NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

                 Syllabus

WILLIAMS v. UNITED STATES
certiorari to the united states court of appeals for
the seventh circuit
No. 90-6297.   Argued November 6, 1991-Decided March 9, 1992

Under the Sentencing Reform Act of 1984, the United States Sentenc-
 ing Commission has promulgated Guidelines establishing sentencing
 ranges for different categories of federal offenses and defendants.
 The Act allows a district court to depart from a guideline range
 under certain circumstances, 18 U.S.C. 3553(b), and provides for
 limited appellate review of sentences, requiring a remand for
 resentencing if a sentence (1) was imposed in violation of law or ``as
 a result of an incorrect application'' of the Guidelines, 3742(f)(1), or
 (2) is an unreasonable departure from the applicable guideline range,
 3742(f)(2).  Petitioner Williams was convicted in the Federal District
 Court of possession of a firearm by a convicted felon.  The applicable
 sentencing range for someone in his criminal history category and at
 his offense level is 18 to 24 months.  However, the District Court
 departed upward from that range and sentenced him to 27 months'
 imprisonment, determining that his criminal history category was
 inadequate because it did not include two convictions that were too
 old to be counted in the Guidelines' criminal history calculation and
 because it did not reflect several prior arrests.  The Court of Appeals
 agreed that the convictions were reliable information indicating more
 extensive criminal conduct than was reflected by Williams' criminal
 history category, but it rejected the District Court's reliance upon the
 prior arrests, finding that the Guidelines prohibit a court from basing
 a departure on a prior arrest record alone and that the District Court
 had not adequately explained the factual basis for its use of those
 arrests as a ground for departure.  Although the District Court had
 used both proper and improper factors to justify departure, the Court
 of Appeals affirmed the sentence on the ground that it was reason-
 able in light of the proper factors standing alone.
Held:
   1.A reviewing court may, in appropriate circumstances, affirm a
 sentence in which a district court's departure from a guideline range
 is based on both valid and invalid factors.  Pp.3-8.
    (a)Construing the plain language of the Guidelines and the Act,
 it is an incorrect application of the Guidelines for a district court to
 depart from the applicable sentencing range based on a factor that
 the Commission has already fully considered in establishing a guide-
 line range or, as in this case, on a factor that the Commission has
 expressly rejected as a ground for departure.  An ``incorrect applica-
 tion of the sentencing guidelines'' occurs when the departure ground
 is prohibited either by the Guidelines or by general policy statements
 regarding the Guidelines' application, which the Commission is also
 authorized to promulgate, 28 U.S.C. 994(a)(2).  A policy statement
 is an authoritative guide to the meaning of the applicable Guideline,
 and an error in the statement's interpretation could lead to an
 incorrect determination that departure was appropriate.  Pp.5-7.
    (b)When a district court relies upon an improper ground in
 departing from a guideline range, a reviewing court may not affirm
 a sentence based solely on its independent assessment that the
 departure is reasonable under 3742(f)(2).  In order to give full effect
 to both 3742(f)(1) and 3742(f)(2), the reviewing court must conduct
 separate inquiries under each provision to determine whether a
 remand is required.  It may not focus on one provision to the exclu-
 sion of the other.  Pp.7-8.
    (c)Williams' argument that a remand is automatically required
 under 3742(f)(1) in order to rectify any ``incorrect application'' of the
 Guidelines is rejected.  A remand is required only if a sentence is
 ``imposed as a result of an incorrect application'' of the Guidelines,
 i. e., if the sentence would have been different but for the district
 court's error.  The party challenging the sentence bears the initial
 burden of showing that the district court relied upon an invalid factor
 at sentencing, but not the burden of proving that the invalid factor
 was determinative in the sentencing decision.  Rather, once the court
 of appeals finds that the district court misapplied the Guidelines, a
 remand is appropriate unless the reviewing court determines that the
 error was harmless.  Pp.8-9.
    (d)If the court of appeals determines that a remand is not
 required under 3742(f)(1), it may affirm the sentence as long as it
 is also satisfied that the departure is reasonable under 3742(f)(2).
 The reasonableness determination looks to the amount and extent of
 the departure in light of the grounds for departing.  In assessing
 reasonableness, a court must examine the factors to be considered in
 imposing a sentence under the Guidelines and the district court's
 stated reasons for the sentence's imposition.  3742(e).  A sentence
 can be ``reasonable'' even if some of the district court's reasons
 justifying departure are invalid, provided the remaining reasons are
 sufficient to justify the departure's magnitude.  P.9.
    (e)The limited appellate review of sentencing decisions does not
 alter the traditional deference a court of appeals owes to a district
 court's exercise of its sentencing discretion, and the selection of the
 appropriate sentence from within the guideline range and the deci-
 sion to depart from that range are left solely to the sentencing court.
