JOSEPH WILLIAMS, PETITIONER V. UNITED STATES OF AMERICA No. 90-6297 In The Supreme Court Of The United States October Term, 1990 On Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States TABLE OF CONTENTS Question presented Opinion below Jurisdiction Statutory provisions involved Statement Summary of argument Argument: The court of appeals properly affirmed the sentence in this case based on the valid grounds for departure cited by the district court A. The Sentencing Reform Act permits affirmance of a departure decision that is based on both valid and invalid grounds 1. A sentence can be "reasonable" even if some of the reasons given by the sentencing court to justify the sentence are invalid 2. An error in applying the Sentencing Guidelines does not require a remand for resentencing as long as the sentence was not imposed "as a result of" the misapplication of the Guidelines 3. Petitioner's sentence was neither unreasonable nor imposed as a result of misapplication of the Guidelines B. Decisions of this Court concerning appellate review of sentences support the action of the court of appeals in this case Conclusion OPINION BELOW The opinion of the court of appeals (J.A. 71-84) is reported at 910 F.2d 1574. JURISDICTION The judgment of the court of appeals was entered on August 27, 1990. The petition for a writ of certiorari was filed on November 21, 1990, and was granted on March 18, 1991. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED 18 U.S.C. 3742 provides, in pertinent part, as follows: (a) Appeal by a defendant. -- A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence -- (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable. * * * * * (e) Consideration. -- Upon review of the record, the court of appeals shall determine 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, having regard for -- (A) the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title (Sections 3551 through 3586); and (B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable. The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts. (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; * * * * * (3) is not described in paragraph (1) or (2), it shall affirm the sentence. QUESTION PRESENTED Whether the court of appeals was required to remand this case to the district court for resentencing after finding invalid one of the grounds that the district court cited in explaining its decision to depart upward from the Sentencing Guidelines range. STATEMENT Following a jury trial in the United States District Court for the Western District of Wisconsin, petitioner was convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g)(1). He was sentenced to 27 months' imprisonment, to be followed by a three-year term of supervised release. The court of appeals affirmed. J.A. 71-84. 1. Petitioner, a previously convicted felon, became the subject of an undercover investigation by the Bureau of Alcohol, Tobacco and Firearms (ATF) that began in the fall of 1988. Paul Harding, an ATF agent, met with petitioner seven times over a four-month period at petitioner's home in Mazomanie, Wisconsin. J.A. 72-73; Tr. 14-17. In the course of those meetings, petitioner told Agent Harding that he had fired .44 magnum handguns, that he had no problem handling a firearm of that size, and that he knew how to manufacture armor-piercing ammunition for his own .44 magnum. J.A. 72-73. Petitioner also showed Harding some bullet holes in a nearby van and said he had fired his .44 magnum into the van. J.A. 73. Several other witnesses testified that they had seen petitioner in possession of a .44 magnum gun on a number of occasions. Tr. 50-55, 62-67, 77-80. On April 12, 1989, Agent Harding obtained a search warrant for petitioner's home, where officers found a loaded .44 caliber magnum firearm in a desk drawer. J.A. 72. 2. Petitioner was convicted of unlawful possession of the .44 magnum firearm. The presentence report calculated his sentencing range under the Sentencing Guidelines as 18 to 24 months' imprisonment. That range reflected an offense level of 9 and a criminal history category of V. J.A. 73-74. The district court found that criminal history category V did not adequately reflect either the seriousness of petitioner's past criminal conduct or the likelihood that he would commit more crimes in the future. For that reason, the court concluded that an upward departure was appropriate. J.A. 68-69. Using the next higher criminal history category of VI, for which the Guidelines range was 21 to 27 months, the court sentenced petitioner to 27 months' imprisonment, an upward departure of 3 months from the 24-month sentence to which he was exposed under the Guidelines range for category V. The district court explained that in deciding to depart, it had considered two convictions that were too old to be counted in calculating petitioner's criminal history category: convictions for car theft and forgery in 1966 and 1967. See J.A. 46. While those convictions were old, the court explained, "they nonetheless suggest this