218
White, J., dissenting
suant to subsection (e)(3)(B) arise directly from findings by the district court that "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described [in the applicable guideline range]." § 3553(b); see also nn. 3 and 9, supra.
Where all the reasons enunciated by the district court to support departure are found to be invalid, the departure is per se unreasonable, as nothing supports it, and the appellate court must set aside the sentence and remand the case, after stating specific reasons for its conclusion. 18 U. S. C. § 3742(f)(2). See n. 13, supra. The reasonableness inquiry is more involved when only one of several reasons supporting departure are found to be invalid. Not every circumstance left unconsidered by the Sentencing Commission warrants departure. Indeed, § 3553(b) requires a finding that the identified circumstances "should result" in a sentence outside the applicable guideline range.16 By law the Guidelines generally provide a variance between the high and low ends of the range by the greater of six months or 25%. 28 U. S. C. § 994(b)(2). This provides both flexibility within the range as well as a check on disparity. Whether a departure then "should result" depends on the factors listed in § 3553(a) for consideration when imposing the sentence in the first instance. These same factors control the inquiry into the pro-16 The legislative history indicates that this language was intended to emphasize that not every unaccounted-for circumstance is a basis for departure: "The provision recognizes . . . that even though the judge finds an aggravating or mitigating circumstance in the case that was not adequately considered in the formulation of guidelines, the judge might conclude that the circumstance does not justify a sentence outside the guidelines. Instead, he might conclude that a sentence at the upper end of the range in the guidelines for an aggravating circumstance, or at the lower end of the range for a mitigating circumstance, was more appropriate or that the circumstance should not affect the sentence at all." S. Report 79. See also Wilkins, supra, at 439, and n. 52.
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