 Thus, when only some of the district court's reasons for departure are
 invalid, an appellate court may not affirm a sentence on the ground
 that the district court could have based its departure on the remain-
 ing factors, since the district court, once apprised of the errors in its
 interpretation of the Guidelines, may have chosen a different sen-
 tence.  Pp.9-11.
   2.This Court declines to review the Court of Appeals' determina-
 tion regarding the reliability of Williams' outdated convictions,
 because the propriety of the District Court's consideration of non-
 similar outdated convictions was not clearly presented in the petition
 for certiorari and was not briefed by either party.  Pp.11-12.
   3.The case is remanded for a determination whether the sentence
 was imposed ``as a result of'' the District Court's erroneous consider-
 ation of Williams' prior arrests, since it cannot be ascertained wheth-
 er the Court of Appeals concluded that the District Court would have
 imposed the same sentence even without relying upon Williams' prior
 arrest record or whether it affirmed simply on the basis that the
 sentence was reasonable under 3742(f)(2).  P.12.
910 F.2d 1574, vacated and remanded.

 O'Connor, J., delivered the opinion of the Court, in which Rehn-
quist, C. J., and Blackmun, Stevens, Scalia, Souter, and Thomas,
JJ., joined.  White, J., filed a dissenting opinion, in which Kennedy,
J., joined.


NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
--------
No. 90-6297
--------
JOSEPH WILLIAMS, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of
appfor the seventh circuit
[March 9, 1992]

  Justice O'Connor delivered the opinion of the Court.
  The Sentencing Reform Act of 1984, as amended, 18
U. S. C. 3551 et seq., 28 U. S. C. 991-998 (Act), created
the United States Sentencing Commission and empowered
it to promulgate guidelines establishing sentencing ranges
for different categories of federal offenses and defendants.
The Act permits a district court to depart from the pre-
sumptive sentencing range prescribed by the Sentencing
Guidelines only in certain circumstances.  18 U. S. C.
3553(b).  The Act also provides for limited appellate
review of sentences in order to ensure the proper applica-
tion of the Guidelines.  3742.  In this case, we consider the
scope of appellate review, under the Act, of a sentence in
which a district court has departed from the guideline
sentencing range.
                     I
  Petitioner Joseph Williams, a previously convicted felon,
was the subject of an investigation conducted by the Bureau
of Alcohol, Tobacco and Firearms in 1988 and 1989.  He
was indicted and convicted after a jury trial in the United
States District Court for the Western District of Wisconsin
for possession of a firearm while a convicted felon in
violation of 18 U. S. C. 922(g)(1).
  The presentence report assigned Williams a criminal
history category of V.  App. 48.  Combined with an offense
level of 9, the applicable sentencing range under the
Guidelines was 18 to 24 months.  Ibid.  The District Court
departed upward from this range pursuant to 4A1.3 of the
Guidelines Manual, which allows a district court to increase
a criminal history classification if ``reliable information''
indicates that the criminal history category does not
adequately reflect the seriousness of the defendant's
criminal background or propensity for future criminal
conduct.  United States Sentencing Commission, Guidelines
Manual 4A1.3, p. s. (Nov. 1991).  The District Court
determined that Williams' criminal history category was
inadequate because it did not include two convictions that
were too old to be counted in the Guidelines' criminal
history calculation, see USSG 4A1.2(e)(1) (Nov. 1991), and
because it did not reflect several prior arrests.  App. 53-54.
Citing these two factors, the court looked to the next
highest criminal history category, for which the guideline
range was 21 to 27 months.  Id., at 53-54.  The court then
sentenced Williams to 27 months' imprisonment and ex-
plained that it was selecting a sentence at the high end of
the guideline range because Williams had previously been
convicted for the same offense and because he had threat-
ened an undercover agent in this case.  Id. at 55-56.
  The United States Court of Appeals for the Seventh
Circuit upheld the conviction and the sentence.  910 F. 2d
1574 (1990).  It agreed with the District Court that, under
the circumstances of this case, the two outdated convictions
were ``reliable information'' indicating more extensive
criminal conduct than was reflected by Williams' criminal
history category.  Id., at 1579.  It rejected, however, the
District Court's reliance upon Williams' prior arrests not
resulting in prosecution.  Although the Guidelines allow a
court to consider ``prior similar adult criminal conduct not
resulting in a criminal conviction'' in determining whether
a departure is warranted, they prohibit a court from basing
a departure on a prior arrest record alone.  USSG 4A1.3
p. s.  The Court of Appeals asserted that ``the determination
that the arrests indicated similar criminal conduct must be
based on facts apart from the arrest record itself,'' 910
F. 2d, at 1580, and held that the District Court had not
adequately explained the factual basis for its use of Wil-
liams' prior arrests as a ground for departure.  Ibid.