defendant's career of criminal activity, unless discouraged, will continue." J.A. 69; see J.A. 39-40. The court also made note of petitioner's many arrests for serious criminal conduct that did not lead to prosecution. The court observed that "(t)he serious criminal conduct reflected in those arrests, coupled with those convictions not considered in the guidelines, suggest that after a review of all the relevant information this defendant's criminal history is more serious than that of most defendants in the same criminal history category." J.A. 69; see J.A. 53-54. The court then summarized the reasons for sentencing as it did, J.A. 69: The defendant is a 42-year-old offender with an extensive prior record. This is the second time he has come before the federal court for unlawful possession of a weapon. He has also threatened violence to undercover agents and is capable of violence. In view of his prior extensive criminal record and propensity for further crime and violence, the defendant is sentenced at the top of the guidelines. 3. The court of appeals affirmed. In reviewing the district court's departure decision, the court of appeals found that the district court's reliance on the two previous convictions was appropriate under Sentencing Guidelines Section 4A1.3, which allows consideration of old convictions as "'reliable information' indicating more extensive criminal conduct than otherwise reflected by the criminal history category." J.A. 79. The court of appeals found, however, that it was improper for the district court to rely on petitioner's arrest record. Petitioner's prior arrests could not support the district court's departure decision, the court of appeals held, because the district court did not set forth any basis other than the arrest record itself to suggest that the arrests reliably reflected criminal conduct on petitioner's part. J.A. 80-81, citing Sentencing Guidelines Section 4A1.3. The court of appeals nevertheless upheld the sentence. It found the three-month departure to be proper, based on the valid factors on which the district court relied. Those factors included not only the two convictions from 1966 and 1967, but also the threats petitioner had made on the lives of undercover agents and their families, see J.A. 11-13, 29-30, and the fact that petitioner had a previous conviction for the same offense, see J.A. 54-55. In light of those factors, the court of appeals held that the district court "correctly determined that (petitioner's) criminality was not reflected properly in the criminal history category and that the relevant evidence justified the rather modest increase in sentence." J.A. 82. SUMMARY OF ARGUMENT The issue in this case is one of remedy. It arises only after an appellate court has determined that in departing from the sentencing range indicated by the Sentencing Guidelines, the district court relied in part on an impermissible factor. The issue before this Court is whether, after making such a determination, a reviewing court must invariably remand the case to the district court for resentencing. The answer to that question is found in the statute governing appeals from sentences imposed under the Sentencing Guidelines. The statute, 18 U.S.C. 3742, provides that if the sentence falls outside the applicable Guidelines range, the reviewing court must remand for resentencing if it finds that the sentence is unreasonable. 18 U.S.C. 3742(f)(2). If the defendant challenges the sentence on the ground that it rested in part on an incorrect interpretation of the Sentencing Guidelines, the reviewing court also must remand for resentencing if it finds that the sentence was imposed "as a result of" the incorrect application of the Guidelines. 18 U.S.C. 3742(f)(1). The court of appeals agreed with petitioner that the district court misapplied the Guidelines by relying on his arrest record as one of the grounds for departing from the Guidelines sentencing range. Under Section 3742, therefore, the reviewing court was required to remand for resentencing if it found either that petitioner's sentence was unreasonable or that his sentence would have been different but for the error, i.e., that the sentence was "a result of" the error. Because neither condition was met in this case, the court of appeals was correct in declining to remand this case to the district court for resentencing. The court of appeals held that the three-month departure in this case was not unreasonable. That conclusion is sound. The modest departure is more than adequately justified by the valid aggravating circumstances cited by the district court, such as petitioner's convictions from the 1960s, his prior conviction for a similar weapons offense, and his threats of violence against government undercover agents and their families. Nothing in the record suggests that the district court would have imposed a different sentence if it had disregarded petitioner's arrest record. It was therefore unnecessary for the court of appeals to remand the case for resentencing, since there was no showing