82 F.3d 436 | D.C. Cir. | 1996
Lead Opinion
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
Concurring Opinion filed by Circuit Judge TATEL.
Dissenting Opinion, filed by Circuit Judge WALD.
In establishing minimum mandatory penalties for drug offenses in the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-670, 100 Stat. 3207, Congress adopted a 100:1 ratio as between amounts of cocaine powder and cocaine base, generally known as crack. 21 U.S.C. § 841(a) & (b). The five-year mandatory minimum kicks in, for distribution or possession with intent to distribute, at 500 grams of cocaine powder but at only five grams of crack. 21 U.S.C. § 841(b). The ten-year minimum starts at five kilograms of cocaine or 50 grams of crack. Id. In its effort to grade penalties in accordance with the severity of the offense, as measured for drug offenses in part by the quantity of drugs, the Sentencing Commission incorporated the statutory ratio, both for lower and higher quantities. Thus drug convictions involving at least 500 but less than 2000 grams of cocaine, or at least 5 but less than 20 grams of crack, equally produce a base offense level of 26. U.S. Sentencing Guidelines (“U.S.S.G.”) § 2D1.1. Absent any further adjustments, this would lead to a sentencing range of 63 months (just above the five-year statutory minimum) to 78 months. Id. at Ch. 5, Pt. A. The next quantitative step up, 2-to-3.5 kilograms of cocaine or 20-to-35. grams of crack, would take the offense to level 28 and a range of 78 to 97 months. And so on. The Commission explained that “[t]he base offense levels in § 2D1.1 are either provided directly by the Anti-Drug Abuse Act of 1986 or are proportional to the levels established by statute.... Levels 32 and 26 in the Drug Quantity Table are the distinctions provided by the Anti-Drug Abuse Act; however, further refinement of drug amounts is essential to provide a logical sentencing structure for drug offenses.” U.S.S.G. § 2D1.1 (commentary, background).
The 100:1 ratio has been subject to severe attack, particularly because the use and marketing of cocaine powder and crack appear to follow a racial fault line, with blacks being characteristically subject to the far more draconian crack penalties. See, e.g., United States v. Thompson, 27 F.3d 671, 678 (D.C.Cir.1994); United States v. Armstrong, 48 F.3d 1508, 1511-12, 1515 (9th Cir.), cert. granted, — U.S. —, 116 S.Ct. 377, 133 L.Ed.2d 301 (1995). The widespread concern has led to an exchange between Congress and the Sentencing Commission, as yet inconclusive, but which appellants claim establishes that the flaws in the 100:1 ratio amount to a “mitigating circumstance ... not adequately taken into consideration” by the Sentencing Commission, thereby authorizing a departure under 18 U.S.C. § 3553(b) below the otherwise indicated Guidelines range.
In the Omnibus Violent Crime Control and Law Enforcement Act of 1994, Congress directed the Commission to produce a report on the difference in penalty levels, along with any recommendations for change. Pub.L. No. 103-322, § 280006, 108 Stat. 2097. The Commission duly produced a report that— after reviewing the varieties of cocaine, examining the health effects of their use, describing how they are distributed, and at
Both appellants here pleaded guilty to offenses involving at least five but less than 20 grams of crack, leading to initial classification of their offenses at level 26. Both calculations were subject to further adjustments that are not in dispute here, so that, even though they were sentenced at the very bottom of their Guidelines range, both received sentences well above the five-year mandatory minimum; thus, despite Congress’s retention of the 100:1 ratio in those minimums, for them a downward departure would have been feasible (i.e., would not have bumped into the mandatory floor) if it had been permissible under the Guidelines. Both were sentenced after the Commission made its 1:1 proposal to Congress but before the congressional rejection, and both asked the district judge (the same one, as it happened) to depart downwards on the theory that the Commission’s report and recommendation proved the inadequacy of the Commission’s prior “consideration” of the cocaine-crack relationship. The district court declined, expressly stating that it lacked authority, and reasoning that the proposed amendment was “not a law” but “just a recommendation to Congress.” We agree that the Commission’s and Congress’s ongoing and inchoate efforts to alter the status quo do not give district Judges authority to depart.
District courts have statutory authority to depart from sentencing levels established in the Guidelines if
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.
18 U.S.C. § 3553(b); see also U.S.S.G. § 5K2.0 (policy statement). We reject the
We question whether one could read “adequately” as used in § 3553(b) to permit courts to find the Commission’s “consideration” of a factor inadequate unless the Commission has not officially considered the factor at all — “circumstances of a kind” — or has not addressed the extremity of the case — “or to a degree.” In its statement of purposes for establishment of the guidelines and the Commission, interestingly, Congress in fact used a formula omitting the word “adequately” altogether, saying that its goal was to avoid sentencing disparities “while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.” 28 U.S.C. § 991(b)(1)(B).
