United States v. Jose Jesus Lira-Barraza

CYNTHIA HOLCOMB HALL, Circuit Judge,

concurring in part and concurring in the judgment:

I concur in the majority’s decision that we should review departures from the guidelines in three steps rather than five. Majority at 745-46. I also concur in the judgment. I write separately, however, because the majority opinion fails to provide clear guidance to the district courts and *754because I disagree with the majority that Congress and the Sentencing Commission intended to limit a sentencing court’s discretion in selecting a sentence outside an applicable guideline range.

I

The majority holds that “departure sentences are to be determined in light of the structure, standards and policies of the Act and Guidelines.” Majority at 750-51. The majority neither defines this “standard” nor tells the district courts how it is to be applied.

Although the majority’s holding might be read as nothing more than a general requirement that a departing court must look to the Sentencing Reform Act and the Sentencing Guidelines for guidance in formulating an appropriate sentence, other parts of the opinion suggest a far more rigid requirement. We are told that “[t]he essential factor” in a district court’s departure decision “is that the extent of departure must be based upon objective criteria drawn from the Sentencing Reform Act and the Guidelines.” Id. at 750 n. 13. Elsewhere the majority suggests that what it means by “objective criteria” is that a district court may not impose a departure sentence unless that sentence is “consistent with [i.e., not disparate to] other sentences fixed by the Guidelines or suggested by Commission standards and policies.” Id. at 749.

While I believe, because of the majority’s analysis of the Sentencing Reform Act, that this last statement comprises the majority’s implicit holding, at no point does the majority state clearly the standard it has adopted.1 I find it remarkable that in an opinion long anticipated to provide clear guidance to the district courts, the majority utterly fails to do so.2

II

Nothing in the Sentencing Reform Act or the Sentencing Guidelines supports the majority’s assertion that Congress intended to limit the discretion of the district court in selecting a sentence outside the guidelines.

A

The only portion of the Act on which the majority directly relies to support its holding is 18 U.S.C. § 3553(a)(6). That section provides that a sentencing court, in determining the particular sentence to be imposed, “shall consider” a range of factors, among them

the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct....

18 U.S.C. § 3553(a)(6) (1988).

According to the majority, subsection (a)(6) is a “statutory directive [which] ap*755plies to all sentences, including those departing from the Guideline range applicable to a particular offense, and requires, at a minimum, that departure sentences be consistent with other sentences fixed by the Guidelines or suggested by Commission standards and policies.” Majority at 749.

In making that assertion, the majority collapses the standard governing whether a district court should depart from the applicable guideline range into the separate question of the degree of departure from that range. In doing so, it creates a rigid sentencing requirement that was never intended by Congress and which is inherently unworkable.

The clearest evidence of the overall sentencing scheme Congress had in mind when it passed the Sentencing Reform Act is the language it used to describe the purpose of the Sentencing Guidelines.

[To] provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct 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) (1988).

Congress clearly did not intend, as the majority suggests, to require proportionality in all sentences. Rather, it devised a sentencing scheme which reduced sentencing disparity through application of the guidelines, while preserving the district court’s discretion to impose “individualized sentences” outside the guidelines when warranted. See S.Rep. No. 225, 98th Cong., 1st Sess. 52, reprinted, in 1984 U.S. Code Cong. & Admin.News 3182, 3235 [hereinafter Senate Report] (“The purpose of the sentencing guidelines is to provide a structure for evaluating the fairness and appropriateness of the sentence for an individual offender, not to eliminate the thoughtful imposition of individualized sentences.”).

This overall sentencing scheme is reflected in §§ 3553(a) and 3553(b), the sections of the Act which establish the procedures a district court must follow in imposing a sentence. The court must consider the entire range of factors set out in § 3553(a),3 not just subsection (a)(6), as the majority suggests. It must either impose a sentence within the applicable guideline range or sentence outside that range if it finds “an aggravating or mitigating circumstance” not taken into consideration by the Sentencing Commission in formulating the guidelines. 18 U.S.C. § 3553(b).

