concurring:
This case is an oddity. When district judges accept plea agreements specifying a particular sentence below the Guidelines range, we almost never review the cases on appeal — for two reasons. One, the government and the defendant can be expected to be happy with the disposition and to have no reason to appeal. Two, neither the government nor the defendant may, in general, appeal a sentence that falls within the bargained-for range.1 See 18 U.S.C. § 3742(c). Only the district court’s mistake in modifying and accepting Goodall’s plea agreement brings the question to our attention — the question, that is, whether a district judge may accept a Rule 11(e)(1)(C) plea agreement specifying a sentence below the range set forth in the Sentencing Guidelines.
This question cannot be answered without considering the Sentencing Reform Act, and specifically 18 U.S.C. § 3553(b). Because I believe that this provision requires more attention than the majority opinion gives it, I write separately.
The Sentencing Guidelines, as issued by the United States Sentencing Commission, are binding on the federal courts. See 18 U.S.C. § 3551(a); Stinson v. United States, 508 U.S. 36, 42, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993); Mistretta v. United States, 488 U.S. 361, 391, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The Supreme Court so held on the basis of 18 U.S.C. § 3553(b), which reads as follows:
The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) [“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.
18 U.S.C. § 3553(b) (emphasis added); see also Stinson, 508 U.S. at 42, 113 S.Ct. 1913. On the face of it, § 3553(b) precludes a district judge from imposing a sentence outside the Guidelines. Section 3553(b) does not instruct district courts merely to consult the Guidelines for guidance on guilty pleas. If it did, I could go *707along with the majority opinion’s exploration of ambiguities in the Guidelines. But the statute directs the district courts to sentence “within the range” for the “applicable category of offense” and the “applicable category of defendant.” 18 U.S.C. § 3558(a)(4) & (b). This language requires district courts to hand down the sentence specified for the defendant’s criminal history and the offense to which he pled guilty, regardless of Guidelines commentary on guilty pleas.
Section 3553(b)’s “shall-unless” logical structure specifies the sole occasion on which a district court may depart from the Guidelines — failure of the Commission to consider adequately an aggravating or mitigating circumstance. See, e.g., United States v. Adonis, 891 F.2d 300, 303 (D.C.Cir.1989). One might suppose that Goodall’s guilty plea constituted just such a mitigating circumstance. But we rejected that argument in United States v. Dukes, 936 F.2d 1281 (D.C.Cir.1991), a case, like this one, presenting the question whether a guilty plea is a circumstance the Commission adequately took into account. We held that a “guilty plea, whether entered pursuant to an agreement or not, does not qualify under 18 U.S.C. § 3553(b). It is a circumstance the Sentencing Commission did take into account,” for instance in the reduction for acceptance of responsibility. See 936 F.2d at 1282.
The Sentencing Commission’s policy statement governing plea agreements restates § 3553(b): “In the case of a plea agreement that includes a specific sentence [Rule 11(e)(1)(C)], the court may accept the agreement if the court is satisfied either that: (1) the agreed sentence is within the applicable guideline range [the ‘shall’ component of § 3553(b)]; or (2) the agreed sentence departs from the applicable guideline range for justifiable reasons [the ‘unless’ component of § 3553(b)].” USSG § 6B1.2(c), p.s. (Nov. 2000). Commentary interpreting this policy statement makes clear that justifiable reasons are only those “authorized by 18 U.S.C. § 3553(b).” USSG § 6B1.2 cmt.
Thus, 18 U.S.C. § 3553(b) and policy statement 6B1.2(c) forbid district judges to accept plea agreements specifying sentences below the Guidelines range. The Commission explained: “A defendant who enters a plea of guilty in a timely manner will enhance the likelihood of his receiving a reduction in offense level under § 3E1.1 (Acceptance of Responsibility). Further reduction in offense level (or sentence) due to a plea agreement will tend to undermine the sentencing guidelines.” USSG § 6B1.2 cmt. (emphasis added).
The majority opinion relies on introductory commentary relating to “the Commission’s ongoing study of courts’ plea agreement practices.” Maj. op. at 705. But Guidelines commentary can never justify ignoring the federal sentencing statute. Absent some contrary — and superior — authority, § 3553(b) requires the district courts to sentence plea defendants under the Guidelines. Cf. Stinson, 508 U.S. at 43, 45, 113 S.Ct. 1913.
If Guidelines commentary cannot supersede § 3553(b), what of Fed R. Crim. P. 11 (e)(1)(C)? This portion of Rule 11 permits the government and defendant to “agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement or sentencing factor is or is not applicable to the case.” Since the Rule permits the parties to agree that particular Guidelines provisions and factors are inapplicable, the parties can decide that a Guidelines sentencing range will not apply. On its face, then, Rule 11(e)(1)(C) conflicts with § 3553(b): the Rule allows the sort of below-the-guidelines bargain Goodall obtained here.2 Cf. United States v. Barnes, *70883 F.3d 934, 941 (7th Cir.1996); United States v. Gilchrist, 130 F.3d 1131, 1134 (3d Cir.1997); United States v. Aguilar, 884 F.Supp. 88, 91-92 (E.D.N.Y.1995).
Given the conflict, we must turn to the “supersession clause” in 28 U.S.C. § 2072(b): “all laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.” In other words, a federal rule supersedes a conflicting statute at the time the rule takes effect. The portion of Rule 11(e)(1)(C) dealing with the Guidelines was added in 1999. Congress last amended § 3553(b) in 1987. Under the supersession clause, the 1999 amendment to Rule lT(e)(l)(C) takes precedence.
Goodall entered his plea agreement in May 1999 and was sentenced the following July. The amendment to Rule 11(e)(1)(C) permitting his below-the-Guidelines bargain did not take effect until December 1, 1999. On remand, the district court should consider whether to accept or reject Goodall’s plea in accordance with the present version of the rule.
. Defendants have four statutory grounds to appeal a sentence. See 18 U.S.C. § 3742(a). Two of those grounds are foreclosed to defendants like Goodall who enter into plea agreements under Rule 11(e)(1)(C) and receive a sentence within the bargained-for range. See 18 U.S.C. § 3742(c)(1). Under 18 U.S.C. § 3742(a)(1), Goodall is still permitted to appeal a sentence “imposed in violation of law.” I agree with the majority that Goodall's sentence was illegal because the district judge accepted the plea agreement and then modified it. The judge's only choice was to accept or reject the bargain outright. See United States v. Ginyard, 215 F.3d 83, 87 (D.C.Cir.2000); United States v. Veri, 108 F.3d 1311, 1314-15 (10th Cir.1997).
. It is possible to read Rule 11(e)(1)(C) more narrowly so that the references to a specific guidelines range and the like merely entitle a defendant to embody in the plea agreement certain fundamental assumptions, thereby creating in him the power to withdraw from the plea if the district court does not employ those assumptions in sentencing. But I be-*708Heve that such a reading would be incorrect. Before its amendment in 1999, the rule already permitted the defendant to embody assumptions in the agreement that will bind the district court. See Fed.R.Crim.P. 11(e)(3) (“If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.”); 11(e)(4) ("If the court rejects the plea agreement, the court shall ... afford the defendant the opportunity to then withdraw the plea....”).