In any event the Commission has explained that it intends the district courts to “treat each guideline as carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes,” and to consider departing only if the court “finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm.” U.S.S.G. Ch. 1, Pt. A, § 4(b) (policy statement) (emphasis added); see also United States v. Dyce, 78 F.3d 610, 612 (D.C.Cir.1996) (explaining atypicality requirement). This interpretation is an entirely reasonable reading of the statute. See United States v. Doe, 934 F.2d 353, 359 (D.C.Cir.1991) (courts defer to reasonable interpretations by Sentencing Commission under Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984)); cf. Williams v. United States, 503 U.S. 193, 201, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992) (policy statements limiting district court discretion to depart are “authoritative guide[s]” to meaning, of Guidelines).
The district court’s decision that circumstances are of a “kind” or “degree” that warrant departure will not involve a “quintessentially legal” interpretation of the words of a guideline, but rather will amount to a judgment about whether the given circumstances, as seen from the district court’s unique vantage point, are usual or unusual, ordinary or not ordinary, and to what extent.
Id. at 951 (emphasis added). This reading assures fulfillment of the Guidelines’ effort to structure sentencing coherently. . Non-Guidelines sentences will occur only where the Commission has completely overlooked a factor (an event that is presumably rare and almost inconceivable for a characteristic typical of a crime .or of defendants) or where the defendant’s case manifests a circumstance that was considered but which is present in such an extreme form that the Guidelines’ adjustment for it is inadequate.
Appellants cite United States v. Smith, 27 F.3d 649 (D.C.Cir.1994), to prove the absence of any atypicality requirement. But in that ease, holding that a downward departure was permissible where defendant would serve his sentence under harsher conditions solely because he was a deportable alien, neither the majority nor the dissent could find any suggestion that the Commission had considered that circumstance at all in establishing the Guidelines. (Although the Commission’s complete lack of consideration was not men
In their briefs appellants try to get around these limitations on the meaning of adequate consideration by stressing that the Commission itself found that its earlier decision failed to take adequate account of the (lack of) differences between powder cocaine and crack. But 18 U.S.C. § 3553(b) states: “In determining whether a circumstance was adequately taken into account, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” As the Commission has not so characterized its report and recommendation to Congress on crack, they would seem to have no more weight for these purposes than a report by a learned society.
Insofar as appellants try to escape this reasoning, they argue that Congress didn’t just reject the proposal, it invited the Commission to reconsider and to come up with an alternative. But a direction to study a matter, even from Congress, cannot be said to change the state of the low (here, the legal fact that the Commission has considered the “circumstance” — the difference between crack and powder cocaine). If it could, then directions to study, which often accompany legislation, see, e.g., Natural Gas Policy Act, Pub.L. No. 95-621, § 123, 92 Stat. 3350, 3371 (1978) (calling for Department of Energy to produce reports on “competitive conditions and market forces in the natural gas industry in the United States”), might be deemed to change the interpretation of the statute to which they are ancillary — and evidently to change it in completely random ways, in accordance with whatever the interpreting judge might expect to flow from the study.
Acceptance of appellants’ argument would logically allow every sentencing district judge to select his or her personal crack-cocaine ratio, at any level between 100:1 (by denying departure) and 1:1. It is hard to imagine a more flagrant violation of the Guidelines’ purpose to avoid “unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.” 28 U.S.C. § 991(b)(1)(B); see also United States v. Williams, 980 F.2d 1463, 1467 (D.C.Cir.1992) (“The very purpose of the Guidelines ... was to eliminate disparity in the sentences of similarly situated defendants.”).
Apart from those disparities, appellants’ theory, would greatly exacerbate a problem that the mandatory mínimums already entail. A defendant guilty of distributing exactly five grams of crack, and whose treatment under the Guidelines calls for no upward adjustment, must get a minimum of five years. 21
Insofar as Hogan makes any separate argument (which his counsel disclaimed at oral argument), it runs roughly as follows: In the commission of my offense I did not engage at all in certain aggravating conduct (e.g., causing death or injury, possession or use of weapons, or sales of drugs to juveniles) that the Commission has (1) specifically identified as appropriate grounds for upward adjustments and (2) used in its crack report as part of the explanation for its adoption of the 100:1 ratio for crack. In other words, the Commission double-counted by considering the same factors in setting both the base offense level and upward adjustments. Accordingly, he implicitly argues, it is appropriate in context to treat the absence of these factors in his case as special mitigating circumstances “not adequately taken into consideration” by the Commission.