  Although it invalidated one of the two grounds mentioned
by the District Court in its decision to depart, the Court of
Appeals nevertheless affirmed Williams' sentence.  It relied
upon the Seventh Circuit precedent of United States v.
Franklin, 902 F. 2d 501 (CA7), cert. denied, sub nom. Mann
v. United States, 498 U. S. ___ (1990), which held that when
a sentencing court uses both proper and improper factors to
justify a departure, the sentence can be affirmed if it is
reasonable in light of the proper factors standing alone.  Id.,
at 508-509.  Applying Franklin, the Court of Appeals
concluded that, despite the District Court's error in consid-
ering Williams' prior arrest record, the court had ``correctly
determined that Mr. Williams' criminality was not reflected
properly in the criminal history category and that the
relevant evidence justified the rather modest increase in
sentence.''  910 F. 2d, at 1580.
  We granted certiorari, 499 U. S. ___ (1991), to resolve a
conflict among the Circuits on whether a reviewing court
may affirm a sentence in which a district court's departure
from the guideline range is based on both valid and invalid
factors.  Compare United States v. Zamarippa, 905 F. 2d
337, 342 (CA10 1990) (when one or more of the stated
grounds for departure is invalid, the case must be remand-
ed for resentencing); United States v. Hernandez-Vasquez,
884 F. 2d 1314, 1315-1316 (CA9 1989) (same), with United
States v. Franklin, 902 F. 2d 501, 508-509 (CA7) (when one
or more of the stated grounds for departure is invalid,
appellate court may affirm if sentence is still reasonable in
light of remaining factors), cert. denied, sub nom. Mann v.
United States, 498 U. S. ___ (1990); United States v. Rodri-
guez, 882 F. 2d 1059, 1066-1068 (CA6 1989) (same), cert.
denied, 493 U. S. 1084 (1990); United States v. Hummer,
916 F. 2d 186, 195, n. 8 (CA4 1990) (same), cert. denied,
499 U. S. ___ (1991).
                    II
  The Act provides that a district court may depart from
the sentencing range set by the Guidelines only when it
finds 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.''  18 U. S. C. 3553(b).  A
defendant may file an appeal if a sentence was imposed in
violation of law or as a result of an incorrect application of
the Guidelines, or if the district court departed upward
from the guideline range.  3742(a).  Similarly, the Govern-
ment may file an appeal if a sentence was imposed in
violation of law or as a result of an incorrect application of
the Guidelines, or if the district court departed downward
from the guideline range.  3742(b).
  For both types of appeal, 3742(f) delineates the follow-
ing narrow scope of review:
   ``If the court of appeals determines that the sentence-
   ``(1) was imposed in violation of law or imposed as a
  result of an incorrect application of the sentencing
  guidelines, the court shall remand the case for further
  sentencing proceedings with such instructions as the
  court considers appropriate;
   ``(2) is outside the applicable guideline range and is
  unreasonable or was imposed for an offense for which
  there is no applicable sentencing guideline and is plainly
  unreasonable, it shall state specific reasons for its
  conclusions and-
     ``(A) if it determines that the sentence is too high and
     the appeal has been filed [by the defendant], it shall
     set aside the sentence and remand the case for
     further sentencing proceedings with such instructions
     as the court considers appropriate;
     ``(B) if it determines that the sentence is too low and
     the appeal has been filed [by the Government], it
     shall set aside the sentence and remand the case for
     further sentencing proceedings with such instructions
     as the court considers appropriate;
   ``(3) is not described in paragraph (1) or (2), it shall
  affirm the sentence.''
                     A
  In the case before us, Williams urges that the District
Court's use of his arrest record as a ground for departure
was a misapplication of the Guidelines and that the
``incorrect application'' standard of 3742(f)(1) means that
once a departure ground is invalidated, a remand is always
in order.  The Government does not dispute that a district
court's reliance upon an invalid factor in departing from the
guideline sentencing range is appropriately characterized as
an ``incorrect application'' of the Guidelines, but contends
that a remand is only required when the error was determi-
native in the decision to depart.
