concurring:
The two clever swindlers had a good laugh as they got ready to leave the city. The nobles who were to carry the train were clutching at the air. Neither dared to admit that he couldn’t see the Emperor’s clothes.
And so the Emperor walked through the city under a magnificent canopy, and all the people cried, “Oh!” and, “Ah! The Emperor’s new clothes are splendid!”
Not one person was willing to say that he was stupid or unfit for his job. Each pretended the Emperor’s clothes were a great success.
“But he doesn’t have anything on!” cried one little child in the crowd.
“Just listen to the voice of the innocent!” said the father, trying to hush his child.
Whispers began to buzz about: “A child says the Emperor has nothing on. ”
“Yes!” cried all the people at last. “He doesn’t have anything on!”
The Emperor’s heart almost stopped beating. He knew the little child was right. But he thought, “The procession *964 must go on. ” So he stood a little straighten and walked a bit faster. And the nobles hurried to keep up with him, carrying a train that wasn’t even there.
Hans Christian Andersen, The Emperor’s New Clothes (Pictureback ed., Random House 1978).
I.
Like the Emperor’s new clothes, the Sentencing Guidelines are a bit of a farce. I recently overheard a respected member of the criminal bar say, “I’ll take judicial discretion any day — the Guidelines are a joke!” There are more than a few judges across the country who, in greater or lesser degree, share this critical view of the Guidelines.1 In this case, I join in Judge Ruth B. Ginsburg’s excellent opinion for the majority, because I think it reaches the correct result under the Guidelines, which I am bound by law to enforce. I write separately, however, to express my profound concerns about the efficacy of the Guideline system.
We are told that the Guidelines are fair because they ensure “uniformity” in sentencing. Equally guilty persons receive equally stringent sentences, so it is said. See, e.g., United States Sentencing Commission, Guidelines Manual, Ch. 1, Pt. A(3), p.s. (Nov. 1990) (“U.S.S.G.”). But, as we have come to learn, the Guidelines are rigid in formulation and, thus, often produce harsh results that are patently unfair because they fail to take account of individual circumstances that might militate in favor of a properly “tailored” sentence. See, e.g., JUDICIAL CONFERENCE OF THE UNITED States, Report of the Federal Courts Study Committee 135-140 (1990) (“1990 Study Committee Report”) (criticizing “undue rigidity” of Guideline sentencing and recommending reforms); Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U.Chi. L.Rev. 901, 915-24 (1991) (criticizing unfairness and disparities created by Guidelines); Charles J. Ogletree, Jr., The Death of Discretion? Reflections on the Federal Sentencing Guidelines, 101 Harv.L.Rev. 1938, 1953-54 (1988) (criticizing Guidelines’ failure to allow adequate consideration of offender characteristics).
We also have come to understand that the Guidelines do not, by any stretch of the imagination, ensure uniformity in sentencing. Assistant U.S. Attorneys (“AUSAs”) have been heard to say, with open candor, that there are many “games to be played,” both in charging defendants and in plea bargaining, to circumvent the Guidelines. Because of this reality, sentences under the Guidelines often bear no relationship to what the Sentencing Commission may have envisioned as appropriate in any given case.
The first “game” to be played under the Guidelines occurs in connection with the charging decision. The confluence of the Guidelines’ restriction of judicial discretion and the enactment of mandatory minimum sentences for many drug crimes2 has placed enormous power in the hands of the AUSA,3 effectively “replacing] judicial discretion over sentencing with prosecutorial discretion.” United States v. Kikumura, 918 F.2d 1084, 1119 (3d Cir.1990) (Rosenn, J., concurring). Consider the case of a defendant who is charged with possessing *965ten grams of crack cocaine with intent to distribute — an.offense carrying a Guideline sentence of 63-78 months for a defendant with no criminal record, and a mandatory minimum sentence of five years. See U.S.S.G. § 2D1.1(c)(9); 21 U.S.C. § 841(b)(l)(B)(iii) (1988). If the prosecutor elects to add a weapons charge in connection with the drug offense, the Guideline range goes to 78-97 months and the mandatory minimum rises to ten years. See U.S.S.G. § 2Dl.l(b)(l); 18 U.S.C. § 924(c)(1) (1988). The prosecutor also may choose to assert certain subsidiary facts which will affect the sentence,4 such as committing the offense at or near a school, or distributing to a minor — both of which add at least two offense levels (a minimum enhancement of 19 months in my hypothetical). See U.S.S.G. § 2D1.2(a)(l). The only way for the defendant to escape these lengthy minimum terms is to cooperate with the government in the hope that his assistance will be “substantial” enough to induce the prosecutor to make a motion for downward departure, see id. § 5K1.1; that decision, however, rests in the prosecutor’s discretion.5
The second disparity-creating game to be played — this one by prosecutors and defense attorneys in collaboration — is the plea bargaining process. By offering a plea, defense counsel may be able to cut a deal with a prosecutor to “bend the rules.” However, whether the rules actually get bent may depend upon the luck of the draw in judicial assignment: if the trial judge is willing to look the other way, the facts can be manipulated and the Guidelines ignored because no appeal will be taken by the prosecutor. See 1990 Study Committee Report, supra, at 138 (“some prosecutors (and some defense counsel) have evaded and manipulated the guidelines in order to induce the pleas necessary to keep the system afloat”); Marcia Chambers, Probation Officers Sit in Judgment, Nat’l L.J., April 16, 1990, at 13 (“Probation Officers”) (noting prevalence of “secret deals” between prosecutors and defense attorneys).