The difficulty with Hogan’s position is that it underscores why the Commission as a realistic matter could not classify its crack report and recommendations among the official materials to be considered under § 3553(b). To do so would have been to render those official materials hopelessly self-contradictory, saying on the one hand that crack deserves truly draconian treatment because of its statistical association with special characteristics, but also that those special characteristics are to be handled on a retail, individualized basis.
.None of our analysis is dependent on any assumption that the Commission and Congress will not, ultimately, modify the 100:1 ratio. The Commission has effective power to make its decisions retroactive. This is because Congress has authorized the courts to reduce a sentence where the Commission has lowered the sentencing range after a defendant’s sentencing and the reduction would be consistent with the Commission’s “applicable policy statements.” 18 U.S.C. § 3582(c)(2). The Commission lists its amendments for which it intends retroactivity, explaining that reduction under § 3582(c)(2) on the basis of amendments not so listed would not be “consistent with [its] policy statement” on the subject. U.S.S.G. § 1B1.10. This is the method that the statute contemplates for change, a method that, unlike appellants’ proposed analysis, enables the Commission to make systematic efforts to minimize sentencing disparities.
. As we understand our dissenting colleague’s opinion, it turns on a proposition not advanced by either appellant, namely, that the 100:1 ratio “violate[s] § 3553(a)’s instructions that a court impose a sentence ‘sufficient, but not greater than necessary’ to ‘reflect the seriousness of the offense’ and ‘provide just punishment.’” Dissent at 7. Because the issue was not raised by appellants, we do not pass on it, but we must note a few problems. First, it is far from clear that § 3553(a) provides a standard by which the Guidelines themselves are to be judged. It is in terms an instruction to the sentencing court, and, given § 3553(b)’s express provision for going outside the “range” determined by application of the Guidelines, would seem presumptively directed to the court’s exercise of its discretion within that range. Second, if (1) § 3553(a) is a standard for evaluation of the Guidelines themselves, and (2) the 100:1 ratio violates that standard, then Congress has at best sent rather con
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The district court correctly decided that Congress’s and the Commission’s actions gave it no power to depart. The judgments are therefore
Affirmed.
. The Commission did make an effort to explain why its former conclusion about crack’s greater addictiveness — a factor not captured in the Guidelines apart from the ratio — did not justify a sentencing disparity: because, although powder cocaine cannot be smoked and is usually taken by the less addictive method of snorting, "powder cocaine may be injected and injection is even more likely to lead to addiction than is smoking.” 60 Fed.Reg. at 25077. But the Commission dismissed another factor not captured elsewhere in the Guidelines, crack's comparative cheapness, simply by saying: “Nor does the fact that crack cocaine is typically sold in smaller amounts, which may make it more readily available among lower-income groups, justify increased punishment compared to a form of the drug that is more commonly sold in amounts available only to more affluent persons." Id.
. As the Dissent observes, the Court in Stinson v. United States, 508 U.S. 36, 44-45, 113 S.Ct. 1913, 1918-19, 123 L.Ed.2d 598 (1993), said that commentary should be treated as an agency’s interpretation of its own legislative rule, see Dissent at 2-3, which is more deferential than Chevron review, see Stinson, 508 U.S. at 44, 113 S.Ct. at 1918. But Stinson involved commentary on a guideline, as the Court stressed, id. at 42-43, 113 S.Ct. at 1917-18, whereas the key policy statement embodying the atypicality requirement, U.S.S.G. Ch. 1, Pt. A, § 4(b), is an interpretation of a statute, 18 U.S.C. § 3553(b), so it is not clear why greater-than-Ckevron deference would be suitable under the principles of Stinson. In any event, the point is clearly not critical here, as the Dissent, asserting a greater level of deference than we do, finds the Commission's view not worthy of deference as applied to this set of facts.
. Section 3553(b) is not entirely clear as to how a court is to determine from the specified documents "whether a circumstance was adequately taken into account.” Although § 3553(b) instructs courts to consider only guidelines, policy statements, and official commentary to determine whether the Commission adequately took into account a factor, it does not specify how or against what courts are to measure the adequacy of the Commission’s consideration of a factor.
Concurrence Opinion
concurring in part and concurring in the judgment:
I join the judgment of the court and that portion of Judge Williams’s opinion finding the appellants’ position inconsistent with the Sentencing Commission’s interpretation of 18 U.S.C. § 3553(b) as permitting departure only in atypical cases. I write separately because I do not entirely agree with Judge Williams’s interpretation of § 3553(b) and because I wish to explain more fully why I am unpersuaded by a separate argument that appellant Hogan appears to have made in his briefs.