that the departure was unreasonable or was a result of the misapplication of the Sentencing Guidelines. ARGUMENT THE COURT OF APPEALS PROPERLY AFFIRMED THE SENTENCE IN THIS CASE BASED ON THE VALID GROUNDS FOR DEPARTURE CITED BY THE DISTRICT COURT A. The Sentencing Reform Act Permits Affirmance Of A Departure Decision That Is Based On Both Valid And Invalid Grounds The Sentencing Reform Act of 1984, Pub. L. No. 98-473, Tit. II, Ch. II, 98 Stat. 1987-2034, established a guideline system of sentencing. Acting pursuant to the statute, the Sentencing Commission established Guidelines that set presumptive sentencing ranges calculated by reference to an offender's conduct and his criminal background. The Act provides that a court may depart from the sentencing range dictated by the Sentencing Guidelines if 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" and that the aggravating or mitigating circumstance justifies a sentence outside the Guidelines range. 18 U.S.C. 3553(b). When a district court departs above the Guidelines range, the defendant can appeal from the sentence. 18 U.S.C. 3742(a)(3). In such a case, the defendant can obtain relief if the court of appeals determines that the sentence was unreasonable, or that it was imposed in violation of law or as a result of an incorrect application of the Guidelines. 18 U.S.C. 3742(f). Otherwise, the sentence must be affirmed. 18 U.S.C. 3742(f)(3). When the sentencing court relies on only a single factor in deciding to depart from the Guidelines range, the task of the reviewing court is straightforward: to determine if the reason for the departure is valid and the departure reasonable. If both conditions are satisfied, the sentence is upheld. But when the sentencing court relies on several factors in making its departure decision, and one of the factors is invalid, the question whether the sentence can be affirmed is more complex. In a case such as this one, in which the defendant claims that the district court departed from the Sentencing Guideline range because of a misapplication of the Guidelines, Section 3742 requires the court of appeals to ask four questions: (1) was there a departure from the applicable Guidelines range; (2) did the district court make an error in applying the Guidelines in the course of making its departure decision; (3) was the misapplication of the Guidelines responsible for the departure; and (4) was the resulting sentence reasonable. In this case, the first two questions have already been answered: there was a departure from the applicable Guidelines range, and the court of appeals held that the district court misapplied the Guidelines by relying on petitioner's arrest record as a factor in the departure decision. /1/ The issue in this case is how the resolution of the remaining two questions affects the proper disposition of the case. Petitioner argues (Br. 6) that whenever the reviewing court finds that the district court relied on an invalid factor in making its departure decision, the court must vacate the sentence and remand for resentencing. We disagree. In our view, a remand for resentencing is required only if the court of appeals finds that the departure was unreasonable or that the misapplication of the Guidelines was responsible for the departure. The language of the statute provides the answer. First, a sentence that departs from the Sentencing Guidelines range must be "reasonable." If it is not, the court of appeals must remand the case to the district court for resentencing. 18 U.S.C. 3742(f)(2). Second, a sentence must not be imposed "as a result of" a misapplication of the Sentencing Guidelines. Therefore, when a court of appeals determines that the district court has made an error in applying the Guidelines and the error has resulted in a greater sentence than the district court otherwise would have imposed, the court must remand for resentencing. 18 U.S.C. 3742(f)(1). Conversely, a remand for resentencing is not required if the sentence the district court imposed is reasonable and there is no indication that the sentence would have been different absent the challenged misapplication of the Guidelines. 18 U.S.C. 3742(f)(3). /2/ 1. A Sentence can be "Reasonable" Even if Some of the Reasons Given by the Sentencing Court To Justify the Sentence are Invalid Congress has not defined the term "unreasonable," as that term is used in Section 3742. Nonetheless, the statute makes it clear that the task of determining whether a sentence is unreasonable is left to the judgment of the reviewing court, subject to two provisos: that the court should consider the factors set forth in the sentencing provisions of Title 18, especially 18 U.S.C. 3553(a); and that the court should consider "the reasons for the imposition of the particular sentence, as stated by the district court." 