dissenting.
In this downward departure sentencing appeal, our Court has reversed Chief District Judge Wiseman’s sentence of probation for two defendants who are first offenders. I disagree with our Court’s decision for five reasons: First, our decision admonishes district courts against considering and departing downward on the basis of atypical combinations of sentencing facts favorable to defendants, facts that most judges would consider highly relevant for any reasonable sentencing determination. Second, the decision assumes, without any factual basis and contrary to the Sentencing Commission’s own statements to the contrary, that the Commission took these factors and nuances into account in devising the Guidelines. Third, the decision does not follow the deferential standard of appellate review established in plain statutory language by Congress for such cases. Fourth, the decision ignores the clearly stated congressional policy favoring probation for first offenders in such cases. Fifth, the decision will make judicial administration in guidelines cases at the trial and appellate levels more difficult.
In this bank embezzlement case, the convictions are first offenses by two young women with previously untainted records and reputations. The amount of money taken was relatively small and was promptly returned. The two young women, who have small children at home to be raised and nurtured, came forward and voluntarily disclosed their wrongs to their employ*512ers before anyone discovered their culpability. Their employers, believing that the crimes were not sufficiently serious to justify incarceration, asked the District Court to place the two women on probation.
I.
In devising a fair sentencing system, there is something worse than small disparities in sentences — mechanistic rules that impose unjust or arbitrary punishment because they preclude the sentencing judge from considering all relevant factors and nuances in the case. Unfortunately, our Court in this case has misinterpreted the Guidelines. In departure cases, it has put the sentencing judge in a stait jacket that does not allow him to take into account all the facts relevant to sentencing. The Court allows the District Court to consider only the limited group of sentencing facts explicitly recognized in the guidelines. I agree that these general facts are relevant. Other facts, however — facts favorable to the defendants — are equally relevant to sentencing and have been universally considered by judges and jurors for hundreds of years. Today, our Court proscribes the consideration of these mitigating facts, either in isolation or in combination.
Why, for example, should we say now for the first time that the fact that the defendant is a young mother who must raise several small children is no longer relevant to her sentence? Why should it be irrelevant that the victim of the crime believes that the crime is not of sufficient seriousness to deserve imprisoning the defendant? Why should it be irrelevant that the defendant came forward and admitted the crime before her culpability was discovered? Such facts, alone and in combination, have heretofore been considered highly relevant by sentencing judges and jurors.
I can find nothing in the Guidelines or its commentary that even suggests that these sentencing facts have been taken into account in devising the Guidelines. The Guidelines omit any consideration of defendant’s responsibility to raise young children as it affects a sentencing determination. The Guidelines and the commentary also fail to consider the case in which the victim views the crime as not sufficiently serious to justify imprisoning the defendant. Furthermore, the Guidelines do not contemplate a defendant who comes forward to confess and offers restitution before the defendant’s culpability is discovered. These are precisely the facts found, and considered, by Judge Wiseman. All are clearly relevant sentencing facts which the Guidelines do not mention. Surely when such a combination of mitigating facts appear, the sentencing judge should be permitted to take them into account in meting out the sentence. Our Court clearly errs when it prevents Judge Wiseman from altering a sentence based on such mitigating facts.
II.
The Sentencing Commission recognized that it could not adequately consider all factors, either singly or in combination, in order to devise a mechanistic grid system for sentencing. The Commission plainly stated:
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_ The Commission does not intend to limit the kinds of factors (whether or not mentioned anywhere else in the guidelines) that could constitute grounds for departure in an unusual case.
United States Sentencing Commission, Guidelines Manual, 4(b), Policy Statement (Nov.1989) (emphasis added).
The Commission then explains the reasoning behind this liberal departure policy:
The Commission has adopted this departure policy for two basic reasons. First is the difficulty of foreseeing and capturing a single set of guidelines that encompasses the vast range of human conduct *513potentially relevant to a sentencing decision. The Commission also recognizes that in the initial set of guidelines it need not do so. The Commission is a permanent body, empowered by law to write and rewrite guidelines, with progressive changes, over many years. By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so, the Commission, over time, will be able to create more accurate guidelines that specify precisely where departures should and should not be permitted.
Ibid. Although the Sentencing Commission has acknowledged that it was unable to take into account facts such as the ones presented in this case, either in isolation or in combination, our Court insists, without any evidence, that the Commission has in fact adequately considered this unusual combination of facts favorable to these defendants. I do not understand why our Court ignores the Commission’s own statement that it has not taken such matters into account. More specifically, why refuse to allow the district courts in our circuit to take into consideration the full panoply of relevant sentencing facts? By today’s decision, this Court has turned “guidelines” into mechanistic “rules” which will create serious injustice in many cases in the future. Currently, in the Sixth Circuit, the Guidelines are a prescription for injustice because district judges can no longer prevent the imposition of inappropriately harsh sentences on the basis of sentencing facts favorable to defendants — a prescription for injustice that the Commission tried to correct by creating a liberal departure policy.
III.
In devising a standard of appellate review for the Courts of Appeals, Congress said:
The court of appeals shall give the 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.