Section 3553(b) requires a sentencing court to impose a sentence within the applicable Sentencing Guidelines range “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.” Although I agree with Judge Williams that we should defer to the Commission’s interpretation of § 3553(b), I do not share his view that § 3553(b) permits departures only when “the Commission has completely overlooked a factor ... or [when] the defendant’s case manifests a circumstance that was considered but which is present in ... an extreme form.” Opinion of Williams, J., at 439 (emphasis added). In my view, this interpretation ignores the word “adequately.” Quite apart from the degree to which a circumstance exists in a particular defendant’s case, the statute leaves open the possibility that departure may be warranted for circumstances “of a kind” to which the Commission gave some consideration, but not adequate consideration.
I would instead affirm the district court by relying exclusively on the Commission’s policy statement interpreting § 3553(b). The Sentencing Commission has explained:
The Commission intends the sentencing courts to treat each guideline as carving out a “heartland,” a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether, a departure is warranted.
U.S.S.G. Ch. 1, Pt. A, § (4)(b) (policy statement). As for the standard governing our review of this policy statement, Judge Williams views the statement as an interpretation of a statute, § 3553(b), thus suggesting that our review is governed by the standards set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). Judge Wald, in contrast, views the policy statement as an interpretation of the sentencing guidelines and thus suggests a inore deferential standard of review. Cf. Stinson v. United States, 508 U.S. 36, 44-45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (stating that the Commission’s official commentary on guidelines is entitled to the same level of deference as that given to an agency’s interpretation of its own regulation). To me, the question is close. Although the policy statement styles itself “an aid to understanding the guidelines,” U.S.S.G. Ch. 1, Pt. A, § (4)(b) (policy statement), the statement’s “heartland” discussion follows a quotation from § 3553(b) and could reasonably be viewed as interpreting that statutory provision. We need not decide precisely which standard of review applies, however, for we
On its face, § 3553(b) does not indicate whether each guideline should be viewed as carving out a “heartland” of cases in which departure will not be warranted or whether, instead, district courts may base departures on circumstances that are present in eveiy ease for an offense described by a particular guideline. The statute speaks merely of “an aggravating or mitigating circumstance ... that should result in a sentence different from that described.” Because the language of the statute does not speak directly to the question whether departure should be reserved for atypical cases — and is not inconsistent with an interpretation restricting departure to such atypical cases — we must defer to the Commission’s interpretation if it is reasonable and not contrary to law.
By virtue of its requirement of atypical circumstances, the Commission reads the statute to mean, at the very least, that a circumstance present in every ease for an offense described by a particular guideline is not a “circumstance ... that should result in a sentence different from that described.” This reading of § 3553(b) is reasonable. Allowing departure in every case for an offense described by a particular guideline would be equivalent to having no guideline at all for that offense. Under the Commission’s reading, § 3553(b) does not give defendants a tool for attacking a guideline itself, but rather affords them an opportunity to demonstrate that their cases should not be treated as falling within a particular guideline. Although Anderson and Hogan advance a reasonable interpretation of § 3553(b), our task is not to choose among plausible readings of that provision, but to defer to the Commission’s permissible and reasonable interpretation.
In light of the Commission’s “heartland” interpretation of § 3553(b), I would distinguish United States v. Smith, 27 F.3d 649 (D.C.Cir.1994), differently than Judge Williams does. Whether the Commission completely failed to consider alien status— the suggested ground for departure in Smith — is not the relevant distinction between that case and this one. Instead, what differentiates the basis for departure in Smith from the basis on which the appellants in this case seek departure is that permitting departures based on alien status leaves in place a “heartland” of cases described by a sentencing guideline. In contrast, Anderson and Hogan propose a basis for departure that would apply to all crack cocaine defendants.
Relying on the Commission’s special report on cocaine sentencing, our dissenting colleague argues that application of the Commission’s “heartland” interpretation of § 3553(b) to bar downward departures on the ground suggested by the appellants in this case would violate 18 U.S.C. § 3553(a), which provides that a sentencing court “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of sentencing set forth in § 3553(a)(2). According to the dissent, § 3553(b), read in conjunction with § 3553(a), authorizes departures from Guidelines sentences even in cases that are typical for a particular offense if Guidelines sentences would be “greater than necessary” to serve the statutorily identified purposes of sentencing. Like Judge Williams, I disagree. In my view, § 3553(a) does not itself provide a standard for determining when departure is appropriate. See United States v. Davern, 970 F.2d 1490, 1492-93 (6th Cir.1992) (en banc), cert. denied, 507 U.S. 923, 113 S.Ct. 1289, 122 L.Ed.2d 681 (1993). Section 3553(b) provides that absent inadequately considered mitigating or aggravating circumstances, a sentencing court “shall impose” a sentence within the appropriate Guidelines range, and § 3553(a) itself instructs á sentencing court to consider the sentencing range for “the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines,” 18 U.S.C. § 3553(a)(4)(A) (1994). Therefore, I read § 3553(a) as simply instructing a sentencing court how to select a sentence within an applicable Guidelines range or how to choose a sentence if departure is warranted under the standard set forth in § 3553(b).