18 U.S.C. 3742(e)(3). The statutory scheme thus gives a reviewing court broad discretion in determining the reasonableness of a sentence in light of the statutory factors to be considered in sentencing. See 18 U.S.C. 3553(a), 3742(e)(3)(A). By directing the reviewing court's attention to the reasons given by the district court, the statute suggests that the district court's explanation of its sentencing decision may assist or channel the reviewing court's reasonableness inquiry. But nothing in the statute requires the court of appeals to set aside the district court's sentence and remand the case for resentencing if the court of appeals, after its own inquiry, finds the sentence to be a reasonable one under all the circumstances. Therefore, even if the court of appeals disagrees with one or more of the reasons given by the district court for imposing a particular sentence, the court of appeals may still find the sentence to be reasonable and a remand therefore unnecessary under 18 U.S.C. 3742(f)(2). /3/ 2. An Error in Applying the Sentencing Guidelines Does not Require a Remand for Resentencing as Long as the Sentence was not Imposed "as a Result of" the Misapplication of the Guidelines In many cases, a defendant who appeals from a departure decision argues that the departure was improper not only because the sentence imposed was unreasonable, but also because the district court misapplied the Guidelines in making its departure decision. That is true in this case where the defendant argued, and the court of appeals agreed, that the district court misapplied the Guidelines by relying on petitioner's arrest record in evaluating his criminal background. See Sentencing Guidelines Section 4A1.3(e). Even when a reviewing court finds that the district court has misapplied the Guidelines, the case must be remanded for resentencing only if the reviewing court determines that the sentence was imposed "as a result of" the misapplication. 18 U.S.C. 3742(f)(1). That is, unless the court of appeals finds that the challenged sentence would have been different but for the error, the court of appeals need not vacate the sentence and remand the case for further proceedings before the district court. In some cases, of course, the district court at the time of the departure may specifically indicate that the factor that is later held invalid was critical to the court's decision to depart or was responsible for the degree of the departure. In such cases, it is clear that the sentence was imposed "as a result of" the misapplication of the Guidelines, so the statutory condition for a remand is clearly satisfied. In other cases, the court of appeals will be able to conclude from the circumstances surrounding the sentencing decision that the invalid factor was probably responsible for the district court's decision to depart or for the degree of the departure. In those cases as well, Section 3742(f)(1) would require the court of appeals to vacate the sentence and remand for resentencing. Although in many cases the reviewing court will be able to determine whether the district court departed as a result of an invalid factor, that will not always be true. If the district court cites several different factors in support of its departure decision, only one of which is invalid, it sometimes will not be possible to determine that the invalid ground caused the departure. /4/ When the reviewing court cannot make such a finding, a remand is not required, because the statutory precondition that the challenged sentence be "determine(d)" to have been "imposed as a result of an incorrect application of the sentencing guidelines" is not satisfied. /5/ In cases of that sort, as the Seventh Circuit has noted, the appellate court is under no obligation 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." United States v. Franklin, 902 F.2d 501, 508 (7th Cir.), cert. denied, 111 S. Ct. 274 (1990). Accordingly, in the absence of evidence that the district court would have imposed a different sentence if it had disregarded the invalid factor, the court of appeals should affirm the sentence. Interpreting Section 3742 to require resentencing only when the court of appeals can conclude that the sentence was unreasonable or that an invalid factor affected the sentence is consistent with congressional policy embodied in the Sentencing Reform Act. Prior to the Act, district courts had almost unlimited discretion in determining what sentence to impose. Appellate review of a sentence that did not exceed the statutory maximum was barred except in very limited circumstances. See Dorszynski v. United States, 418 U.S. 424, 443 (1974); Gore v. United States, 357 U.S. 386, 393 (1958). The Sentencing Reform Act introduced appellate review of sentences in order to ensure the proper application of the Sentencing Guidelines. See S. Rep. No. 225, 98th Cong., 1st Sess. 151 (1983). The introduction of appellate review of sentences, however, was not designed to abrogate altogether the district court's sentencing discretion or reverse the court of appeals' traditionally deferential stance toward the district court's exercise of its sentencing function. Id. at 150 ("The sentencing provisions * * * are designed to preserve the concept that the discretion of a sentencing judge has a proper place in sentencing"). In light of Congress's concern to preserve the sentencing court's discretion to the greatest extent possible consistent with implementing a rational scheme of appellate review of sentences, it is not surprising that Congress designed the review statute to require sentences to be vacated only when the reviewing court could determine that the sentence was unreasonable or that the challenged error of law was responsible for the sentence that was imposed. 