Because the language of subsection (a)(6) tracks the language of § 991(b)(1)(B), Congress, in requiring sentencing courts to consider the need to avoid “unwarranted sentencing disparity” under subsection (a)(6), was referring only to the court’s decision whether or not to sentence within the guideline-specified range. That is, because the guidelines represent categories of offense behavior based on sentencing data about “defendants with similar records who have been found guilty of similar conduct,” 28 U.S.C. § 991(b)(1)(B), the district court, in “determining the particular sentence to be imposed” under § 3553(a), would look to subsection (a)(6) only in deciding whether or not the presence of an aggravating or mitigating circumstance made the offense so atypical as *756to warrant sentencing outside the guideline range.4

To read subsection (a)(6) as requiring a district court to impose a departure sentence that is “consistent with other sentences fixed by the Guidelines or suggested by Commission standards and policies,” Majority at 749, is contrary to the sentencing system envisioned by Congress. When the guidelines fail to account for an aggravating or mitigating circumstance, Congress anticipated that the district court would retain the discretion to impose an “individualized sentence” outside the range specified in the applicable guideline. 28 U.S.C. § 991(b)(1)(B). In codifying that departure power in § 3553(b) Congress nowhere indicated that the district court’s discretion to impose a departure sentence was to be limited in the manner suggested by the majority.

More important, the language of subsection (a)(6) suggests that it cannot be read as the “statutory directive” the majority claims it to be. To do so would impose an unworkable, circular requirement on the district court that- would preclude departure in virtually all cases.

Subsection (a)(6) refers only to “defendants with similar records who have been found guilty of similar conduct” — i.e., to the applicable guideline range. 28 U.S.C. § 991(b)(1)(B). It therefore cannot be read to require a district court to impose a sentence that is consistent with a different guideline range. While other guidelines may encompass similar conduct, only the guideline-specific sentence reflects the congressional policy of reasonable uniformity in sentencing. If a departure sentence must be “consistent” with other sentences for “similar defendants with similar records,” by definition that will direct the court to the same guideline and to the same guideline-specified range. Thus, the district court could never depart from that range.

If, on the other hand, the degree of departure must be consistent with some guideline-specified sentence other than the one directed by the appropriate sentencing range, as the majority would require, then by definition no departure could be had. Section 3553(b) provides that a court may depart only if there is an aggravating or mitigating circumstance that was “not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b) (emphasis added). If the factor is reflected in some other guideline or policy statement, then the Sentencing Commission will reasonably have considered it and departure for that circumstance will not be allowed. Again, the district court would be unable to depart. Is this what the majority intends?5

*757B

That Congress never intended that all departures from the guidelines would be guided is evident from the Sentencing Guidelines. In implementing the sentencing structure Congress mandated in 28 U.S.C. § 991(b)(1)(B), the Sentencing Commission identified two types of departures based on offense characteristics. In one kind, the “guidelines provide specific guidance for departure by analogy or by other numerical or non-numerical suggestions.” U.S.S.G. Ch. 1, Pt. A 4(b), p.s., at 1.6. In all other cases, “departure will remain unguided.” Id. As the Commission explicitly recognized, when a departure is unguided, “[t]he controlling decision as to whether and to what extent departure is warranted can only be made by the [sentencing] courts.” Id. § 5K2.0, p.s., at 5.42 (emphasis added) (citing 18 U.S.C. § 3553(b)).

The Commission was careful to distinguish these offense characteristic departures from instances in which a defendant’s criminal history category fails adequately to reflect past criminal conduct. When departing on the basis of criminal history, the Commission’s policy statement explicitly requires that the court depart by incremental reference to criminal history categories: “In considering a departure under this provision, the Commission intends that the court use, as a reference, the guideline range for a defendant with a higher or lower criminal history category as applicable.” Id. § 4A1.3, p.s.

Clearly, the Commission knew what it was doing. Yet, despite the distinctions the Commission drew between “guided” and “unguided” offense characteristic departures and between those departures and criminal history departures, the majority concludes that all departures must be guided and that the approach used by the Commission in criminal history departures should be used for offense characteristic departures because “ ‘it makes sense to do so.’ ” Majority at 750 (citing United States v. Ferra, 900 F.2d 1057, 1062 (7th Cir.1990)).

The Commission plainly meant what it said, and the majority has pointed to nothing in the Sentencing Guidelines to suggest otherwise. It attempts to explain away the Commission’s express statement that some departures would remain “unguided” by arguing that the Commission intended an “unguided” departure to refer not to the degree of departure, but to whether departure may be had at all. The language used by the Commission to describe departures convincingly rebuts this claim. Had the Commission not intended “unguided” to refer to the degree of departure, it would not have referred to the sentencing court’s discretion to fix the “extent” of departure, U.S.S.G. § 5K2.0, nor would it have juxtaposed an “unguided” departure, id. Ch. 1, Pt. A4(b), with one that is guided by “analogy” or “numerical” suggestions, id.