In my view, Hogan’s argument fails because the relevance of the special report to a district court’s inquiry under § 3553(b) is limited. Section 3553(b) states: “In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” The Sentencing Commission ordinarily identifies its policy statements and official commentary as such, but has not so identified its special report on craek cocaine. Documents such as the report on crack cocaine still may be relevant to judicial determinations under § 3553(b). Like any other evidence, such reports may point out a factor that courts should examine as a possible mitigating or aggravating circumstance. Such reports may also contain information against which a court may measure the adequacy of the Commission’s consideration of a factor. In the end, however, a court trying to decide whether and to what extent the Sentencing Commission did in fact consider an alleged mitigating or aggravating factor may rely for the answer to that question on the guidelines, policy statements, and official commentary only.
Hogan argues that the Commission failed to consider several mitigating factors present in his case. His offense, he asserts, did not involve violence, juveniles, large quantities of cocaine, or proximity to schools. As is clear from the materials that Congress has instructed courts to consult to determine whether the Commission adequately considered these factors, the Commission based sentences in part on the quantities of cocaine involved in an offense and identified violence, weapon use, and involvement of juveniles as circumstances justifying sentences higher than the base offense level sentences. Specifically, the Commission authorized upward adjustments for causing injury or death, U.S.S.G. § 5K2.1, p.s.; § 5K2.2, p.s.; for possession or use of weapons, § 2Dl.l(b)(l); § 5K2.6, p.s.; for leadership in criminal activity, § 3B1.1; and for involvement of juveniles or drug sales near protected locations, § 2D1.2. The guidelines and policy statements thus demonstrate that the Commission predicated the base offense levels on the absence of these factors. Accordingly, the Commission did consider the kinds of circumstances that Hogan identifies and determined that the base offense level was appropriate under such circumstances. Hogan has not demonstrated that the Commission’s consideration of these types of circumstances was inadequate. Although Hogan suggests that in setting the base offense levels for craek cocaine the Commission relied on assumptions about higher rates of violence and other evils associated with crack cocaine, he has not pointed to anything in the sentencing guidelines, policy statements, or official commentary to support this claim.
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From the appellants’ perspectives, their sentences undoubtedly seem unfair. After all, the Sentencing Commission has essentially conceded that their prison terms are unjustifiably high in comparison to the prison terms of similarly situated powder cocaine defendants. But neither appellant has questioned the power of Congress or of the Sentencing Commission to establish the sentencing ranges that currently exist for crack cocaine offenses. The question before us, therefore, is whether district courts possess legal authority to depart downward in sentencing defendants charged with crack cocaine offenses on the ground that the Sentencing Commission failed adequately to consider certain information indicating that the existing differences in sentences for powder cocaine and crack cocaine offenses are unwarranted. Unfortunately for defen
As Judge Williams explains, Anderson and Hogan may yet find relief. Congress has instructed the Sentencing Commission to “propose revision of the drug quantity ratio of crack cocaine to powder cocaine under the relevant statutes and guidelines in a manner consistent with the ratios set for other drugs and consistent with the objectives set forth in [28 U.S.C. § 3553(a) Pub.L. No. 104-38, 109 Stat. 334, § 2(a)(2) (1995). If the sentencing range for crack cocaine offenses were in fact lowered,' district courts would have authority under 18 U.S.C. § 3582(e)(2) to reduce the sentences of defendants already serving prison terms “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Absent such a development, however, we must affirm the appellants’ sentences.
Dissenting Opinion
dissenting:
Appellants Oscar Anderson and Samuel Hogan asked the district court to grant a downward departure under § 5K2.0 of the Sentencing Guidelines
In ruling that the policy statement on atypicality prohibited the district court from granting appellants a § 5K2.0 departure,
The majority’s .analysis of this case is flawed because it stops short of asking the critical question: whether these cases fit into that very narrow category of circumstances where a policy statement or official commentary is not binding upon a sentencing court because it violates constitutional or statutory dictates.
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed' educational or vocational training, medical care, or other correctional treatment in the most effective maimer.