18 U.S.C. § 3742(e) (emphasis added). This standard is the one which we apply in similar settings when questions of the relevancy of facts are at issue. See, e.g., In re Beverly Hills Fire Litigation, 695 F.2d 207 (6th Cir.1982), cert. denied, 461 U.S. 929, 103 S.Ct. 2090, 77 L.Ed.2d 300 (1983); Drayton v. Jiffee Chem. Corp., 591 F.2d 352 (6th Cir.1978); 10 Moore’s Federal Practice § 401.03[6] (1988) (district court has broad discretion in applying concepts of relevancy and materiality, and its ruling should not be disturbed absent abuse of discretion). Our Court clearly has failed to give “due deference” to the District Court. By its own statement, it acknowledges that it has made a “de novo review” of the lower court’s sentencing conclusions as though it were reviewing a pure question of law. (Maj. Op. at 507.) Our Court, therefore, has given absolutely no deference to the District Court’s “application of the guidelines to the facts.” I believe that the “due deference” language of the statute creates a broad “abuse of discretion” standard in sentencing cases. I therefore disagree with the Court’s “de novo” or “no deference” standard of review, a standard reserved for pure questions of law. This standard contravenes the plain language of the statute authorizing appellate review and historic principles of sentencing.
For the past 200 years in the United States, there has been no appellate review of the length of sentences imposed by district judges so long as the sentence imposed fell within the statutorily authorized range. For this reason, appellate courts have not developed a coherent set of sentencing principles or policies on which to rely in reviewing sentences. Neither Congress, in the new sentencing legislation, the Sentencing Commission, nor the scholarly community has supplied any such set of principles to aid appellate courts. So far as I can determine, no such principles exist. We are flying blind in this area with no instruments for navigation. Given this situation, the most appropriate role for our Court is to give the district courts wide discretion and then review their work with *514“due deference” under an “abuse of discretion” standard.
In addition, we must recognize that appellate courts are remote from the setting in which district judges make sentencing decisions. We do not see or hear the witnesses or the defendant. We are removed from the emotional appeal in the case and removed from the pain and suffering that inappropriately harsh sentences can impose on a defendant. We do not see clearly the nuances of the case that are favorable to the defendant. We see only the crime in its generalized aspect. We do not see real people in their struggle to live, only abstract people — “plaintiffs” and “defendants,” “appellants” and “appellees,” “petitioners” and “respondents.”
For these reasons, in addition to the time constraints in which we operate, I have little confidence that the decisions of appellate courts, on the basis of intricate combinations of sentencing facts developed by district judges, are likely to be wise decisions. I therefore would give great deference to the sentencing decisions of district courts.
IV.
Congress clearly provided that the Sentencing Commission and judges should not impose a sentence of “imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense.” 28 U.S.C. § 994(j) (Supp.1989).1 In this case the District Court and the victim of the crime both agree that the crime is not sufficiently “serious” to justify imprisonment. I would give “due deference” to the District Court’s conclusion, based on a consideration of the full panoply of facts before it, that this first offense is not sufficiently “serious” to justify imprisonment. I would affirm Judge Wiseman's sentence in this case because of (1) the acknowledged failure of the Sentencing Commission to take into account all of the relevant facts of this case, (2) the plain statutory language requiring “due deference” to the District Court’s sentencing conclusions, and (3) the statutory language allowing “imprisonment for a first offense” only upon a finding that the offense is “serious.”
V.
Finally, purely a matter of judicial administration, I believe our Court’s decision in this case, establishing a “de novo” rather than a “due deference” standard of review in guideline application cases, will lead to many more appeals, less certainty and finality, and more disparity as appellate judges impose on district judges their own various and conflicting sentencing views. An already overworked federal appellate judiciary is now being inundated with sentencing cases. The number of criminal appeals has doubled and, in some courts, tripled since the effective date of the Guidelines. From an efficiency standpoint, the best thing for the federal judicial system as a whole is for appellate judges to affirm district judges in atypical sentencing departure cases unless the sentence is clearly outside the range of reasonableness.
Today’s decision, if allowed to stand, creates an inflexible sentencing system which is not in anyone’s interest except perhaps prosecutors, who by their charging decisions, will effectively establish the sentence.2 As a former federal prosecutor, I *515know that such a rigid system of sentencing can only end in failure because it gives one side in the competitive process too much power. A flexible system is best, one that relies upon an impartial judge intimately familiar with the facts of the case. We should not turn the “guidelines” intended by Congress into mechanistic rules by eliminating the liberal departure policy established by the Sentencing Commission.
. This section provides:
(j) The Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense, and the general appropriateness of imposing a term of imprisonment on a person convicted of a crime of violence that results in serious bodily injury.
. A trend toward deferring to the prosecutor’s judgment is rapidly being established in our Circuit. A review of sentencing departure cases in the Sixth Circuit shows a clear pattern that the prosecutor always wins. See, e.g., United States v. Pitman, 888 F.2d 128 (6th Cir.1989) (table reference to unpublished decision) (full text available on Westlaw); United States v. Barnett, 887 F.2d 1088 (6th Cir.1989) (table reference to unpublished decision) (full text available on Westlaw); United States v. Joan, 883 F.2d 491 (6th Cir.1989); United States v. Seltzer, *515881 F.2d 1077 (6th Cir. 1989) (table reference to unpublished decision) (full text available on Westlaw). But see United States v. Edwards, 883 F.2d 76 (6th Cir. 1989) (table reference to unpublished decision) (full text available on Westlaw) (upward departure held to be unwarranted).