216
White, J., dissenting
§ 3742(f)(3). Thus, appellate review under § 3742(f)(1) has a much more focused inquiry than that given it by the majority. A sentence is imposed "as a result of" an incorrect application of the Sentencing Guidelines when the error results in a mistaken guideline range. When such an error is identified, remand is required.13 To obtain relief under subsection (f)(1) insofar as it relates to a misapplication of the Guidelines, the appellant must demonstrate that an error has occurred that affects the applicable guideline range.14
13 Contrary to the majority's conclusion, ante, at 202-203, appellate review of departure sentences under § 3742 does not accommodate "harmless-error" review. Subsections (f)(1) and (f)(2) both explicitly direct that, if appellate review discloses an error listed in subsection (e), the court "shall" remand for resentencing. As originally enacted, 18 U. S. C. § 3742 would have authorized an appellate court to "correct the sentence" determined to have been imposed in violation of law or as a result of an incorrect application of the sentencing guidelines. Pub. L. 98-473, § 213(a), 98 Stat. 2012. However, "[a]fter consideration, Congress determined that it was more appropriate for an appellate court to remand a case for further sentencing proceedings in all instances in which the district court decision was reversed, thereby leaving imposition of the final sentence to the district court." Wilkins, 46 Wash. & Lee L. Rev., at 433; see Pub. L. 99-646, § 73, 100 Stat. 3617. Deeming an error "harmless" does not conform with the appellate court's mandate. See United States v. Stephenson, 887 F. 2d 57, 62 (CA5 1989), cert. denied sub nom. Goff v. United States, 493 U. S. 1086 (1990).
14 The unfortunate result of the majority's contrary conclusion, based as it is on an unnatural reading of this statute, is that appellate review becomes a quite complicated exercise, one which will apparently involve shifting "burdens" in the search for the subjective intent of the district court to determine whether "the sentence would have been different but for the district court's error." Ante, at 203. The baldness of this assertion is matched only by the total lack of guidance the majority provides to control this inquiry, apart from its opaque instruction that the appellate courts somehow "must decide whether the district court would have imposed the same sentence had it not relied upon the invalid factor or factors." Ibid. This will likely provide the fodder for later confusion and conflict among the circuits, which I believe we could here avoid by a straightforward reading of this statute.
Page: Index Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 NextLast modified: October 4, 2007