206
Opinion of the Court
a district court to base a departure on outdated convictions that are "evidence of similar misconduct," see USSG § 4A1.2, comment., n. 8, but the Circuits are divided as to whether, by implication, they prohibit a departure based on nonsimilar outdated convictions. Compare, e. g., United States v. Aymelek, 926 F. 2d 64, 72-73 (CA1 1991) (nonsimilar outdated convictions may be appropriate grounds for departure); United States v. Russell, 905 F. 2d 1439, 1444 (CA10 1990) (same), with United States v. Leake, 908 F. 2d 550, 554 (CA9 1990) (upward departure can never be based on non-similar outdated convictions). In this case, the propriety of the District Court's consideration of Williams' nonsimilar outdated convictions was not clearly presented in the petition for certiorari and was not briefed by either party. Accordingly, we decline to review the Court of Appeals' determination that Williams' outdated convictions were reliable information that his criminal history category understated the extent of his criminal background.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.
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