18 U.S.C. § 3553(a)(2). Although the Commission does not expressly provide a specific vehicle for weighing these purposes in the sentencing process it outlines, see, e.g., Kenneth R. Feinberg, The Federal Guidelines and the Underlying Purposes of Sentencing, 3 Fed.Sent.R, 326 (1991), it is clear from the legislative history of this provision that Congress took the four purposes set out in the law seriously, and intended sentencing courts to do so as well.
The nub of the problem here, of course, is that the Special Report is a startlingly forthright admission by the Sentencing Commission that its crack guidelines violate § 3553(a)’s instructions that a court impose a sentence “sufficient, but not greater than necessary” to “reflect the seriousness of the offense” and “provide just punishment.” In the Special Report, the Commission stated, inter alia, that there was “sparse empirical evidence” supporting the proposition that crack was 100 times more dangerous to society than cocaine. Special Report at 195. The Commission further stated that contrary to Congress’ intent to punish offenders in proportion to the quantity of drug sold, the 100:1 ratio resulted in higher penalties for street dealers, who are more likely to possess the drug in its crack form, than for suppliers, who are more likely to have larger amounts of the drug, but in its cocaine form: “Issues of ‘fairness’ or ‘just punishment’ — not to mention frustration of some congressional objectives — result when relatively low-level crack retailers receive higher sentences than the wholesale-level cocaine dealer from whom the crack sellers originally purchased the powder to make the crack.” Id. at 193. In summary, the Commission concluded that
[E]ven while agreeing that crack may be more harmful than powder cocaine,.... the Commission firmly concludes that it cannot recommend a ratio differential as great as the current 100-to-l quantity ratio. Several factors lead the Commission to [this] conclusion_ First, when Congress established the quantity ratio in 1986, there were no sentencing guidelines; rather, the guidelines took effect in 1987 and were not fully implemented until 1989. Accordingly, Congress had only the possibility of an enhanced ratio to look to in capturing, in a sentencing structure, the additional harms that legislators felt inhered in crack cocaine. Therefore, to the extent that the guidelines now provide a punishment for some of those same factors subsumed in the ratio, those factors generate an enhancement both through an increased ratio differential and through guideline adjustments.... Accordingly, if Congress believed that certain factors [such as carrying a gun or prior criminal activity] warranted a 100-to-l quantity ratio and if the subsequently adopted guidelines provided a punishment for some of those factors, then, as a logical matter, the ratio should be lowered by an amount commensurate with the extent to which these factors are addressed by the guidelines .... Another central basis for the Commission’s rejection of this ratio is the extreme anomalies in sentencing produced by such a high differential in penalties between two easily convertible forms of the same drug.... Similarly, although evidence suggests that the trafficking and use of crack cocaine have engendered more violence associated with marketing the drug than has powder cocaine, the evidence does not indicate that the increased level of violence and crime justifies a ratio as large as 100-to-l.
Id. at 196-97. Additionally, in the Commentary accompanying a proposed amendment which the Commission submitted to Congress that would have eliminated the sentencing disparity, the Commission stated that
[S]ufficient policy bases for the current penalty differential do not exist. Instead of differential treatment of crack and powder cocaine defendants based solely on the form of the drug involved in the offense, the Commission concluded that fairer sentencing would result from guideline enhancements that are targeted to the particular harms that are associated with some, but not all, crack cocaine offenses. Harm-specific guideline enhancements will better punish the most culpable offenders and protect the public from the most dangerous offenders, while avoiding blanket in*449 creases for all offenders involved with the crack form of cocaine.
60 Fed.Reg. 25,074, 25,076 (1995).
These acknowledgments by the Commission itself — that crack sentences raise “[tissues of ‘fairness’ or ‘just punishment’” because they punish less culpable crack dealers far more severely than more culpable cocaine dealers and suppliers, and that no policy basis for the present 100:1 sentencing differential exists — make it impossible to square the crack guidelines with the sentencing purposes of § 3553(a).