Assistant U.S. Attorneys are under a general policy mandate not to drop readily provable criminal counts against a defendant. See U.S. Department of Justioe, PROSECUTORS HANDBOOK ON THE SENTENCING Guidelines 46-47 (1987). But it is well-understood that AUSAs can and do drop counts if a defendant is perceived to be less culpable than the Guidelines might indicate, or if dropping the count is necessary to induce a plea. In addition (or as an alternative) to dropping counts, the AUSA also may vary the subsidiary facts asserted in a given case, thereby changing the sentence. Under the Guidelines, the quantity of drugs involved in a drug offense, see U.S.S.G. § 2D1.1, and the amount of money involved in theft and fraud-related offenses, see id. § 2B1.1, control the base offense level for sentencing. AUSAs, often in plea bargains, can affect sentencing by “adjusting” the amounts of drugs and money claimed to be involved in a criminal charge. See The Old Days, supra note 5, at 13 (noting rising prevalence of “fact bargaining”). Thus, two defendants caught with the same amount of drugs— even in the same transaction — can be sentenced differently, even when all other things appear to be equal.6
*966Yet another glitch in the process is the Probation Officer, the person assigned to “characterize” the defendant so that “points” for upward and downward adjustments can be assigned pursuant to the Guidelines. See Fed.R.Crim.P. 32(c)(2)(B). Under the Guidelines, the Probation Officer acts as both investigator and fact-finder.7 Enormous potential power rests in his or her hands, for how the Probation Officer chooses to characterize the defendant may add years of confinement to a jail term. For example, the Probation Officer may find that the defendant was a ring-leader in the offense (which adds four offense levels, see U.S.S.G. § 3Bl.l(a)); that he abused a position of trust (adding two levels, see id. § 3B1.3); that he obstructed justice (adding two levels, see id. § 3C1.1); or that he is not truly contrite (foreclosing the possibility of a downward adjustment for acceptance of responsibility, see id. § 3E1.1).8
Perhaps most importantly, the Probation Officer determines and evaluates the defendant’s “relevant conduct” — that is, conduct (often uncharged) that is related to, but not part of, the offense for which conviction has been sought. See id. § 1B1.3. This determination can have a substantial impact on the applicable Guideline range. See, e.g., United States v. Hill, 943 F.2d 873, 875 (8th Cir.1991) (upholding sentence that was more than doubled as result of uncharged, “relevant” conduct); Kikumura, 918 F.2d at 1119 (concluding that departure from 27-33 month Guideline range to 210-262 month range would be reasonable, based primarily upon defendant’s relevant conduct).
The Probation Officer may be accountable to almost no one, however, save those situations in which the Officer elects to work in concert with the U.S. Attorney’s Office.9 Nor is the Presentence Report subject to public scrutiny. Although it is always possible for a defendant or a prosecutor to challenge the contents of the Report, and it is also possible for a trial judge to reject all or part of the Report, many trial judges appear to accept the Report as written. Of course, to the extent that there are errors or omissions in the Report, sentencing uniformity is undermined. See Peter B. Pope, How Unreliable Factfinding Can Undermine Sentencing Guidelines, 95 Yale L.J. 1258, 1260, 1275-77 (1986).
