction because no reliable evidence of the conduct described in
the arrest entries indicated a more severe criminal history than
the one provided by the Guidelines.
910 F.2d
1574, 1580 (1990); see USSG §4A1.3, p. s. The Court of Appeals
correctly ruled, however, that "a sentence nevertheless may be
upheld if there are proper factors that, standing alone, would
justify the departure." 910 F. 2d, at 1580 (citing
United
States v.
Franklin, 902 F.2d
501, 508-509
18 The statements of reasons and development of case law will
also permit the Sentencing Commission to "adequately consider"
those factors leading to departures, ultimately resulting in less
need for departures overall. See S. Report 151; USSG § lA4(b), p.
s. ("By monitoring when courts depart from the guidelines and by
analyzing their stated reasons for doing so and court decisions
with references thereto, the Commission, over time, will be able to
refine the guidelines to specify more precisely when departures
should and should not be permitted").
221
(CA7 1990)). The Court of Appeals noted that the District Court
had also properly relied upon convictions more than 15 years old,
as well as the fact that the petitioner had previously been
convicted of the same crime-felon in possession of a firearm.19 910
F. 2d, at 1580; see USSG § 4A1.3, p. s.;
United States v.
Schmude, 901 F.2d
555, 559 (CA71990). The court found both reasons to support a
finding that the criminal history category did not adequately
reflect the severity of petitioner's criminal past, and that his
propensity for violence was laid bare in this case by his threats
to the lives of the DEA agents and their families. 910 F. 2d, at
1580. In conclusion, the Court of Appeals considered the 3month
departure imposed by the District Court, and stated that "despite
the error noted, the court correctly determined that Mr. Williams'
criminality was not reflected properly in the criminal history
category and that the relevant evidence justified the rather modest
increase in sentence."
Ibid.
This appellate assessment of the validity of the sentence
imposed is sufficient. As previously stated by the Seventh Circuit
in
Franklin, it is not for the court on appeal "to probe the
mind of the sentencing judge and try to determine what portions of
the departure he or she assigned to the different grounds for
departure." 902 F. 2d, at 508. Instead, the appellate court must
assess for itself whether valid reasons stated by the district
court justify the magnitude of departure.
Id., at 509. This
the Seventh Circuit did without error, and I would affirm its
judgment.
Accordingly, I respectfully dissent.
19 The majority suggests this latter factor only played a role
in "selecting a sentence at the high end of the guideline range" to
which the District Court was departing. See
ante, at 197;
App. 54-55. What must be kept in mind, however, is that this was a
departure sentence and, as recognized by the Seventh Circuit here,
the reasons articulated to justify a particular sentence beyond the
otherwise applicable guideline range are those supporting
departure, as in this case,
e. g., where "the
criminal history category is inadequate." 910 F. 2d, at 1580.
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