Several courts have already followed a similar course in parallel situations, setting aside commentary or policy statements as inconsistent with the Constitution, federal statutes, or the guideline provisions to which they refer. See, e.g., United States v. Stevens, 66 F.3d 431, 434-36 (2d Cir.1995) (declining to follow commentary to U.S.S.G. § 2J1.7, which requires sentence enhancement for persons who commit an offense while on release from prison, on the grounds that the commentary is inconsistent with the underlying guideline and statutory provision); United States v. Powell, 6 F.3d 611, 613-14 (9th Cir.1993) (courts must ignore commentary to U.S.S.G. § 3A1.2 in situations where the underlying crime is felon in possession of a firearm, because in such circumstances the commentary and guideline.are inconsistent); United States v. Lamb, 6 F.3d 415, 420 (7th Cir.1993) (court not bound by commentary to U.S.S.G. § 3B1.3, “abuse of public trust” guideline, because it conflicts with guideline itself). One of our Third Circuit colleagues has gone even farther, suggesting that the statutory directive to impose a sentence “sufficient, but not greater than necessary” to meet the sentencing purposes set forth in § 3553(a) may even override the trial court’s otherwise unfettered discretion in deciding whether to grant a-, departure,
Naturally, I do not suggest that a court should be permitted to depart whenever it decides that a sentence is greater than necessary to satisfy the purposes set forth in § 3553(a). Such a result would gravely undermine one of the central goals of the guidelines — restricting the discretion accorded sentencing judges, in the interests of eliminating unwarranted disparity in sentences. But this case is sui generis in the history of the guidelines. Here, the Commission itself has acknowledged that its crack guidelines bear no meaningful relationship to the culpa
Imposing a criminal sanction on defendants is a grave matter — perhaps the most serious act in our judicial system, which appropriately surrounds it with a wide array of procedural protectiotis. Yet, ironically, if this were a run-of-the-mill administrative law case, I predict that we would not hesitate for a moment to vacate an agency’s legislative rule, if the agency itself admitted that the rule was arbitrary, capricious, unfair, and violative of a federal statute, and then documented that admission with credible evidence. Defendants like appellants Anderson and Hogan, faced with inordinately lengthy terms in prison, should be treated similarly. Although we must give heed to Congress’ goal of eliminating sentencing disparities in interpreting the Sentencing Reform Act, it seems to me the ultimate triumph of form over substance to base prison sentences on guidelines which have now been repudiated as irrational by the authors of those guidelines themselves. I would therefore find there is authority on the part of a district court to depart from the current guidelines governing crack cocaine offenses.
. Section 5K2.0 authorizes departures if "the court finds that an aggravating or mitigating circumstance exists that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines and that should result in a sentence different from that described.” U.S.Sentencing Guidelines ("U.S.S.G.") § 5K2.0 (quoting 18 U.S.C. § 3553(b)).
. Judge Williams offers several other reasons for affirming the district court’s determinations in both appellants’ cases that it lacked authority to grant a § 5K2.0 departure. See Majority opinion ("Maj. op.”) at 438-42. Because Judge Tatel’s concurrence identifies the atypicality requirement as the fatal flaw in appellants’ departure requests, see Tatel, J., concurring in part and concurring in the judgment, at 442, I take this point to. be the grounds upon which a majority of this panel agrees the district court should be affirmed.
. I do not disagree with the majority's conclusion that appellants’ requests for departure fail the atypicality test. As compared with circumstances present in other crack offenses, the circumstances for which appellants seek departure are typical; the conclusions of the Special Report will apply as réadily to the majority of crack cases as to the two cases before us. Appellants’ arguments to the contrary are not availing. They claim that while the findings of the Special Report may be a circumstance common to all crack cases, they are not common to all federal drug offenses, which obviously include drugs other than crack. See Anderson Reply Br. at 6. This characterization inevitably raises the question, "iypical, as compared to what?” The answer implicit in the majority's opinion seems the right one: typical, as compared to other similar offenses. Since each type of controlled substance listed in the guidelines presents fairly unique risks of harm to the user and the surrounding community, the relevant group of similar offenses for determining the lypicality of a circumstance is possession or sale of the same controlled substance which the defendant possessed or sold, not possession or sale of all controlled substances. Appellants’ stated grounds for departure are typical, then, because they are common to all crack offenses, even if not to all federal drug offenses.
. As my colleague Judge Tatel points out, § 3553(a)’s mandate to sentencing courts cannot be read in isolation from § 3553(a)(4), which instructs courts to consider the applicable guidelines range as one of the factors in determining sentence, as well as § 3553(b), which states that a sentencing court "shall impose a sentence ... within the [guidelines] range," unless it finds an aggravating or mitigating circumstance warranting departure. See Tatel, J., concurring, at 443-44. Judge Tatel would interpret § 3553(b) as governing the question of whether a court must sentence within the applicable guidelines range, and § 3553(a) as relevant only to the question of where within that range the sentence should be. Id. I see the intended interplay between these two provisions differently. Although a sentencing court should consider the factors set forth in § 3553(a) in determining where within the guidelines range a sentence should fall, those factors are also relevant to whether a departure under § 3553(b) is warranted in the first place. See United States v. Clark, 8 F.3d 839, 842 (D.C.Cir.1993) ("To qualify as ‘mitigating’ a circumstance must be linked to one of the stated purposes of sentencing, i.e., just punishment, adequate deterrence, public protection, or rehabilitation.” (citing § 3553(a)(2) and United States v. Mason, 966 F.2d 1488, 1494-97 (D.C.Cir.), cert. denied, 506 U.S. 1040, 113 S.Ct. 829, 121 L.Ed.2d 699 (1992))). And just as with any other statutory provision, § 3553(a) is also relevant in deciding if application of a particular guideline, policy statement, or official commentary of the Commission — here, the policy statement on "atypicality” — is inappropriate because it would violate the Constitution or a federal statute.