  We agree with both parties that a sentencing court's use
of an invalid departure ground is an incorrect application of
the Guidelines.  The Guidelines echo the Act's instruction
that a district court may depart from the applicable
guideline range only when it finds an aggravating or
mitigating circumstance ``not adequately taken into con-
sideration by the Sentencing Commission'' in formulating
the Guidelines.  USSG 1A4(b) p. s., 5K2.0 p. s. (both
quoting 18 U. S. C. 3553(b)).  Construing the plain
language of the Guidelines Manual and the governing
statute, we conclude that it is an incorrect application of
the Guidelines for a district court to depart from the
applicable sentencing range based on a factor that the
Commission has already fully considered in establishing the
guideline range or, as in this case, on a factor that the
Commission has expressly rejected as an appropriate
ground for departure.
  Congress has defined ``guidelines'' as ``the guidelines
promulgated by the commission pursuant to 994(a).''  28
U. S. C. 998(c).  Section 994(a) grants the Commission the
authority to promulgate both ``guidelines,'' 28 U. S. C.
994(a)(1), and ``general policy statements regarding
application of the guidelines,'' 994(a)(2).  The dissent
draws a distinction between the ``actual'' guidelines and the
policy statements that ``interpret[]'' and ``explain[]'' them; in
the dissent's view, only the former can be incorrectly
applied within the meaning of 3742(f)(1).  Post, at 5-6.
But to say that guidelines are distinct from policy state-
ments is not to say that their meaning is unaffected by
policy statements.  Where, as here, a policy statement
prohibits a district court from taking a specified action, the
statement is an authoritative guide to the meaning of the
applicable guideline.  An error in interpreting such a policy
statement could lead to an incorrect determination that a
departure was appropriate.  In that event, the resulting
sentence would be one that was ``imposed as a result of an
incorrect application of the sentencing guidelines'' within
the meaning of 3742(f)(1).  Similarly, an erroneous
calculation under the Sentencing Table, from which all
Guidelines sentencing ranges are derived, could properly be
reviewed as an ``incorrect application of the sentencing
guidelines'' under 3742(f)(1) even though the Table itself
is not officially designated as a ``guideline.''  See USSG, ch.
5, part A.
  Because use of a departure ground prohibited by a policy
statement can be an ``incorrect application'' of the Guide-
lines under 3742(f)(1), we also agree with both Williams
and the Government that, when a district court relies upon
an improper ground in departing from the guideline range,
a reviewing court may not affirm a sentence based solely on
its independent assessment that the departure is reason-
able under 3742(f)(2).   Section 3742(f) specifies two
circumstances in which a court of appeals must remand for
resentencing:  if the sentence was imposed as a result of an
incorrect application of the Guidelines or if the sentence is
an unreasonable departure from the applicable guideline
range.  The statute does not allow a court to focus on one
remand provision to the exclusion of the other.
  We do not believe that the dissent's contrary conclusion
is supported by declarations from Congress and the Sen-
tencing Commission which state that departure sentences
are reviewable under 3742(f)(2).  Post, at 4, 7.  We are
unable to find any indication in those statements that
departures from the guidelines are to be reviewed exclusive-
ly under 3742(f)(2).  Thus, we believe that, while depar-
ture decisions are properly reviewed under 3742(f)(2), they
are also properly reviewed under 3742(f)(1) when they are
the result of an incorrect application of the guidelines
(considered in light of the relevant policy statements) that
govern departure decisions.  In order to give full effect to
both provisions, therefore, the reviewing court is obliged to
conduct two separate inquiries.  First, was the sentence
imposed either in violation of law or as a result of an
incorrect application of the Guidelines?  If so, a remand is
required under 3742(f)(1).  If the court concludes that the
departure is not the result of an error in interpreting the
Guidelines, it should proceed to the second step:  is the
resulting sentence an unreasonably high or low departure
from the relevant guideline range?  If so, a remand is
required under 3742(f)(2).
  Williams argues further that whenever a court of appeals
finds that a district court considered an erroneous factor in
sentencing, a remand is automatically required under
3742(f)(1) in order to rectify an ``incorrect application'' of
the Guidelines.  We disagree.  Section 3742(f)(1) does not
call for a remand every time a sentencing court might
misapply a provision of the Guidelines; rather, remand is
required only if the sentence was ``imposed as a result of an
incorrect application'' of the Guidelines.  When a district
court has not intended to depart from the Guidelines, a
sentence is imposed ``as a result of'' an incorrect application
of the Guidelines when the error results in the district court
selecting a sentence from the wrong guideline range.  When
a district court has intended to depart from the guideline
range, a sentence is imposed ``as a result of'' a misapplica-
tion of the Guidelines if the sentence would have been
different but for the district court's error.  Accordingly, in
determining whether a remand is required under 3742(f)-
(1), a court of appeals must decide whether the district
court would have imposed the same sentence had it not [xxx]
d upon the invalid factor or factors.
