Cite as: 503 U. S. 193 (1992)
White, J., dissenting
"(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:
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