concurring in part and dissenting in part from the rationale:
I agree with my colleagues that the district court properly denied Mason’s motion to suppress. I also agree that Mason’s gunshot wound is not a “mitigating circumstance” within the meaning of 18 U.S.C. § 3553(b) and that it cannot, therefore, serve to justify a downward departure from the guidelines range, because it is not related to any of the stated purposes of sentencing, i.e., just punishment, adequate deterrence, public protection, or rehabilitation. 18 U.S.C. § 3553(a)(2) (1988). But I am distinctly uncomfortable with pro*1499nouncements in the panel opinion that I do not believe are necessary to the holding and which I fear may give misleading signals to future panels.
The Sentencing Commission has recognized the continued importance of judicial discretion in sentencing. “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.” Guidelines Manual app. C, at 132. After listing a few factors that a court cannot take into account as grounds for departure — race, sex, national origin, creed, religion, socio-eco-nomic status, drug or alcohol dependency, and economic hardship — the Commission indicated that “[w]ith those specific exceptions, ... [it] 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.” Id. (emphasis added).
Yet, after concluding that Mason’s gunshot wound was not a “mitigating circumstance” under the Sentencing Reform Act, my colleagues indulge in what I consider mischievous speculation that the Commission has by implication already considered and rejected a defendant’s “manner of apprehension” as a ground for departure when it provided for a two-level reduction for a defendant who voluntarily surrenders to authorities. See Majority Opinion (“Maj. Op.”) at 1497 (“at least by implication [the Commission] rejected Mason’s circumstance as an ‘appropriate consideration ],’ concluding that a defendant who is apprehended, not by his voluntary act, but by the acts of third parties or the police is not entitled to the reduction”). I believe such reasoning is fallacious. The statute instructs a district judge who finds a circumstance to be “mitigating” to then consider whether it is “of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b) (1988) (emphasis added).
Review is not limited to determining whether the Commission merely “considered” — i.e., mentioned — a subject. Rather, the test [in 18 U.S.C. § 3553(b) ] focuses on the adequacy of the consideration. It holds the Commission accountable with respect to the quality of the guideline and assures courts that they need not follow ill-considered limitations on their discretion.
Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 YALE L.J. 1681, 1699 (1992) (emphasis in original). The mere failure to discuss a factor as grounds for an adjustment does not constitute “adequate” consideration of that factor so as to preclude its use as a ground for departure. There is no authority whatsoever for the contrary proposition or for what my colleagues call consideration by “negative implication,” Maj.Op. at 1498. I find it farfetched at best to infer that because the Commission only discussed “voluntary surrender” as justifying an adjustment for acceptance of responsibility, no other circumstance of apprehension — for example, apprehension while rescuing an innocent bystander — would ever justify a departure. By suggesting that the Commission, by mentioning some, had ruled out all other aspects of apprehension as mitigating grounds for departure, my colleagues have improperly foreclosed the case-specific determination of sentence that the Sentencing Reform Act clearly contemplated. See Freed, supra, at 1708.
My colleagues insist that their negative interpretation of the Commission’s silence is intended only as support for the argument that Mason’s circumstances could not be considered “mitigating” within the meaning of the statute. See Maj.Op. at 1497 n. 8. What disturbs me, however, is the fact that they rely at all on the Commission’s lack of consideration of case-specific factors as a guide in limiting the discretion of district judges to depart. I find that course to be entirely at odds with the statute’s clear direction that only when the sentencing court believes the Commission’s consideration of the factor to have been “adequate” will the court be precluded from using that factor as a grounds for departure. Although the majority’s rea*1500soning may not affect the result in this case, it could well do so in future cases.
In the rapidly evolving jurisprudence of the Sentencing Guidelines, I believe an appellate court should be consciously modest in foreclosing trial court discretion in situations other than the precise one before it. For that reason, I disassociate myself from the majority’s suggestion that a “negative implication” arises whenever the Commission fails to mention the precise unusual circumstances that a court cites as grounds for departure.