3. Petitioner's Sentence was Neither Unreasonable nor Imposed as a Result of Misapplication of the Guidelines The court of appeals was able to determine, without the need for a remand, that the departure in this case was reasonable and was justified by proper considerations. As the court of appeals observed, the district court conducted a "searching inquiry" into petitioner's past criminal conduct, J.A. 82, and identified several factors that justified an increase in petitioner's criminal history category. J.A. 29-30, 46-47, 53-54, 68-69. The evidence at the lengthy sentencing hearing showed that petitioner had threatened the ATF undercover agent by saying he would track down the agent's family and blow up his house if petitioner were arrested. Petitioner also made threats to harm others, including DEA agents. J.A. 11-13, 29-30. The court found that petitioner had five previous felony convictions, as well as a recent drunk driving offense, J.A. 46-47. The evidence further showed that one of petitioner's prior convictions was for the same offense with which he was charged in this case: possession of a firearm by a convicted felon. J.A. 51. Even petitioner's counsel conceded that petitioner's criminal record was "certainly lengthy" and "demonstrates a long history of involvement with law enforcement authorities in a number of jurisdictions." J.A. 50. In finding that criminal history category V did not adequately reflect petitioner's criminal background, the district court placed primary emphasis on petitioner's convictions, stating that "the record is replete with convictions," including five convictions for felonies. J.A. 53. The court then noted that "the 10 points assessed (for criminal convictions under Sentencing Guidelines Section 4A1.1) is insufficient for the five felonies." Ibid. It was only after making that observation that the court referred to petitioner's long arrest record. In that connection, moreover, the court acknowledged that an arrest record itself may not be used as a basis for departing from a Guidelines sentence. Ibid. In light of "all of the relevant information, the types of offenses, the criminal conduct in which (petitioner) has been involved throughout his life," and in light of the two felony convictions from the 1960s that were not considered in calculating petitioner's criminal history score, the court concluded that it should in effect add three points to petitioner's criminal history score, raising his score from 10 to 13 and thus raising his criminal history category from V to VI. J.A. 54. Recognizing that any valid reason would support a modest departure of three months over the 18 to 24 month sentence to which petitioner was exposed under the Guidelines, the court of appeals correctly concluded that, even without taking into account petitioner's arrest record, the district court almost certainly would have imposed the same sentence. The district court's careful consideration of petitioner's criminal background demonstrates that the three-month departure from the Guidelines range was both reasonable and not the product of the court's consideration of petitioner's arrest record. The court specifically noted that petitioner's criminal history score of 10 was insufficient in light of his five felony convictions, J.A. 53. That comment in itself is a strong indication that the court would have departed from the Guidelines range even absent any reference to petitioner's record. Moreover, the court expressly recognized that it could not rely on petitioner's arrest record as a ground of departure, and it apparently relied on the arrest record only as corroboration for its observation that petitioner had a lifelong involvement with the criminal justice system. Ibid. On this record, then, the court of appeals was entirely justified in declining to vacate petitioner's sentence and remand the case for resentencing. B. Decisions Of This Court Concerning Appellate Review Of Sentences Support The Action Of The Court Of Appeals In This Case This Court's decisions on other, related sentencing issues provide support by analogy to the analysis set forth above. For example, in several cases coming before this Court, defendants were convicted on separate counts and received general sentences that were not linked to any one of the counts. In each case, the Court followed the rule that the sentence was valid if the conviction on any of the counts was sustainable. See Claassen v. United States, 142 U.S. 140, 146-147 (1891); Pinkerton v. United States, 328 U.S. 640, 641-642 n.1 (1946); Barenblatt