  We conclude that the party challenging the sentence on
appeal, although it bears the initial burden of showing that
the district court relied upon an invalid factor at sentenc-
ing, does not have the additional burden of proving that the
invalid factor was determinative in the sentencing decision.
Rather, once the court of appeals has decided that the
district court misapplied the Guidelines, a remand is
appropriate unless the reviewing court concludes, on the
record as a whole, that the error was harmless, i.e., that the
error did not affect the district court's selection of the
sentence imposed.  See Fed. Rule Crim. Proc. 52(a).
                     B
  If the party defending the sentence persuades the court
of appeals that the district court would have imposed the
same sentence absent the erroneous factor, then a remand
is not required under 3742(f)(1), and the court of appeals
may affirm the sentence as long as it is also satisfied that
the departure is reasonable under 3742(f)(2).  The reason-
ableness determination looks to the amount and extent of
the departure in light of the grounds for departing.  In
assessing reasonableness under 3742(f)(2), the Act directs
a court of appeals to examine the factors to be considered in
imposing a sentence under the Guidelines, as well as the
district court's stated reasons for the imposition of the
particular sentence.  3742(e).  A sentence thus can be
``reasonable'' even if some of the reasons given by the
district court to justify the departure from the presumptive
guideline range are invalid, provided that the remaining
reasons are sufficient to justify the magnitude of the depar-
ture.
                     C
  The dissent interprets the ``reasonableness'' standard of
3742(f)(2) to be the sole provision governing appellate
review of departure decisions.  The dissent also posits a
two-step test of reasonableness:  the appellate court must
determine the reasonableness of the district court's decision
to depart based on the court's stated reasons for departure,
post at 12-13, and the appellate court must determine the
reasonableness of the amount or extent of departure, post
at 13-14.  This is similar to our two-step inquiry, see supra
at 7, for determining when a remand is required.  The
dissent thus agrees that ``[w]here all the reasons enunciated
by the district court to support departure are found to be
invalid,'' the appellate court ``must set aside the sentence
and remand the case,'' post at 12, although it would find
such a remand necessary because ``the departure is per se
unreasonable,'' ibid., and not because it was imposed ``as a
result of'' an incorrect application of the Guidelines.  When
some but not all of the district court's reasons for departure
are invalid, however, the dissent's position requires the
appellate court to consider whether the district court could
have based its departure on the remaining factors, post at
13, and not whether it would still have chosen so to act,
supra at 8.
  In practical effect, therefore, the divergence of the
dissent's interpretation of the statute from our own is in the
degree of an appellate court's authority to affirm a sentence
when the district court, once made aware of the errors in its
interpretation of the Guidelines, may have chosen a
different sentence.  Although the Act established a limited
appellate review of sentencing decisions, it did not alter a
court of appeals' traditional deference to a district court's
exercise of its sentencing discretion.  The selection of the
appropriate sentence from within the guideline range, as
well as the decision to depart from the range in certain
circumstances, are decisions that are left solely to the
sentencing court.  USSG 5K2.0 p. s.  The development of
the guideline sentencing regime has not changed our view
that, except to the extent specifically directed by statute, ``it
is not the role of an appellate court to substitute its
judgment for that of the sentencing court as to the appro-
priateness of a particular sentence.''  Solem v. Helm, 463
U. S. 277, 290, n. 16 (1983).
  Significantly, Congress amended the Act in 1986 to delete
certain provisions that authorized an appellate court to
correct a sentence determined to have been imposed as a
result of an incorrect application of the Guidelines.  See
Criminal Law and Procedure Technical Amendments Act of
1986, Pub. L. No. 99-646, 73, 100 Stat. 3592 (1986).  That
action confirms our belief that it is the prerogative of the
district court, not the court of appeals, to determine, in the
first instance, the sentence that should be imposed in light
of certain factors properly considered under the Guidelines.
                    III
                     A
  At oral argument in this Court, petitioner's counsel
contended that both of the District Court's stated grounds
for departure were invalid and therefore that Williams'
sentence must have resulted from an incorrect application
of the Guidelines.  Tr. of Oral Arg. 42-43.  Counsel argued
that not only was it improper for the District Court to rely
upon Williams' prior arrest record, but also that the
Guidelines prevented the court from considering convictions
more than 15 years old.  Id., at 43.  The Guidelines explicit-
ly authorize a district court to base a departure on outdated
convictions that are ``evidence of similar misconduct,'' see
USSG 4A1.2, comment., n. 8, but the Circuits are divided
as to whether, by implication, they prohibit a departure
based on nonsimilar outdated convictions.  Compare, e.g.,
United States v. Aymelek, 926 F. 2d 64, 72-73 (CA1 1991)
(nonsimilar outdated convictions may be appropriate
grounds for departure); United States v. Russell, 905 F. 2d
1439, 1444 (CA10 1990) (same) with United States v. Leake,
908 F. 2d 550, 554 (CA9 1990) (upward departure can never
be based on nonsimilar outdated convictions).  In this case,
the propriety of the District Court's consideration of
Williams' nonsimilar outdated convictions was not clearly
presented in the petition for certiorari and was not briefed
by either party.  Accordingly, we decline to review the Court
of Appeals' determination that Williams' outdated convic-
tions were reliable information that his criminal history
category understated the extent of his criminal background.