I address the gamesmanship of the Guidelines and the problematic roles of the AUSAs and Probation Officers only to emphasize that the Guidelines have not eliminated sentencing discretion. Rather, they have merely transferred it from district judges — who, whatever their perceived failings, are at least impartial arbiters who make their decisions on the record and subject to public scrutiny and appellate review — to less neutral parties who rarely are called to account for the discretion they *967wield.10 Thus, the discretion and disparity game continues; it is only the players who have changed.
Viewed in this light, the Guidelines bring to mind the story The Emperor’s New Clothes. We continue to enforce the Guidelines as if, by magic, they have produced uniformity and fairness, when in fact we know it is not so. In the view of many, myself included, the Guidelines merely substitute one problem for another, and the present problem may be worse than its predecessor. Nonetheless we, the district courts, the U.S. Attorney’s Office11 and the defense bar are forced to press on— through contorted computations, lengthy sentencing hearings and endless appeals— in the service of a sovereign who can be neither clothed nor dethroned.
II.
This case is an example of how the Guidelines work at their worst. Although Harrington’s crime was admittedly serious, he was a first offender and was addicted to narcotics. An experienced district judge, after extensive hearings complete with expert testimony, concluded that Harrington’s prospects for drug rehabilitation were very good. Based upon this finding, the judge reasonably concluded that the eight-year sentence prescribed by the Guidelines was unnecessary and excessive in Harrington’s case. The judge’s finding as to Harrington’s likelihood of rehabilitation was not based on whimsy, as evidenced by the fact that the judge rejected a reduction for Harrington’s co-defendant after finding that his prospects for rehabilitation were not as good. Nor was the judge’s reasoning novel or adventurous. The Commission itself has determined that drug abuse leads to criminality, see U.S.S.G. § 5H1.4; logically, then, rehabilitation reduces the risk of recidivism and, therefore, the need for incapacitation. Yet, despite the propriety of the procedures followed by Judge Ober-dorfer and the soundness of his sentencing rationale, the Guidelines require us to reverse.12
Ironically, Harrington might have avoided the need for a downward departure by playing the Guideline game more skillfully. Had his counsel been more cunning, the prosecutor more amenable, or the Probation Officer of a different stripe, the rules might have been bent a little and the departure question effectively mooted. For example, had the prosecutor (perhaps in response to a plea offer) deleted the words “five grams or more” from the second count of the indictment, the five-year mandatory minimum would not have applied, *968see 21 U.S.C. § 841(b)(l)(B)(iii), and Harrington’s offense level would have been reduced by between two and 14 levels, depending upon what lesser amount was charged. See U.S.S.G. § 201.1(c). But because the discretion to depart from the Guidelines was exercised publicly by the District Court, instead of behind closed doors at the U.S. Attorney’s Office, reversal results.
The inequity wreaked in this case is endemic to the Guideline system. The appellate cases show a disparity between the relative ease of upward departure and the niggardly application of downward adjustments. The courts of appeals seem quick to find aggravating factors “unusual” enough to warrant upward departure, while mitigating factors are often rejected as “adequately considered” by the Sentencing Commission. Compare United States v. Montenegro-Rojo, 908 F.2d 425, 429-30 (9th Cir.1990) (upward departure justified by defendant’s use of aliases, disciplinary problems while incarcerated and repeated misconduct on public trolley) and United States v. Diaz-Villafane, 874 F.2d 43, 50-52 (1st Cir.) (upholding sentence four times greater than Guideline range based on defendant’s status as important drug supplier, use of adolescent couriers, and other factors), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989) with United States v. Pozzy, 902 F.2d 133, 138-39 (1st Cir.) (reversing downward departure based on defendant’s pregnancy; “We think the Commission was fully aware that some convicted female felons are pregnant at the time of sentencing.”), cert. denied, — U.S. —, 111 S.Ct. 353, 112 L.Ed.2d 316 (1990) and United States v. Brewer, 899 F.2d 503, 509-11 (6th Cir.) (reversing downward departure predicated upon defendants’ reputation in community, first offender status and remorse, despite district court’s finding that “incarceration would serve no useful purpose”), cert. denied, — U.S. —, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990). The instant case illustrates the point.
