Cite as: 518 U. S. 81 (1996)
Opinion of the Court
under any circumstances would be to transgress the policy-making authority vested in the Commission.
An example is helpful. In United States v. Lara, 905 F. 2d 599 (1990), the Court of Appeals for the Second Circuit upheld a District Court's downward departure based on the defendant's "potential for victimization" in prison due to his diminutive size, immature appearance, and bisexual orientation. Id., at 601. In what appeared to be a response to Lara, the Commission amended 1989 USSG § 5H1.4, to make [p]hysicial . . . appearance, including physique," a discouraged factor. 1995 USSG App. C, Amdt. 386 (effective Nov. 1, 1991). The Commission did not see fit, however, to prohibit consideration of physical appearance in all cases, nor did it address the broader category of susceptibility to abuse in prison. By urging us to hold susceptibility to abuse in prison to be an impermissible factor in all cases, the Government would have us reject the Commission's considered judgment in favor of our own.
The Government acknowledges as much but says its position is required by 18 U. S. C. § 3553(a)(2). The statute provides:
"The court, in determining the particular sentence to be imposed, shall consider—
. . . . .
"(2) the need for the sentence imposed— "(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; "(B) to afford adequate deterrence to criminal conduct; "(C) to protect the public from further crimes of the defendant; and "(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner."
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