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White, J., dissenting
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)(11) than the maximum established in the guideline range . . . ."
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