The decision that we reach today is probably the correct one under the existing legal regime. Our result, however, is somewhat strained, and it encounters dissent among other courts. We attempt to find a middle ground between the wholehearted acceptance of drug rehabilitation as a ground for departure, see United States v. Rodriguez, 724 F.Supp. 1118, 1119 (S.D.N.Y.1989), and its complete rejection, see United States v. Martin, 938 F.2d 162, 163-64 (9th Cir.1991). Yet, because the relevant inquiry is whether the Sentencing Commission “considered” drug rehabilitation — presumably a “yes” or “no” proposition — our compromise approach is perhaps less than ideal. Moreover, I am troubled by the fact that our holding will benefit addicts who accomplish the laudable and difficult task of rehabilitation no more than they would have benefitted had they demonstrated sincere contrition to the Probation Officer; indeed, for those rehabilitated addicts who would otherwise qualify for credit under the “acceptance of responsibility” Guideline, U.S.S.G. § 3E1.1, our decision today holds no benefit at all.
I join the result because it is as good as any other result, and better than most, under our existing system. I am bound by the system, because Congress established it, see Sentencing Reform Act of 1984, Pub. L.No. 98-473, ch. II, 98 Stat. 1987, 1987-2040 (codified in scattered sections of 18 U.S.C., 26 U.S.C., 28 U.S.C., 29 U.S.C. and 49 U.S.C.), and the Supreme Court has upheld it, see Mistretta v. United States, 488 U.S. 361, 412, 109 S.Ct. 647, 675, 102 L.Ed.2d 714 (1989). Nonetheless, I tend to agree with the many judges who have spoken out against the Guidelines — they are indeed a bit of a farce.
APPENDIX OF CASES AND AUTHORITIES
For judicial criticism of the Guidelines, see, for example: United States v. Hill, 943 F.2d at 877 (8th Cir.1991) (Heaney, J., concurring in part and dissenting in part) (arguing that doubling of sentence resulting from Guidelines’ consideration of uncharged conduct violates due process);
United States v. Davern, 937 F.2d 1041, 1043-45, 1047 (6th Cir.1991) (Merritt, C.J.) *969(holding that Guideline procedure for determining sentencing range violates enabling statute; where Guidelines produce sentence “greater than necessary” to comply with purposes of sentencing, district court may depart freely), reh ’g granted, decision and judgment vacated by Order (Sept. 26, 1991);
United States v. Pimentel, 932 F.2d 1029, 1032-33 (2d Cir.1991) (Oakes, C.J.) (expressing concern that under Guidelines, defendants who plead guilty may be unaware of enhancements resulting from relevant conduct rules);
United States v. Stanley, 928 F.2d 575, 583 (2d Cir.) (Feinberg, J.) (noting with concern transfer of discretion from district judge to prosecutor under Guidelines), cert. denied, — U.S. —, 112 S.Ct. 141, 116 L.Ed.2d 108 (1991);
United States v. Kikumura, 918 F.2d 1084, 1119 (3d Cir.1990) (Rosenn, J., concurring) (noting possible due process violation in Guidelines’ transfer of power to prosecutor, which permits “manipulation of ... charge and sentencing”);
United States v. Gutierrez, 908 F.2d 349, 354-55 (8th Cir.) (Heaney, J., dissenting) (arguing that government’s unguided discretion in deciding whether to make § 5K1.1 motion violates due process), vacated on reh’g en banc, 917 F.2d 379 (8th Cir.1990);
United States v. Allen, 873 F.2d 963, 966-67 (6th Cir.1989) (Merritt, J., concurring) (finding Guidelines consistent with due process by concluding that they “should not be viewed as mandatory sentencing rules” and that district courts retain “wide range of discretion” to depart);
United States v. Boshell, 728 F.Supp. 632, 637-38, 641 (E.D.Wash.1990) (McNi-chols, C.J.) (holding Guidelines unconstitutional as applied and criticizing shift of discretion from judges to prosecutors);
United States v. Roberts, 726 F.Supp. 1359, 1364-67 (D.D.C.1989) (Greene, J.) (holding Guidelines unconstitutional on due process grounds based upon transfer of unreviewable discretion to prosecutor), rev’d sub nom. United States v. Doe, 934 F.2d 353 (D.C.Cir.), cert. denied, — U.S. —, 112 S.Ct. 268, 116 L.Ed.2d 221 (1991);