Similarly, nothing in the Guidelines supports the majority’s assertion that “it *758makes sense” to treat criminal history and non-criminal history departures in a like manner. Criminal history categories are intended to reflect recidivism and the future likelihood of criminal behavior. U.S.S.G. Ch. 4, Pt. A, intro, comment. Because they perform this predictive function, see generally United States Sentencing Commission, Supplementary Report on the Initial Sentencing Guidelines and Policy Statements, Ch. 5, Pt. A (June 1987), and because the criminal history categories are carefully calibrated to increase punishment with recurrent criminal activity, id., departure by incremental analogy is logically required. Those aspects of the criminal history categories that make departure by analogy an inherent requirement are wholly absent in the guidelines for offense conduct. Unlike criminal history categories, the individual offense guidelines are not incremental, cross-referenced elements of an overall sentencing matrix. Each guideline sets a range of punishment for a particular crime, and nothing in the overall structure of the Sentencing Guidelines suggests that a departure from one guideline should somehow be linked to an entirely different guideline.

In short, the Commission made a number of policy choices in devising the sentencing scheme Congress required it to create. True to Congress’s commitment to “individualized sentencing,” 18 U.S.C. § 3553(b); 28 U.S.C. § 991(b)(1)(B), the Commission explicitly stated that some departures would be truly “unguided,” that is, fashioned without reference to the guidelines. Just as explicitly, the Commission stated that only criminal history departures should be “ratcheted up” by reference to the Guideline’s sentencing table. The majority can point to nothing in the Act or the Guidelines to justify its decision to substitute its judgment for that of Congress and the Sentencing Commission.

C

The only other statute upon which the majority relies is 18 U.S.C. § 3553(b). When a crime is not covered by an applicable guideline, section 3553(b) requires a sentencing judge to consider the structure of the Sentencing Guidelines and the Commission’s policy statements in determining a sentence. The statute does not impose a similar requirement when a guideline applies to a crime but the district court departs from the guideline-specified range because of the presence of an aggravating or mitigating circumstance.

Ignoring well-settled canons of statutory construction, the majority finds “no apparent reason why the courts should be required to link to the sentencing structure of the Act a sentence imposed for which there is no Guideline at all, but would be free to disregard the sentencing structure when there is a Guideline specifically applicable to the offense but an atypical aggravating circumstance is present.” Majority at 749.

“ ‘The short answer is that Congress did not write the statute that way.’ ” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983) (quoting United States v. Naftalin, 441 U.S. 768, 773, 99 S.Ct. 2077, 2081, 60 L.Ed.2d 624 (1979)). Where Congress includes particular language in one section of a statute but omits it elsewhere in the same statute, absent contrary legislative intent, “it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Id. The majority, however, points to nothing in the statute or its legislative history that entitles it to disregard Congress’s decision that departures based on aggravating or mitigating circumstances should be unguided.

Moreover, in second-guessing Congress, the majority ignores the reasons Congress gave for writing the statute as it did. Although the Sentencing Guidelines are intended to be a comprehensive system encompassing most federal crimes, Congress recognized that situations may arise in which no guideline applies to a particular crime — “where a new crime is enacted and a defendant is convicted of that crime before sentencing guidelines for the crime are established.” H.R.Rep. No. 797, 99th Cong., 2d Sess 19, reprinted in 1986 U.S.Code Cong. & Admin.News 6138, 6142. *759It therefore amended § 3553(b) after its original enactment to provide that under those circumstances the sentence imposed should be guided by reference to the Sentencing Guidelines. See Criminal Law and Procedure Technical Amendments Act of 1986, Pub.L. No. 99-646, § 9, 100 Stat. 3592, 3593. Requiring guidance when no guideline applies to a crime was consistent with the purpose of the Sentencing Reform Act. Because the Act contains a “comprehensive statement of the Federal law of sentencing,” Senate Report, supra, at 50, reprinted in 1984 U.S.Code Cong. & Admin.News at 3233, and because the Sentencing Guidelines are intended to assure the consistent application of that statement, id. at 51, reprinted in 1984 U.S.Code Cong. & AdmimNews at 3234, it would be contrary to the Act if a district court were allowed, in the absence of an applicable guideline, to sentence a defendant without any reference whatsoever to the Guidelines.