v. United States, 360 U.S. 109, 115 (1959). In his concurrence in Zant v. Stephens, 462 U.S. 862, 902 (1983), then-Justice Rehnquist explained the "practical basis for the rules articulated in * * * the Claassen line of cases": (S)entencing decisions rest on a far-reaching inquiry into countless facts and circumstances and not on the type of proof of particular elements that returning a conviction does. The fact that one of the countless considerations that the sentencer would have taken into account was erroneous, misleading, or otherwise improperly before him, ordinarily can be assumed not to have been a necessary basis for his decision. See also United States v. Sacco, 927 F.2d 726, 729 (2d Cir. 1991) (following the Claassen rule where the court of appeals found "no reason to believe that the district court would have given * * * a different sentence absent the * * * (invalid) conviction"). The Claassen cases are closely analogous to this case. In each, the reviewing court could not be certain that the sentencing decision would have been the same regardless of the invalid sentencing factor. But in each, the reviewing court found it unnecessary to vacate the sentence because of the possibility that the sentence might have been affected by the invalid factor. As Justice Rehnquist pointed out, the sentencing decision draws on a sufficiently broad range of considerations that it is reasonable to assume that a single invalid factor did not affect the sentencing court's decision unless there is some indication to the contrary. A recent case involving a jury's decision to impose the death penalty provides another close analogy to this case. In Zant v. Stephens, 462 U.S. 862 (1983), the jury was required to find one or more aggravating circumstances before imposing the death penalty. The jury found two aggravating circumstances and sentenced the defendant to death. One of the aggravating circumstances, however, was held to be unconstitutionally vague. This Court nevertheless decided that the sentence could stand, 462 U.S. at 864-869, since one of the two aggravating circumstances found by the jury was "valid and legally sufficient to support the death penalty." Id. at 881. /6/ This case is no different in principle from Zant. Here, the sentencing court expressly stated its reliance on several grounds for a departure from the Guidelines, one of which turned out to be invalid. The remaining grounds, however, were "valid and legally sufficient" to support the quite modest departure ordered by the district court. As in Zant, it was therefore proper for the court of appeals to uphold the district court's departure decision. /7/ Finally, the Court's recent decision in Clemons v. Mississippi, 110 S. Ct. 1441 (1990), provides another instructive analogy. In Clemons, the jury imposed the death penalty after finding two aggravating factors, which outweighed the mitigating circumstances. On appeal, the Mississippi Supreme Court found one of the aggravating factors invalid, but it upheld the death sentence after weighing the remaining aggravating factor against the mitigating circumstances and finding that the death penalty was still appropriate. The Clemons Court held that the Constitution does not prohibit an appellate court from upholding a death sentence after reweighing the mitigating circumstances against the remaining valid aggravating circumstance. 110 S. Ct. at 1446. The Court rejected any notion that due process requires that a jury impose the sentence of death or make the findings necessary to its imposition, and it found no other constitutional bar to appellate reweighing of the aggravating and mitigating factors. Indeed, the Court noted that much the same process of weighing aggravating and mitigating factors was involved in normal appellate review of death sentences, so it considered appellate reweighing of the factors justifying a death sentence consistent with the fairness, reliability, and consistency that are required for the constitutional application of the death penalty. Id. at 1448-1449. The reasoning in Clemons applies with equal force here. To the extent that a reviewing court determines for itself whether the valid reasons listed by the district court are sufficient to justify the entire amount of the departure, Clemons teaches that that procedure is not unfair or improper, as long as it is consistent with the statutory scheme for appellate review of sentences. See Clemons, 110 S. Ct. at 1445-1448. Cf. Hicks v. Oklahoma, 447 U.S. 343 (1980) (state law creating entitlement to jury sentencing). As we have shown above, Section 3742 assigns the appellate courts the task of determining the reasonableness of a sentence and determining the effect of an error of law by the district court on the sentence imposed. Clemons demonstrates that there is nothing anomalous or unfair about assigning that task to an appellate court as part of the statutory function of appellate review of sentences. There is therefore no impediment, either in the Constitution or the traditional role performed by appellate courts, to reading Section 3742 as it is written. