dissenting:
The majority is certainly correct in stating that the courts cannot grant credit for time served in pre-trial detention. See United States v. Wilson, — U.S. —, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). My colleagues err, however, by treating what Daggao is actually asking for — a downward departure under § 5K2.0 of the Sentencing Guidelines — as if it were equivalent to a request for credit. It is not. Accordingly, I dissent.
In Wilson, the Supreme Court held that a district court lacked authority to grant credit for time served in detention before sentencing. The Court stated that under 18 U.S.C. § 3585(b), credit for such detention could be granted only by the Attorney General.1 — U.S. at —, 112 S.Ct. at 1354, 117 L.Ed.2d 593. The Attorney General has determined that pre-trial home detention — no matter what the terms of the confinement imposed in the individual case — is not a sufficient restriction on liberty to qualify as “official detention” under the statute. See Program Statement No. 5880.24. We agreed with this construction of 18 U.S.C. § 3585(b) in Fraley v. United States Bureau of Prisons, 1 F.3d 924, 926 (9th Cir.1992), noting that at least three other circuits had reached the same conclusion.2
All of this is quite beside the point, however, because the determination that pre-trial *990home detention does not qualify as “official detention,” as that term is used in 18 U.S.C. § 3585(b), simply does not tell us whether the Sentencing Commission intended in the Sentencing Guidelines to prohibit downward departure when inordinately lengthy periods of home detention occur. Although the Bureau of Prisons is required by 18 U.S.C. § 3585(b) to give credit only for time spent in “official detention,” the Sentencing Commission is under no similar constraint with regard to downward departures under the Guidelines. Thus, Wilson and the cases applying it are not on point.3
Although both statutory credit and downward departure have the effect of reducing the time a defendant will serve, the two mechanisms operate quite differently and serve quite different purposes. Credit, which is granted automatically for time spent in pre-sentence incarceration, acts to prevent unfairness to defendants who are unable to make bail and are subject, as a result, to pretrial detention equivalent to imprisonment. The granting of credit is mandatory and is controlled by the terms of a specific statutory provision. Convicted defendants who have satisfied the terms of the statutory provision are entitled to credit as a matter of right.
Downward departures, on the other hand, are not controlled by statute, but are granted, in cases permitted by the Guidelines, largely according to the sentencing judge's discretion. The option of downward departures was included in the Guidelines to account for circumstances relevant to the determination of a just sentence but not considered in setting the Guidelines sentencing ranges. The Guidelines expressly authorize downward departure in a variety of circumstances, such as when the defendant is afflicted with an extraordinary physical impairment (§ 5H1.4), is aged or infirm (§ 5H1.1), provided substantial assistance to authorities (§ 5K1.1), was provoked by the victim (§ 5K2.10), or committed a crime under coercion and duress (§ 5K2.12) or to avoid a greater harm (§ 5K2.11). The Guidelines also authorize downward departures to account for other circumstances not considered by the Sentencing Commission. Section 5K2.0 of the Guidelines states that if the sentencing judge identifies a mitigating circumstance “not adequately taken into consideration” by the Commission, he “may impose a sentence outside the range established by the applicable guideline.” U.S.S.G. § 5K2.0.
We have never directly considered whether pre-trial home detention can serve as the basis for downward departure under the Guidelines. Nevertheless, our holding in United States v. Miller, 991 F.2d 552 (9th Cir.1993), makes it clear that time spent in home detention may be relevant in determining the availability of downward departure in some circumstances. In Miller, the district court departed downward to account for the six months that the defendant had already served under an erroneously imposed sentence of home detention. To make the defendant serve the entire Guideline sentence would, according to the district court, have constituted a “travesty”. In upholding the downward departure, we suggested that home detention constituted significant punishment:
We agree it may have been proper to depart because of the six months of home detention Miller had already served. The fact that she’d already been punished to some extent is certainly relevant to what further sentence is needed to punish her and deter others. See 18 U.S.C. § 3553(a)(2) (sentence should reflect these and other considerations). And because the Commission seems not to have considered the issue of compensating for time erroneously served, the district court was free to depart. See 18 U.S.C. § 3553(b).
991 F.2d at 554.
Thus, it would seem that home detention, even during the period prior to trial, may be *991worthy of consideration by a sentencing judge. Like compensation for time erroneously served in post-conviction home detention, compensation for time inordinately spent in pre-trial home detention has not been expressly considered by the Sentencing Commission. Nor indeed has there been any express consideration of the subject of pretrial home detention at all by the Commission. Nevertheless, there is strong evidence in the Guidelines themselves that the Commission views home detention as a substantial form of restraint (as, of course, we did in Miller). Section 501.1(e)(3) of the Guidelines authorizes the imposition of home detention for any sentence that falls within Zones A, B, or C of the Sentencing Table. As a result, under the Guidelines, certain prison terms of up to 16 months may be served, in their entirety, in home detention.
In short, the Sentencing Commission has concluded that home detention is sufficiently restrictive to serve as a one-to-one replacement for imprisonment in certain cases. Given this, I cannot say that the Commission would categorically prohibit the use of pretrial home detention as a basis for downward departure regardless of the length of time the defendant has been detained. Indeed, it is more likely that the Commission would permit district judges to consider whether to grant a downward departure on a case-by-case basis, at least in cases where the home detention at issue meets the definition set forth in the Commentary to § 5F1.2.4 The home detention in this case meets that definition. Accordingly, I would reverse the district court’s determination that it lacked authority to grant a downward departure and remand for resentencing.
The power to grant a downward departure is one of the most important vestiges of judicial discretion left to district judges by the Sentencing Guidelines. The majority’s opinion curtails that discretion unnecessarily, and with unfortunately harsh consequences. I respectfully dissent.
. 18 U.S.C. § 3585(b) provides, in pertinent part, that
A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences....
(Emphasis added).
. See United States v. Edwards, 960 F.2d 278, 283 (2d Cir.1992); United States v. Wickman, 955 F.2d 592, 593 (8th Cir.1992) (en banc); United States v. Insley, 927 F.2d 185, 186 (4th Cir.1991). See also United States v. Zackular, 945 F.2d 423, 425 n. 2 (1st Cir.1991).
. All of the other cases cited by the majority relate to requests for credit under 18 U.S.C. § 3585(b), and are inapplicable to Daggao’s request for a downward departure. As for United States v. Huss, 7 F.3d 1444 (9th Cir.1993), a case on which the majority relies heavily, we did not there reach the question of downward departures. Huss involved pre-trial state custody, not home detention. Our opinion in Huss never discusses whether pre-trial detention was considered by the Sentencing Commission as a basis for departure, or whether pre-trial detention constitutes a mitigating circumstance warranting downward departure. Huss holds only that the defendant should have pursued his request for credit by exhausting his administrative remedies with the Attorney General. Id. at 1448-49.
. "Home detention" means a program of confinement and supervision that restricts the defendant to his place of residence continuously, except for authorized absences, enforced by appropriate means of surveillance by the probation office. When an order of home detention is imposed, the defendant is required to be in his place of residence at all times except for approved absences for gainful employment, community service, religious services, medical care, educational or training programs, and such other items as may be specifically authorized. Electronic monitoring is an appropriate means of surveillance and ordinarily should be used in connection with home detention. However, alternative means of surveillance may be used as long as they are as effective as electronic monitoring.
U.S.S.G. § 5F1.2, Commentary (n. 1).