A different set of policy considerations is at work, however, when a court departs from an applicable guideline range because of the presence of an aggravating or mitigating circumstance. In drafting the Act, Congress anticipated that departures from an applicable guideline range were necessary “to permit individualized sentences when warranted.” 28 U.S.C. § 991(b)(1)(B). Those departures were, in Congress’s mind, an integral part of the Sentencing Commission’s “continuous reexamination of its guidelines and policy statements.” Senate Report, supra, at 80, reprinted in 1984 U.S.Code Cong. & Admin.News at 3263; see also id. at 52, 151, reprinted in 1984 U.S.Code Cong. & Admin.News at 3235, 3334. Because they are used by the Commission “to refine the guidelines to specify more precisely when departures should and should not be permitted,” see U.S.S.G. Ch. 1, Pt. A 4(b), p.s. at 1.6, departures are “essential to the future resiliency and health of the Guidelines,” Broderick & Wolf, The Guideline Amendment Process, 3 Fed.Sent.Rep. 276, 276 (1991).6 This is precisely what happened in this case. After a number of courts affirmed departures for high-speed chases, the Sentencing Commission amended the Guidelines to include a specific guideline for reckless endangerment during flight. See U.S.S.G. § 3C1.2. In short, the system worked as it was meant to.

D

Congress envisioned “limited” appellate review of departure sentences. Senate Report, supra, at 149, reprinted in 1984 U.S.Code Cong. & AdmimNews at 3332. It therefore imposed a reasonableness standard. “Reasonableness” is to be determined by assessing all the factors set out in § 3553(a) and the reasons given by the district court for selecting a sentence outside the guideline range. 18 U.S.C. § 3742(e)(3).

*760The majority, however, discards this standard. As defined by the majority, “reasonableness ... assumes a range of permissible sentences.” Majority at 751. The focus of that range, the majority elsewhere suggests, is on only one of the factors in § 3553(a): subsection (a)(6)’s requirement that the district court “avoid unwarranted disparities among defendants with similar records who are guilty of similar conduct.” Id. at 749. In effect then, the majority creates a per se rule that departure sentences which are not disparate to sentences imposed on “other defendants with similar records” are “reasonable” while those that are not are subject to reversal.

As noted above, the problem with this standard is that it is circular. There is no source of empirical data available to the district court about “defendants with similar records who are guilty of similar conduct”; that data is subsumed within the applicable guideline range. When a district court departs from that range because of an aggravating or mitigating circumstance, no other guideline can provide the data about “similar defendants” which the majority requires the district court to consider. To adopt a standard of appellate review which focuses almost exclusively on whether a departure sentence is not disparate to sentences imposed on “similar defendants,” as that term is defined in subsection (a)(6), is in effect, to preclude a district court from ever departing from the guidelines.7

The majority discards the broad reasonableness standard Congress intended because it concludes that it fails to facilitate “rational review” of departure sentences. Id. I cannot agree. Our use of a reasonableness standard in a wide range of other contexts has not diminished our ability to engage in rational appellate review. More important, Congress imposed a reasonableness standard, rather than a more searching standard of review, for a purpose. It intended to preserve the discretion of the district courts to impose an “individualized sentence[]” outside the guidelines range when appropriate. 28 U.S.C. § 991(b)(1)(B). Because disparity is inevitable in a sentencing scheme intended to preserve “individualized sentencing,” see Senate Report, supra, at 149, reprinted in 1984 U.S.Code Cong. & Admin.News at 3332 (“Because sentencing judges retain the flexibility to sentence outside the guidelines, it is inevitable that some of the sentences outside the guidelines will appear to be too severe or too lenient.”), a reasonableness standard is necessary to protect that discretion from overzealous appellate review, see id. at 150, reprinted in 1984 U.S.Code Cong. & Admin.News at 3333 (“The sentencing provisions of the reported bill are designed to preserve the concept that the discretion of a sentencing judge has a proper place in sentencing and should not be displaced by the discretion of an appellate court.”). The majority today imposes the very standard Congress has implicitly rejected.

Ill

Because Congress intended that sentencing judges would retain the discretion to sentence outside the guidelines, and because Congress in no way indicated that sentencing judges should be required to link their departure sentences to the “structure, standards and policies of the Act and Guidelines,” I cannot join in the majority opinion. As the First Circuit has observed in rejecting the formulaic approach adopted by the majority today,

Reasonableness is a concept, not a constant. The guidelines have cabined the district court’s sentencing discretion to a considerable extent, interposing a more structured sentencing regimen. Nevertheless, neither Congress nor the Commission contemplated doing away completely with individualized sentencing. Appreciating, as we do, the unaccus*761tomed limitations surrounding the district court’s discretion, we are reluctant to stifle the modest amount of play remaining in the joints.

