concurring in part and dissenting in part.
I agree with the majority’s analysis as to defendant Weaver and therefore concur in that portion of the majority’s opinion. However, I cannot agree with the majority’s position that defendants Barash and Nagi can be bound to an unquestionably unlawful sentence by virtue of a plea agreement. As I believe the lawful guideline range remains the lawful guideline range regardless of any agreement by the United States and the defendants to the contrary, I dissent.
In this case, all the parties, including the district court, were under the mistaken impression that the appropriate guideline range should have been 188-235 months based upon an offense level of 36. This impression was the result of an application of the amended version of U.S.S.G. § 2D1.5 which became effective on October 15, 1988. Under the prior version of § 2D1.5, the proper offense level was 32 with a sentencing range of 121-151 months. As the majority points out, the indictment charged Barash and Nagi with a continuing criminal enterprise that existed “from on or about August, 1986, said date being approximate, and continuing thereafter and including October 11, 1988[.]” Since the amended version of § 2D 1.5 did not come into effect until October 15, 1988, the original version of § 2D1.5, with its offense level of 32 and its sentencing range of 121-155 months was the lawful guideline range.
The majority seeks to diminish the “ex post facto problem” of sentencing the defendants to at least 49 months longer in prison under the inapplicable amended guideline by treating this as a “technical” misapplication of the guidelines. However, technical or not, it is a misapplication of the guidelines as a matter of law resulting in a sentence to the defendants which is higher than the sentence in effect at the time the crime was committed. The Supreme Court has held that such an application of the guidelines is a violation of the ex post facto clause and the older guideline must be applied. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).
The majority seeks to circumvent the unconstitutional nature of the sentence imposed by treating any objection to the sen*216tence as “waived.” The majority relies upon 18 U.S.C. § 3742 for the proposition that “a defendant must first present the claim in the district court before we can entertain the alleged misapplication of the Guidelines on appeal.” Maj.Op. at 213 (emphasis original). However, § 3742’s requirement that a “notice of appeal” be filed with the district court has nothing whatsoever to do with what issues were raised in the district court. All notices of appeal are filed with the district court before this court has jurisdiction to hear the appeal. It is a different question, however, whether the issues raised on appeal were raised before the district court, and further what legal effect, if any, the failure to raise an issue below will have on our disposition of the case. Obviously a notice of appeal was filed in this case, and that notice of appeal raised issues regarding the sentences the district court imposed on the defendants. Thus, any problem the majority has with our addressing the misapplication of the guidelines in this case must stem from something other than defendant’s failure to file a notice of appeal in the district court.
I submit that the majority’s waiver argument is based upon the theory that the United States and the defendant may somehow “agree” to the imposition of an otherwise unlawful sentence in a plea agreement. The majority states: “Clearly, the district court’s failure to address the asserted misapplication [of the guidelines] is not ‘plain error’ because both sides agreed to the application of the October guidelines.” Maj.Op. at 213. While the majority asserts this proposition as though it were obvious and clearly established law, such a position is not only unprecedented, it threatens to violate the very uniformity in sentencing the guidelines were designed to create.
Ch. 1, Pt.A 2 of the guidelines states in relevant part:
Pursuant to the Act, the sentencing court must select a sentence from within the guideline range. If, however, a particular case presents atypical features, the Act allows the court to depart from the guidelines and sentence outside the prescribed range. In that case, the court must specify reasons for departure. 18 U.S.C. § 3553(b). If the court sentences within the guideline range, an appellate court may review the sentence to determine whether the guidelines were correctly applied. If the court departs from the guideline range, an appellate court may review the reasonableness of the departure. 18 U.S.C. § 3742.
U.S.S.G. Ch. 1, Pt.A 2 (emphasis added). This passage makes clear that two types of sentences are possible under the guidelines. The first involves sentences imposed under the appropriate guideline range, and the second involves a departure from the appropriate guideline range based upon specific findings justifying the departure. There is simply no provision for sentencing based upon the wrong version of a guideline. Such a sentence is unlawful as a matter of law. Thus, the only way a court may sentence a defendant outside the appropriate guideline range is to find atypical circumstances warranting a departure. See U.S.S.G. § Ch. 1, Pt.A 2.
