214
White, J., dissenting
sentencing guidelines" within the meaning of § 3742(e)(2) took place in this case.11 As I have explained, however, this phrase refers only to the process by which the district court determines the applicable range of sentences when applying the "guidelines," as defined by 28 U. S. C. § 998(c). The majority does not—and indeed can not—identify or claim that any error in determining the guideline range under the Guidelines is involved in this case. Instead, the majority does no more than declare that invalidly finding an aggravat-11 This confusion apparently stems from both parties' citation of United States v. Hernandez-Vasquez, 884 F. 2d 1314 (CA9 1989) (per curiam), and United States v. Zamarripa, 905 F. 2d 337 (CA10 1990), in support of the proposition that, when one or more of the stated grounds for departure is invalid, the case must be remanded for resentencing. Be that as it may, neither case has concluded that the sentence should be treated as "an incorrect application of the sentencing guidelines," within the meaning of § 3742(f)(1), when reviewing district court departures that rely on both proper and improper grounds. Not only do neither of these cases so hold, but neither case in any way purports to explain, much less cite, § 3742. Instead, both cases simply rely on United States v. Nuno-Para, 877 F. 2d 1409, 1412-1414 (CA9 1989), for the above proposition. Also in reliance on Nuno-Para, Zamarripa added that the appellate court "cannot determine whether the same departure would have resulted absent the improper factor." 905 F. 2d, at 342. But Nuno-Para itself fails to cite, discuss, or explain § 3742. The Ninth Circuit there simply concluded that "we must hold that the district court's departure was unreasonable because it improperly relied on factors already considered by the guidelines." 877 F. 2d, at 1414 (emphasis added). While such a construction of the review for "reasonableness" is too limited, see infra, at 217-220, any such consideration on appeal is clearly taken under § 3742(f)(2). Moreover, a close study of the appellate review outlined by the Tenth Circuit in Zamarripa reveals that it in fact generally conforms to the approach outlined by my opinion here. See 905 F. 2d, at 339-340; see also United States v. White, 893 F. 2d 276, 277-278 (CA10 1990); United States v. Diaz-Villafane, 874 F. 2d 43, 49 (CA1), cert. denied, 493 U. S. 862 (1989).
Consequently, no case has been brought to our attention that has considered reliance upon both proper and improper grounds for departure to be "an incorrect application of the sentencing guidelines" within the meaning of § 3742(f)(1). That the parties attempt to concede this point should not prevent our own scrupulous reading of these statutes, lest we disturb Congress' intent, which I find to be clearly expressed.
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