See 910 F. 2d, at 1578-1579.
                     B
  The Court of Appeals was obliged to review, under both
remand provisions of 3742(f), a departure from the
guideline range in which it found one of the two stated
grounds for departure to be valid and the other to be
invalid.  We are unable to ascertain from its opinion
whether the Court of Appeals concluded that the District
Court would have imposed the same sentence even without
relying upon Williams' prior arrest record, see 3742(f)(1),
or whether it affirmed simply on the basis that the sentence
was reasonable under 3742(f)(2).  We therefore vacate the
judgment below affirming Williams' sentence, and remand
for a determination whether the sentence was imposed ``as
a result of'' the District Court's erroneous consideration of
his prior arrests not resulting in prosecution.

                         It is so ordered.
-------------------------------


SUPREME COURT OF THE UNITED STATES
--------
No. 90-6297
--------
JOSEPH WILLIAMS, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of
appeals for the seventh circuit
[March 9, 1992]

  Justice White, with whom Justice Kennedy joins,
dissenting.
  Title 18 U. S. C. 3553(b), of the Sentencing Reform Act
of 1984 (Act), as amended, 18 U. S. C. 3551 et seq. and 28
U. S. C. 991-998, directs that in sentencing a convicted
defendant, the district court shall impose a sentence of the
kind and within the range referred to in 3553(a)(4) and
established under the guidelines issued by the Sentencing
Commission, ``unless the court finds 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.''
If the court departs from the sentence that would be
imposed within the range established pursuant to
3553(a)(4), it must state the specific reasons for such
departure.  3553(c).  If there is an upward departure the
defendant may appeal.  3742(a)(3).
  In the case before us, the District Court determined that
the applicable guideline range inadequately depicted the
defendant's criminality for three specific reasons, and that
there should accordingly be an upward departure.  The
defendant, petitioner here, appealed.  The Court of Appeals
found one of the reasons given by the trial court to be
invalid, but on the basis of the other two reasons, which
were acceptable, it affirmed the sentence imposed.  Petition-
er claims that the Court of Appeals should have remanded
to the District Court for resentencing.
  Whether remand was required turns on the meaning and
application of 3742(f), which provides in full:
   ``(f) Decision and disposition.-If the court of appeals
   determines that the sentence-
     ``(1) was imposed in violation of law or imposed as a
     result of an incorrect application of the sentencing
     guidelines, the court shall remand the case for
     further sentencing proceedings with such instructions
     as the court considers appropriate;
     ``(2) is outside the applicable guideline range and is
     unreasonable or was imposed for an offense for which
     there is no applicable sentencing guideline and is
     plainly unreasonable, it shall state specific reasons
     for its conclusions and--
      ``(A) if it determines that the sentence is too high
      and the appeal has been filed under subsection (a),
      it shall set aside the sentence and remand the case
      for further sentencing proceedings with such
      instructions as the court considers appropriate;
      ``(B) if it determines that the sentence is too low
      and the appeal has been filed under subsection (b),
      it shall set aside the sentence and remand the case
      for further sentencing proceedings with such
      instructions as the court considers appropriate;
     ``(3) is not described in paragraph (1) or (2), it shall
     affirm the sentence.''
In arriving at its conclusion that there must be a remand
in this case, the majority of the Justices in this Court have
concluded that there was both ``an incorrect application of
the sentencing guidelines,'' 3742(f)(1), and a sentence
``outside the applicable guideline range,'' 3742(f)(2).  Also
being of the view that the Court of Appeals did not fully
deal with the former subsections, the majority orders a
remand to the Court of Appeals.
  It is my view, however, that where there is a departure
from the applicable guideline range, any appeal is governed
by 3742(f)(2) alone, and not also by 3742(f)(1).  This
appears to be the view of the United States Sentencing
Commission:
   ``Pursuant to the Act, the sentencing court must select
   a sentence from within the guideline range.  If, howev-
   er, a particular case presents atypical features, the Act
   allows the court to depart from the guidelines and sen-
   tence 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.  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 togeth-
er, address different possible errors, each exclusive of the
other: (e)(2) deals with possible misapplication of the
guidelines by the district court 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.  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 applica-
tion 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 distin-
guished 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 role in the calculation of points
pertaining to the offense level and criminal history category
reduced into the Sentencing Table, USSG 5A, from which
the applicable guideline is drawn.  It follows that
``application of the sentencing guidelines'' refers only to
those guidelines relevant to the construction of the applica-
ble guideline range.
