210
White, J., dissenting
"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.5 For purposes of disposition by the appellate court, subsection (f) groups the first two and last two types of error together. The determination of error, however, occurs under subsection (e), which plainly identifies four wholly separate and distinguishable types of sentencing error—a nuance overlooked by the majority of the Court. Subsections (e)(2) and (e)(3), when read together, address different possible errors, each exclusive of the other: (e)(2) deals with possible misapplication of the Guidelines by the district court
5 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).
Page: Index Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: October 4, 2007