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General AMY L. WAX Assistant to the Solicitor General KATHLEEN A. FELTON Attorney JUNE 1991 /1/ We have not challenged the court of appeals' decision in that regard. /2/ Several courts of appeals have addressed the question whether resentencing is required whenever the reviewing court finds that some, but not all, of the sentencing factors relied on by the sentencing court are invalid. Some have held that resentencing is routinely required in such cases. See United States v. Zamarripa, 905 F.2d 337, 342 (10th Cir. 1990); United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315 (9th Cir. 1989); United States v. Nuno-Para, 877 F.2d 1409, 1414 (9th Cir. 1989). Others have held that resentencing is not ordinarily required in such cases. See United States v. Alba, No. 90-1523 (2d Cir. May 23, 1991), slip op. 4488-4490; United States v. Diaz-Bastardo, 929 F.2d 798, 800 (1st Cir. 1991); United States v. Christoph, 904 F.2d 1036, 1042 (6th Cir. 1990), cert. denied, 111 S. Ct. 713 (1991); United States v. Franklin, 902 F.2d 501, 508-509 (7th Cir.), cert. denied, 111 S. Ct. 274 (1990); United States v. Rodriguez, 882 F.2d 1059, 1068 (6th Cir. 1989), cert. denied, 110 S. Ct. 1144 (1990); see also United States v. Hummer, 916 F.2d 186, 195 n.8 (4th Cir. 1990), cert. denied, 111 S. Ct. 1608 (1991). The discussion of the point in most of these cases is quite abbreviated, and in none of the cases is there a detailed discussion of the language of Section 3742, the statute that governs appellate review of Guidelines sentences. /3/ That is not to say that it would necessarily be error for a court of appeals to remand the case to a district court when the only issue before the court of appeals is whether the sentence is unreasonable. The statutory reference to the district court's reasons for selecting a particular sentence suggests that there may be cases in which the court of appeals' reasonableness inquiry could benefit from a supplemental statement of the district court's views on the matter. Accordingly, after the court of appeals has corrected a legal error in the district court's initial sentencing determination, the court may elect to remand the case to the district court for resentencing or for further explanation of the sentence it imposed. Apart from the authority granted by Section 3742, the court of appeals has general statutory authority to remand a case for "such further proceedings to be had as may be just under the circumstances." 28 U.S.C. 2106. /4/ The statutory requirement that the district court state the reasons for its sentence at the time of sentencing, 18 U.S.C. 3553(c), will ensure that in most cases the court of appeals will be able to determine from the record whether the invalid factor affected the sentence that the district court imposed. /5/ The same general principle applies in cases in which the defendant appeals on the ground that the sentence was imposed "in violation of law." 18 U.S.C. 3742(a)(1). In that setting, as in the case of an alleged misapplication of the Guidelines, a remand is required only if the court of appeals "determines that the sentence was imposed in violation of law"; i.e., the court must conclude that the alleged violation of law affected the sentence that was actually imposed. /6/ The defendant argued in Zant that the case was controlled by Stromberg v. California, 283 U.S. 359 (1931), which held that "a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground." Zant, 462 U.S. at 881. The Zant Court found the Stromberg rule inapplicable, because all the cases in which it had been applied involved general verdicts on a record from which the reviewing court was unable to determine the actual ground on which the jury's decision rested, and could not rule out that the decision rested exclusively on the invalid ground. 462 U.S. at 881. In Zant, by contrast, the jury did not return a general verdict stating simply that it had found at least one aggravating circumstance. See also 462 U.S. at 898 (Rehnquist, J., concurring) ("(T)he Stromberg rule is plainly distinguishable, since the jury explicitly returned two concededly valid aggravating circumstances, thereby conclusively negating the inference that it rested solely on the invalid circumstance."). In this case, likewise, the findings of the sentencing court make it clear that the court did not rely exclusively on an invalid factor as the basis for departure. /7/ This case bears no resemblance to United States v. Tucker, 404 U.S. 443 (1972), and Townsend v. Burke, 334 U.S. 736 (1948), in which this Court ordered resentencing where it was clear that invalid considerations of constitutional dimension overwhelmed all other factors bearing on the sentencing court's decision. See Tucker, 404 U.S. at 448 (invalid convictions had a dramatic impact on the sentencing decision); Townsend, 334 U.S. at 741 (sentence rested on a foundation that was "extensively and materially false").