United States v. Ocasio, 914 F.2d 330, 336 (1st Cir.1990) (citations omitted). Similarly, because Congress requires only that we review departures from the guidelines for “reasonableness,” I cannot join Chief Judge Wallace in concluding that we should review departures in light of the criteria identified by the majority. To do so would eventually compel the district courts to employ the formalistic decision-making the majority seeks to require in all departure decisions. Rather, I would adopt the position taken by the First Circuit and hold that

[wjhere valid grounds for departure are present, we will uphold the sentencing judge’s resolution of the matter so long as the circumstances warranting the departure and the departure’s direction and intent, are in reasonable balance.

Id. at 337 (citations omitted).

In conclusion, while both the majority and I direct the district court to provide a statement of reasons for the extent of its departure, I categorically reject any effort to require of a departing court more than reasonableness in its selection of a sentence outside the guideline range.

IV

While the district court provided an adequate statement of reasons for its decision to depart from the applicable guideline range, see United States v. Lira-Barraza, 897 F.2d 981, 986 n. 12 (9th Cir.1990), it imposed sentence without discussing how it arrived at the thirty-six-month term of imprisonment given the defendant.

Without an explanation of the degree of departure, we are unable to assess the reasonableness of the sentence selected by the district judge. A statement explaining the process by which the judge derived the sentence is essential in every departure, but is particularly important where, as here, the sentence imposed is several times over that suggested by the guideline range.

The sentence must be vacated and remanded for resentencing. I therefore concur in the judgment.

. That the majority itself is unclear about the standard it has promulgated is evident from its statement that, in adopting it, we “join the Second, Third, Fourth, Seventh, Tenth, and Eleventh Circuits.” Majority at 9039. Elsewhere in the opinion the majority encourages district courts to draw from the standards adopted by those circuits. Id. at 750 n. 13. Yet the circuits the majority purports to join have not adopted a uniform departure standard. Of the circuits cited by the majority, two expressly require departure by analogy, see United States v. Kim, 896 F.2d 678, 685 (2d Cir.1990); United States v. Ferra, 900 F.2d 1057, 1062-64 (7th Cir.1990), while two others strongly suggest that analogies to the structure of the Sentencing Guidelines should be used but do not require them, United States v. Kikumura, 918 F.2d 1084, 1112-13 (3d Cir.1990); United States v. Jackson, 921 F.2d 985, 990-91 (10th Cir.1990), while the other two simply express general agreement with the concept of using analogies but do not otherwise require district courts to employ them, United States v. Hummer, 916 F.2d 186, 194 & n. 7 (4th Cir.1990); United States v. Shuman, 902 F.2d 873, 876-77 (11th Cir.1990). Which of these standards has the majority adopted?

While I disagree with those circuits that have held that reliance on the Act or other "objective criteria” is required in departing from the guidelines, at least they have clearly stated what it is they mean. Cf. Ferra, 900 F.2d at 1062-64.

. Whatever the majority’s standard, it is clear that the district courts’ discretion to depart from an applicable guideline range has been impinged to a considerable degree. The implicit focus of the majority’s discussion is on upward departures. Yet the shackles the majority imposes on a district court’s discretion to depart upward from the guidelines will fit just as snug-gly when a district court attempts to depart downward from the range suggested by the guidelines. See United States v. Williams, 891 F.2d 962, 964 (1st Cir.1989).

. Section 3553(a) provides in part,

The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed [in light of the purposes Congress intended sentencing to serve];
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines....
(5) any pertinent policy statements issued by the Sentencing Commission....
(6) the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a) (1988) (emphasis added).

. That subsection (a)(6) was intended to apply only to a district court’s decision to sentence within the guidelines and not to the degree of its departure from them is suggested by the Act’s legislative history.

Subsection (a)(6) ... requires judges to avoid unwarranted sentencing disparities in applying the guidelines and particularly in deciding when it is desirable to sentence outside the guidelines.
If the sentencing court believed the case was an entirely typical one for the applicable guideline category, it would have no adequate justification for deviating from the recommended range. The need for consistency in sentences for similar offenders committing similar offenses should be sufficiently important to dissuade a judge from deviating from a clearly applicable guideline range.

