Williams v. United States
Opinion of the Court
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
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)(l), 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
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 It agreed with the District Court that, under the circumstances of this case, the two outdated convictions were “reliable information” indicating more extensive criminal conduct than was reflected by Williams’ criminal history category.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
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 (CA10 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
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
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 “interpret” and “explain]” 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.
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
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
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
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 two-step 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
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.
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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 16 years old. Id., at 43. The Guidelines explicitly authorize
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.
Our 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.
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.
Dissenting Opinion
with whom Justice Kennedy joins, dissenting.
Title 18 U. S. C. § 3553(b),
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—
*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 § 1A.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.
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) play a direct
Even though policy statements are numbered and grouped in the Guidelines Manual by means identical to actual Guidelines, see USSG § 1B1.6, their purpose is limited to interpreting and explaining how to apply the Guidelines, and— significantly — “may provide guidance in assessing the reasonableness of any departure from the guidelines,” § 1B1.7. 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,*213 p. 167 (1983) (emphasis added; footnote omitted) (hereinafter S. Report).9
The legislative history to 18 U. S. C. § 3567
“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
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.
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.”
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.
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
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.
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.”
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 . ...”
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—
“(l)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.”
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 .. . .”
For its part, § 3742(e) simply mirrors the four separate grounds for appeal available to a defendant, § 3742(a), and to the Government, § 3742(b).
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.).
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)(1).
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).
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 play a 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).
“Review of a sentence. The review of a sentence imposed pursuant to section 3551 is governed by the provisions of section 3742.” §3567.
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 (CA10 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 (CA10 1990); United States v. Diaz-Villafane, 874 F. 2d 43, 49 (CA1), cert. denied, 493 U. S. 862 (1989).
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.
1 point the majority to the language of one of the policy statements it cites: USSG § lA.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).
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)(1) 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).
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.
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).
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.
The 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 204-205. 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 cheeked, 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 “[ajbsent specific authority” favoring wider review. 463 U. S., at 290, n. 16.
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 161; 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”).
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. 64-66. 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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