Cite as: 503 U. S. 193 (1992)
White, J., dissenting
when determining and sentencing within the applicable guideline range; (e)(3) deals with possible errors by the district court when departing from the applicable guideline range.6 Indeed, the majority—as well as both parties in their briefs on the merits and in response to our request for supplemental briefing—fails to define what the phrase "incorrect application of the sentencing guidelines" means. Absent such understanding, it is impossible to apply these appellate review provisions with any hope of meeting Congress' intent.
We deal here with a faulty interpretation of a policy statement, USSG § 4A1.3, p. s., by the District Court when deciding to depart from the otherwise applicable guideline range. Policy statements, however, even though contained in the Guidelines Manual, are not "guidelines" as referred to in § 3742(e)(2) and defined in the Act, 28 U. S. C. § 998(c), as "the guidelines promulgated by the Commission pursuant to section 994(a)." Congress has clearly distinguished between Guidelines and policy statements. The former are "for use of a sentencing court in determining the sentence to be imposed in a criminal case." § 994(a)(1). The latter are simply instructions "regarding application of the guidelines or any other aspect of sentencing or sentence implementation" furthering the purposes of the Act. § 994(a)(2). Only the Guidelines promulgated pursuant to § 994(a)(1) play a direct
6 Commentary by the Chairman of the United States Sentencing Commission, Judge William Wilkins, Jr., of the Fourth Circuit, confirms this approach. See Wilkins, Sentencing Reform and Appellate Review, 46 Wash. & Lee L. Rev. 429, 437-444 (1989). His discussion of appellate review of guideline departures focused on the recognition that "the language of subsections 3742(e)(3) and (f)(2) . . . pertain[s] to consideration and disposition of a departure sentence appeal." Id., at 441. Indeed, the plain language of the controlling statute so clearly dictated this approach that his discussion nowhere even recognizes the possibility that subsections (e)(2) and (f)(1) are implicated on the appellate review of a departure sentence. This view has carried the day in the Fourth Circuit. See United States v. Summers, 893 F. 2d 63, 64-67 (1990) (opinion of Wilkins, J.).
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