United States v. Curran, 724 F.Supp. 1239, 1241 (C.D.Ill.1989) (Mihm, J.) (striking § 5K1.1 as unconstitutional on due process grounds), overruled by United States v. Lewis, 896 F.2d 246 (7th Cir.1990);
United States v. Rodriguez, 724 F.Supp. 1118, 1120-21 (S.D.N.Y.1989) (Leval, J.) (criticizing Guidelines’ lack of consideration of offender characteristics);
United States v. Donatiu, 720 F.Supp. 619, 624 n. 2 (N.D.Ill.1989) (Rovner, J.) (characterizing Guidelines as “faulty legislation”), aff'd, 922 F.2d 1331 (7th Cir.1991);
United States v. Davis, 715 F.Supp. 1473, 1477-78 (C.D.Cal.1989) (Letts, J.) (holding Guidelines unconstitutional due to limitations on sentencing discretion), overruled by United States v. Wilson, 900 F.2d 1350 (9th Cir.1990);
United States v. Alafriz, 690 F.Supp. 1303, 1310-11 (S.D.N.Y.1988) (Sweet, J.) (holding Guidelines unconstitutional as denying due process right to individualized sentence by judge), overruled by United States v. Vizcaino, 870 F.2d 52 (2d Cir. 1989);
United States v. Bogle, 689 F.Supp. 1121, 1163 (S.D.Fla.1988) (en banc) (Aronovitz, J., concurring) (finding Guidelines unconstitutional on due process grounds), overruled by United States v. Perez-Garcia, 904 F.2d 1534 (11th Cir.1990);
United States v. Brittman, 687 F.Supp. 1329, 1349-54 (E.D.Ark.1988) (Eisele, C.J., writing for all judges of Eastern District except Judge Reasoner) (holding Guidelines unconstitutional due, in part, to transfer of sentencing discretion to prosecutors), rev’d, 872 F.2d 827 (8th Cir.), cert. denied, 493 U.S. 865, 110 S.Ct. 184, 107 L.Ed.2d 140 (1989);
United States v. Ortega Lopez, 684 F.Supp. 1506, 1513 (C.D.Cal.1988) (en banc) (striking Guidelines as violative of right to individualized sentencing), overruled by United States v. Brady, 895 F.2d 538 (9th Cir.1990);
*970United States v. Frank, 682 F.Supp. 815, 817-19 (W.D.Pa.) (Ziegler, J.) (same), rev’d, 864 F.2d 992 (3d Cir.1988), cert. denied, 490 U.S. 1095, 109 S.Ct. 2442, 104 L.Ed.2d 998 (1989).
See also: Judioial Conference of the United States, Report of the Federal Courts Study Committee 133-40 (1990) (recommending repeal of mandatory minimum sentencing statutes and substantial reform of Guidelines); id. at 141 (additional statement by Judge Keep) (“The federal sentencing guidelines are not working. According to the legislative history, the goal of the guidelines was honesty, uniformity, and proportionality in sentencing.... The guidelines are failing miserably in achieving any of these goals.”).
Ellsworth A. Van Graafeiland, Some Thoughts on the Sentencing Reform Act of 1984, 31 Vill.L.Rev. 1291, 1293 (1986) (“The consensus of most knowledgeable critics is that the Commission’s sentencing by the numbers approach is too depersonalized, too complicated, too punitive, and too burdensome of application.”); id. at 1294 (predicting that Guidelines will “impose a massive additional burden on the courts, particularly at the appellate level”).
. See Appendix of Cases and Authorities, infra.
. These mandatory minimum sentences were enacted in the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, §§ 1001-1009, 100 Stat. 3207, 3207-2 to 3207-8 (codified in scattered sections of 18 U.S.C. and 21 U.S.C.). The mandatory mínimums have met with strenuous criticism by judges and commentators. See 1990 Study Committee Report, supra, at 133-34 (noting near universal judicial opposition to mandatory minimum sentence provisions and urging their repeal). Even the Sentencing Commission seems to agree. See United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System 33-34 (1991) (concluding that mandatory mínimums may create unwarranted sentencing disparity).
.See United States v. Roberts, 726 F.Supp. 1359, 1366 n. 46 (D.D.C.1989) (“It is a singularly unimaginative prosecutor who, with the use of these two instruments [the Guidelines and the mandatory minimums], is unable to dictate with almost unfailing precision exactly what the sentence will be.”), rev'd sub nom. United States v. Doe, 934 F.2d 353 (D.C.Cir.), cert. denied, — U.S. —, 112 S.Ct. 268, 116 L.Ed.2d 221 (1991).