  Even though policy statements are numbered and
grouped in the Guidelines Manual by means identical to
actual guidelines, see USSG 1B1.6, their purpose is
limited to interpreting and explaining how to apply the
guidelines, and-significantly-``may provide guidance in
assessing the reasonableness of any departure from the
guidelines.''  1B1.7.  While the district court must consider
policy statements when determining the appropriate
sentence, see 18 U. S. C. 3553(a)(5), the Act's legislative
history could not have been more explicit that an error in
their interpretation is not, in itself, subject to appellate
review:
     ``It should be noted that a sentence that is inconsis-
   tent with the sentencing guidelines is subject to appel-
   late review, while one that is consistent with guidelines
   but inconsistent with the policy statements is not.  This
   is not intended to undermine the value of the policy
   statements.  It is, instead, a recognition that the policy
   statements may be more general in nature than the
   guidelines and thus more difficult to use in determining
   the right to appellate review.''  S. Rep. No. 98-225,
   p. 167 (1983) (emphasis added; footnote omitted)
   (hereinafter S. Report).
The legislative history to 18 U. S. C. 3557 is equally
clear in this regard:
   ``The provisions for appellate judicial review of sen-
   tences in section 3742 are designed to reduce material-
   ly any remaining unwarranted disparities by giving the
   right to appeal a sentence outside the guidelines and
   by providing a mechanism to assure that sentences
   inside the guidelines are based on correct application of
   the guidelines.''  S. Report 86 (emphasis added).
  The majority of the Justices asserts that, because one of
three reasons for the upward departure imposed here by
the District Court was invalid, an ``incorrect application of
the sentencing guidelines'' within the meaning of
3742(e)(2) took place in this case.  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 aggravating circumstance not adequate-
ly taken into account by the Sentencing Commission is an
```incorrect application' of the Guidelines,'' while referring
only to two policy statements contained in the Guidelines
Manual, see USSG 1A4(b), p.s., and 5K2.0, p.s., which,
the majority says, do no more than echo the statute.
Ante, at 5.  Since the policy statements referred to by the
majority merely refer to the statute, the majority's confu-
sion about the distinction between guidelines and policy
statements is without import.  But the majority concludes
that the ``guidelines''-and we have here at issue only a
policy statement, USSG 4A1.3, p.s.-qualify the propriety
of basing a departure on arrest records, and that the
District Court erred in relying on arrest records without
further explanation.  To the extent that the majority
equates the District Court's misinterpretation of this policy
statement with a misapplication of the guidelines that must
be dealt with under 3742(f)(1), it does so erroneously.
Such error by the District Court signifies only an invalid
grounds for departure, nothing more.  While the majority
concludes that such a policy statement ``prohibits a district
court from taking a specified action'' and thereby ``is an
authoritative guide to the meaning of the applicable
guideline,'' ante, at 6, it remains a fact that this statute
does not permit appellate review for the mere misinterpre-
tation of a policy statement.  See supra, at 6-8.
  Significantly, subsections (a) and (b) of 3742 do not
authorize appeal of a sentence imposed within the guideline
range correctly determined under the sentencing guidelines.
And if any alleged error is found to be without basis, the
appellate court ``shall affirm the sentence.''  18 U. S. C.
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 incor-
rect application of the sentencing guidelines when the error
results in a mistaken guideline range.  When such an error
is identified, remand is required.  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.
  Looking to this case, there is no question but that the
District Court correctly applied the relevant guidelines to
derive the properly applicable guideline range.  The
``guideline'' Williams places at issue, USSG 4A1.3, p.s., is
specifically designated as a policy statement, dealing only
with considerations of whether the criminal history category
calculated under the guidelines was so inadequate as to
warrant a departure.  This provision is solely to guide a
district court's discretion should it find departure from the
guidelines appropriate.  Because the District Court's error
here in construing this policy statement could in no way
affect the applicable guideline range, Williams is not
entitled to relief pursuant to subsections 3742(e)(2) and
(f)(1).
  Accordingly, the only available appellate consideration
here is whether Williams' sentence ``is outside the applica-
ble guideline range and is unreasonable.''  18 U. S. C.
3742(f)(2).  This inquiry is guided solely by 3742(e)(3),
which states in full:
   ``(e)Consideration.-Upon review of the record, the
   court of appeals shall determine whether the sen-
   tence-
       .      .     .      .      .