Senate Report, supra, at 78-79, reprinted in 1984 U.S.Code Cong. & Admin.News at 3261-62 (emphasis added).

. Aside from these statutory obstacles to the majority's approach, it also is fraught with practical difficulties.

The majority assumes that there are analogous guidelines. While there may be other guidelines that have some similar attributes, they are likely to also contain significant differences. See United States v. Pearson, 911 F.2d 186, 190-91 (9th Cir.1990) (many cases may be sufficiently atypical so as to be "ill-suited to departure by analogy"). By telling the district court that it "must” link its departure decision to similar sentences and other “objective criteria,” Majority at 750 n. 13, the majority imposes a nearly insurmountable burden on a district judge faced with an “atypical” case.

How for example, should the district court in this case have identified “objective criteria” to guide it in imposing sentence? What guidelines possibly apply to an alien smuggler's high-speed chase on a public highway with persons locked in his trunk? Should the court look to the guideline for kidnapping, U.S.S.G. § 2A4.1, which provides a base offense level of 24, since *757the aliens locked in the trunk presumably did not expect to remain there while the defendant recklessly evaded law enforcement authorities? On the other hand there are significant factual dissimilarities: the aliens voluntarily placed themselves in the trunk and expected the driver to evade law enforcement. What then?

Should the court look to those crimes which have slightly higher base offense levels than Lira-Barraza’s offense level of 6 and make a judgment call as to which of these is most like the offense at hand? If so, the court would find, for example, § 2A1.4, Involuntary Manslaughter (base offense level of 10), § 2A3.3, Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts (9), § 2B4.1, Bribery in Procurement of Bank Loan and Other Commercial Bribery (8), § 2C1.2, Offering, Giving, Soliciting, or Receiving a Gratuity (7). Clearly this approach is likewise unworkable.

Even if the court does identify a guideline that contains superficial similarities, that supposedly "similar" guideline is based on empirical data and policy choices that have nothing whatsoever to do with the conduct of the defendant the judge must sentence. For example, § 2D2.3, the guideline which applies to the operation of a common carrier under the influence of drugs or alcohol, might provide a superficial similarity to Lira-Barraza’s conduct since it reflects in part the risk to passengers when a person operates a motor vehicle in an impaired and presumably reckless manner. But why should the district court’s discretionary decision to account for the risks that Lira-Barraza’s high-speed chase posed to his passengers and fellow travelers on the interstate be constrained by the policy considerations and sentencing practices derived from accidents involving drug- or alcohol-impaired common carrier drivers?

. The majority claims that the Commission will derive "more useful guidance” from guided departures than from those that are unguided. That, however, is a decision for the Commission, not this court, to make. In fact, the Commission has implied that its work in revising the guidelines is best served by actual sentencing practices. See United States Sentencing Commission, Supplementary Report on the Initial Sentencing Guidelines and Policy Statements Ch. 2 at 9 (June, 1987) (discussing the role of empirical sentencing data in, inter alia, future monitoring and evaluation of the guidelines).

It makes sense that the Commission should rely on actual, unguided sentences in making adjustments to the guidelines since the guidelines themselves are drawn initially from the actual discretionary sentencing practices of judges in the pre-guideline era. See id. Ch. 3, Pt. C, at 16 ("The Commission sought to resolve the practical problems of developing a coherent sentencing system by taking an empirical approach that starts from existing sentences.”); 28 U.S.C. § 994(m) (mandating that the Commission initially base the Sentencing Guidelines on average sentencing practices); Senate Report, supra, at 177, reprinted in 1984 U.S.Code Cong. & Admin.News at 3360.

That the Commission anticipated that departure sentences would be unguided — and that those departures would be closely monitored for future guideline revision — is evident from the comments of Commissioner llene Nagel:

"[T]he potential disparity introduced by excessive judicial "departures” from the guidelines will be closely monitored. Revisions will be made to correct intolerable levels of inappropriate departures.”

Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J.Crim.L. & Criminology 883, 939 (1990).

. Even if subsection (a)(6) were given a broader reading, by adopting an appellate standard which focuses narrowly on the presence or absence of a "similar" sentence the majority imposes a significant constraint on the discretion of the district court to depart from the guideline range. Absent a ready analogy, the district court may simply decline to depart rather than face the searching appellate review the majority authorizes.