. In its section-by-section analysis of amendments to the Sentencing Reform Act, the House set forth its understanding of § 3553(a):
Section 3553(a) as enacted by the Sentencing Reform Act of 1984 requires that the court (1) consider several factors, including the purposes of sentencing, and (2) “impose a sentence sufficient, but not greater than necessary, to comply with” the purposes of sentencing. Thus, if the court finds that the sentence called for is greater than necessary to comply with the purposes of sentencing, section 3553(a) would seem to require the court to impose a more lenient sentence.
Such an interpretation, it might be argued, is inconsistent with the Sentencing Reform Act’s intention to limit judicial discretion in sentencing. That argument, however, is not convincing. The Sentencing Reform Act of 1984 limited, but did not eliminate, judicial sentencing discretion. Section 3553(a) does not give the court unlimited discretion in sentencing, but rather authorizes the court to depart from the guidelines only if the court finds that the sentence called for by the guidelines is greater than necessary to serve the purposes of sentencing.
133 Cong.Rec. 31947 (Nov. 16, 1987). In fact, the House analysis of .§ 3553(a) goes even farther, suggesting that it may provide independent grounds for departure. Id. For additional remarks contemporaneous with passage of § 3553(a), see S.Rep. No. 225, 98th Cong., 1st Sess. 52 ("The bill requires the judge, before imposing sentence, to consider the history and -characteristics of the offender, the nature and circumstances of the offense, and the purposes of sentencing. He is then to determine which sentencing guidelines and policy statements [and mitigating circumstances] apply to the case.”); 68 ("each of the four stated purposes should be considered in imposing sentence in a particular case”); 75 (same); 77 ("The intent of subsection (a)(2) is ... to require that the judge consider what impact, if any, each particular purpose should have on the sentence in each case”) (1983), reprinted in 1983 U.S.C.C.A.N. 3182.
. Judge Williams maintains that if this conclusion is correct, then Congress sent "rather contradictory signals” by enacting both mandatory mínimums with a ratio of 100:1, and a standard for evaluating sentences (§ 3553(a)) which that very ratio arguably violates — implying that such a construction of § 3553(a) cannot possibly be correct. That argument ignores the chronology of these events. Congress enacted both §'3553(a) and the mandatory mínimums before the research data which informed the Commission’s findings in its Special Report became available. Although that research might indicate that the mandatory mínimums, as passed by Congress, violate another statutory directive — the sentencing instructions contained in § 3553(a)— the two provisions were not in conflict at the time of enactment. The fact that Congress passed mandatory mínimums, then, has no bearing on whether it intended § 3553(a) to operate as a substantive sentencing standard.
. A district court’s exercise of its discretion to deny departure is unreviewable unless the record indicates that the judge mistakenly thought she lacked authority to grant a departure. United States v. Foster, 988 F.2d 206, 208 (D.C.Cir.) (citations omitted), cert. denied, 508 U.S. 945, 113 S.Ct. 2431, 124 L.Ed.2d 651 (1993).
. Judge Williams claims that a report authored and submitted to Congress by the Commission stands on exactly the same footing as “a report by a learned society.” Maj. op. at 440. My colleague’s position on this issue, quite frankly, makes no sense to me. Although it is true that a court may consider only the guidelines themselves, policy statements, and commentary in determining to what extent the Commission has "adequately considered” a circumstance, see § 3553(b), this provision certainly was not meant to bar judicial consideration of other statements by the Commission for purposes of identifying whether there were significant circumstances the Commission should have hut did not consider. Cf. Tatel, J., concurring, at 443-44 (“such reports may point out a factor that courts should examine as a possible mitigating or aggravating circumstance”). That is, the courts may look to Commission statements other than those listed in § 3553(b) to ascertain what circumstances are relevant to formulation of a guideline, but then must confine its inquiry to the § 3553(b) sources when determining the adequacy with which the Commission considered those circumstances. One would think such consideration would be mandatory, not prohibited; surely the Commission as a data collection body must have significant expertise concerning the impact of its own guidelines, more so than an outside organization. In any event, this rule (whatever its proper construction) places no constraints on the use of other statements by the Commission for the purpose of determining whether a sentence would plainly violate § 3553(a), and thus is inapposite here.