     ``(3)is outside the applicable guideline range, and is
     unreasonable, having regard for-
      ``(A)the factors to be considered in imposing a sen-
      tence, as set forth in chapter 227 of this title; and
      ``(B)the reasons for the imposition of the particu-
      lar sentence, as stated by the district court pursu-
      ant to the provisions of section 3553(c) . . . .''
Subsection (e)(3)(A) in fact refers to 18 U. S. C. 3553(a),
designating ``factors to be considered in imposing a sen-
tence.''  It should be noted as well that the reasons to be
assessed pursuant to subsection (e)(3)(B) arise directly from
findings by the district court that ``there exists an aggravat-
ing 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 Commis-
sion warrants departure.  Indeed, 3553(b) requires a
finding that the identified circumstances ``should result'' in
a sentence outside the applicable guideline range.  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 flexibili-
ty 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 propriety of the nature and
extent of any departure made.  In light of the surviving
reasons enunciated by the district court, the appellate court
must determine for itself the ``reasonableness'' of the
departure under the factors to be considered when imposing
sentence.  Subsection (a)(6)-``the need to avoid unwar-
ranted sentence disparities among defendants with similar
records who have been found guilty of similar
conduct''-takes on added significance in judging the
reasonableness of the extent of departure.  Congress
intended appellate review under the new sentencing regime
to guide and control the discretion long-reposed in the
district courts towards the ultimate goal of sentencing
reform:  to promote fairness and rationality, and to reduce
unwarranted disparity, in sentencing.  S. Report 78, 150,
161; see also 28 U. S. C. 992(b)(1).  The provisions of 18
U. S. C. 3742 establish the limited practice of appellate
review which Congress deemed ``essential to assure that the
guidelines are applied properly and to provide case law
development of the appropriate reasons for sentencing
outside the guidelines.''  S. Report 151.  Because the district
court must state its reasons when departing, 3553(c)(2),
and because the appellate court must ``state specific
reasons'' for concluding a departure sentence is unreason-
able, 3742(f)(2), case law development will proceed apace,
creating a ready benchmark by which to determine whether
the current offender has been dealt a sentence disparate
from similar criminals found guilty of similar crimes.  In
sum, ``while the reasonableness standard will be interpreted
and defined by subsequent case law, the incorporation into
this standard of the section 3553(b) departure test and the
section 3553(a) sentencing factors provides specific content
that will permit a broader judicial inquiry than otherwise
would be warranted by a bare reasonableness standard
alone.''  Wilkins, Sentencing Reform and Appellate Review,
46 Wash. & Lee L. Rev. 429, 444 (1989) (footnote omitted).
  In this case, the Seventh Circuit concluded that it was
error for the District Court to consider prior arrests not
resulting in conviction because no reliable evidence of the
conduct described in the arrest entries indicated a more
severe criminal history than the one provided by the
guidelines.  910 F.2d 1574, 1580 (1990); see USSG 4A1.3,
p.s.  The Court of Appeals correctly ruled, however, that ``a
sentence nevertheless may be upheld if there are proper
factors that, standing alone, would justify the departure.''
910 F.2d, at 1580 (citing United States v. Franklin, 902
F. 2d 501, 508-509 (CA7 1990)).  The Court of Appeals
noted that the District Court had also properly relied upon
convictions more than 15 years old, as well as the fact that
the petitioner had previously been convicted of the same
crime-felon in possession of a firearm.  910 F. 2d, at
1580; see USSG 4A1.3, p.s.; United States v. Schmude,
901 F.2d 555, 559 (CA7 1990).  The court found both
reasons to support a finding that the criminal history
category did not adequately reflect the severity of
petitioner's  criminal past, and that his propensity for
violence was laid bare in this case by his threats to the
lives of the DEA agents and their families.  910 F.2d, at
1580.  In conclusion, the Court of Appeals considered the 3-
month departure imposed by District Court, and stated that
``despite the error noted, the court correctly determined that
Mr. Williams' criminality was not reflected properly in the
criminal history category and the relevant evidence justified
the rather modest increase in sentence.''  Ibid.
  This appellate assessment of the validity of the sentence
imposed is sufficient.  As previously stated by the Seventh
Circuit in Franklin, it is not for the court on appeal ``to
probe the mind of the sentencing judge and try to determine
what portions of the departure he or she assigned to the
different grounds for departure.''  902 F.2d, at 508.  Instead,
the appellate court must assess for itself whether valid
reasons stated by the district court justify the magnitude of
departure.  Id., at 509.  This the Seventh Circuit did
without error, and I would affirm its judgment.
  Accordingly, I respectfully dissent.