This court has held that the same is true when the defendant “agrees” to a unlawful sentence in a Fed.R.Crim.P. 11 plea agreement. United States v. Newsome, 894 F.2d 852 (6th Cir.1990). In Newsome the defendant’s lawyer mistakenly calculated the guideline range to result in a maximum sentence of 57 months. Id. at 854. Based upon this mistaken calculation, the government and the defendant agreed to a plea agreement which incorporated a sentence cap of 57 months. Later the probation department calculated the sentence in the presentence report and found that the proper range was 33-41 months. Nevertheless, the district court sentenced the defendant to 57 months without making findings as to the basis for its departure from the appropriate guideline range. This court reversed, citing 18 U.S.C. § 3553(b)’s requirement that the only method of departure from the proper guideline range was to make specific findings justifying an upward departure. Id. at 856-57. In so finding the court noted that it was irrelevant that the defendant agreed, based upon a mistaken calculation of the guidelines, to a *217sentence cap of 57 months as such an agreement did not change the statutory requirement to sentence under the appropriate guideline or find the aggravating circumstances giving rise to a reason for a departure. Id. at 856.
The logic of the Newsome rule goes to the heart of the purposes of the guidelines. If the United States could circumvent the guideline range by agreement, then there would, in effect, be no uniformity in sentencing. It is no accident that the overwhelming majority of Rule 11 plea agreements contain a clause stating that the district court may impose a sentence different from the one described in the agreement. This is because the district court, and not the parties, has the duty to insure that the sentence imposed is in conformity with the guidelines and other relevant law. Similarly, as judges of the United States Court of Appeals, we have a duty to insure that the sentence imposed by the district court is in conformity with the guidelines and with relevant law. 18 U.S.C. § 3742(e).
The majority tries to distinguish this case from Newsome by asserting that in New-some the presentence report showed that the plea agreement had miscalculated the sentence and that the defense attorney requested sentencing based upon the presen-tenee report. However, the majority’s distinctions amount to a finding that if the error is discovered before sentencing, then the defendant has a remedy, whereas, if the error is not discovered until after sentencing, there is no remedy. In Newsome, the district court, despite knowledge of the proper guideline range, improperly sentenced the defendant. In the instant case, the district court and the probation office were equally under the mistaken impression that the amended version of § 2D 1.5 applied when it did not. Thus, under the majority’s position, a knowing error is actionable whereas a mistake of law is not. The absurdity of such a position need not be emphasized. The cornerstone of any argument based upon waiver is that such waiver is knowing, and in circumstances where all parties concerned did not know of the error, it can hardly be charged that the defendants, but not the other actors, were derelict in not realizing the mistake.
The majority also relies upon United States v. Sloman, 909 F.2d 176 (6th Cir. 1990). In Sloman, the defendant’s lawyer affirmatively represented to the court that the guidelines applied to a conspiracy which admittedly began before the applicability of the guidelines. Id. at 182. As the majority suggests, this court in Sloman refused to hear a challenge to the applicability of the guidelines after the lawyer had argued for their applicability below. Id. However, Sloman involved a situation where the lawyer calculated as a strategic matter that his client would do better under the guidelines than he would under preguidelines sentencing, and then later sought to argue the opposite when he was not pleased with the result. In the instant case, no strategic question was presented as to whether to plead guilty based upon the applicability of one version of the guideline or another. Rather all parties including the district court assumed that the stricter version of the guidelines applied. They were mistaken as a matter of law, and no agreement by the defendant and the United States can undo the fact that the sentence is unlawful.
As I believe that the majority’s “waiver” rule based upon a so-called agreement to an unlawful sentence not only works a considerable injustice on the defendants in this case, but also provides the basis upon which the government can achieve sentences by “agreement” that it could not otherwise lawfully achieve under the guidelines, I dissent.