. Of course, such subsidiary facts may be ascertained and used in the Guideline computation by the Probation Officer or the sentencing judge even if the prosecutor does not raise them. In practice this is unlikely, however, because the defendant, who is the major potential source of offense information besides the prosecutor, is unlikely to volunteer incriminating facts.
. As one practitioner has lamented, "There was a time you could go before a judge and try to get a break for your client. Now the judge’s hands are tied by the guidelines and so you go to a prosecutor and he may lower the sentence.” Marcia Chambers, The Old Days: When a Plea Was a Plea ..., Nat’l L.J., November 6, 1989, at 13 ("77ie Old Days") (quoting Albert Alschuler, Professor of Criminal Law at University of Chicago). One wonders whether the Guidelines, in transferring discretion from the district judge to the prosecutor, have not left the fox guarding the chicken coop of sentencing uniformity.
.As perhaps best explained by Judge Greene of the District Court for this District:
Because of the many options available to him, the prosecutor is free to introduce as much sentencing disparity into the system as he may choose. Prosecutors, sometimes for good reasons, sometimes for bad — just like *966some judges before them — have done just that. Every district judge has witnessed, and witnessed many times, the bringing of wholly disparate charges against defendants whose conduct was essentially identical, the consequence being that the judge is required by the guidelines to impose sentences that he may consider, or that objectively are, arbitrary and discriminatory in every meaningful sense.
Roberts, 726 F.Supp. at 1365-66.
.Some have questioned the competence of Probation Officers to fulfill this role. See, e.g., 1990 Study Committee Report, supra, at 138 ("[Tjhere is a growing concern among judges, prosecutors and defense lawyers that the new sentencing regime imposes on these officers responsibilities as independent investigators and fact-finders— recommending decisions and legal judgments as to the application of rules to factual situations— for which they may not be particularly well trained or well suited.”)
. The Probation Officer’s power to make these determinations sometimes may leave the defendant in a bind. As described by one commentator,
If the defendant tells the truth about the crime, the probation officer will add up the points differently. If the defendant denies the allegations, he or she may get a stiffer sentence for "obstruction;” if the defendant refuse[s] to talk at all, he or she could preclude credit for accepting responsibility for the crime.
Probation Officers, supra, at 13.
. It appears that there may be situations, for instance, where a Probation Officer will contact an AUSA in advance of writing a Presentence Report and ask, "how much of a 5K1.1 departure do you want in this case?” The Report is then written accordingly.
. Chief Judge McNichols of the Eastern District of Washington made this point forcefully in United States v. Boshell, 728 F.Supp. 632, 637-38 (E.D.Wash.1990). Noting that before the Guidelines, "disparities were controllable and tolerable because decisions were public and reviewable,” he points out that under the current regime
Congress has ... shifted discretion from persons who have demonstrated essential qualifications to the satisfaction of their peers, various investigatory agencies, and the United States Senate to persons [AUSAs] who may be barely out of law school with scant life experience and whose common sense may be an unproven asset.
Id. at 637.
. The Second Circuit recently increased the burden imposed upon AUSAs by the Guidelines in United States v. Pimentel, 932 F.2d 1029, 1033-34 (2d Cir.1991), ruling that if AUSAs are unwilling to engage in direct "sentence bargaining,” they should calculate and inform the defendant of his likely Guideline range prior to agreeing to a plea, in order to avoid unfair surprise.
.In this regard, I am reminded of Judge Ober-dorfer’s opening comments at the 1987 Judicial Conference of this Circuit. Drawing an analogy between district judges facing the coming of the Guidelines and European youths facing the onset of the First World War, as described in Barbara Tuchman’s The Guns of August (Bantam 1982), Judge Oberdorfer said:
I was thinking about that in terms of myself, and fantasized that I was a second lieutenant in the French Army, strolling on the Bois de Bologne, in the spring of 1914, not dreaming that, to mix metaphors, I would be squirming around in the mud of the Marne or the Somme or Verdón and get to my objective only to be machinegunned by the Court of Appeals.
Judicial Conference of the United States, Proceedings of the Forty-Eighth Judicial Conference of the District of Columbia Circuit 150 (West 1987). Judge Oberdorfer’s remarks take on a certain prophetic cast in light of today’s disposition.