concurring in part and dissenting in part.
I concur in Part II of the court’s opinion that holds that the bases for the district court’s departure discussed in that Part are inappropriate bases for a downward departure. I respectfully dissent from Parts I and III to the extent that those Parts approve of the district court’s departure based on the minimal amount of force used to commit the abusive sexual contact for which Allery was convicted.
Before a sentencing court may depart from an otherwise correctly determined Guideline sentencing range because the case is outside the Guideline’s heartland, it must determine whether the contemplated departure is expressly forbidden, encouraged, or discouraged by the Sentencing Commission. See United States v. Woods, 159 F.3d 1132, 1134 (8th Cir.1998). “If the factor is unmentioned [as is the case here], the sentencing court must consider the structure and theory of both relevant individual guidelines and the Guidelines taken as a whole, and decide whether the factor is sufficient to take the case out of the heartland.” Id. (internal quotations and citations omitted).
Allery’s sentence was determined pursuant to USSG § 2A3.1 (1995). In United States v. Amos, 952 F.2d 992, 995 (8th Cir.1991), cert. denied, 503 U.S. 1010, 112 S.Ct. 1774, 118 L.Ed.2d 432 (1992), we reversed a district court’s downward departure based on the nature of the defendant’s sexual assault of the victim. As the court’s present opinion sets out, our court held in Amos that “ ‘[djifferences in the severity of the conduct underlying the charged offense ... were considered by the Sentencing Commission in establishing the sentencing range.’ ” Ante at 613 (quoting Amos, 952 F.2d at 995). The court now says that the Amos holding cannot survive after the Supreme Court’s decision.in Koon. I respectfully disagree. Because USSG § 2A3.1 is designed to apply in cases ranging from those where the absolute minimum amount of force necessary to violate the sexual abuse statutes has been employed by the perpetrator up to and including those cases involving the maximum application of force to the victim, i.e., murder during the commission of the offense, see USSG § 2A3.1(c), the structure and theory of the Guideline demonstrate that the factor of the amount of force involved in a particular sexual abuse crime has been accounted for by the Sentencing Commission in setting the base offense level and in establishing the specific offense characteristics and cross-references contained in § 2A3.1. Consequently, no downward departure based on the fact that only the minimum amount of force necessary to violate the statute was employed is permitted. See 18 U.S.C. § 3553(b) (no departure allowed where the Sentencing Commission has adequately taken the factor into consideration in formulating the Guideline). Stated another way, the “heartland” of cases covered by this Guideline is, as far as the force factor is concerned, as broad as the range of force that may be employed to accomplish the crime.
An analogy to the determination of sentences under the drug guideline may better illustrate my point. Assume a sentencing judge determines that a defendant who *616falls in Criminal History Category III is responsible for delivering a small quantity, say 50 grams, of marijuana. USSG § 2Dl.l(c)(17) establishes an offense level of 6 (2-8 months) for less than 250 grams of marijuana. While a sentencing judge would be permitted to consider the fact that the defendant only was responsible for 50 grams when the judge determined where within the sentencing range of 2-8 months to impose a sentence, the judge could not depart downward from offense level 6 on the basis of the small quantity because the Sentencing Commission has already taken the absolute minimum quantity necessary to violate the statute into consideration when it wrote the Guideline at level 6 for cases involving the minimum amount of marijuana the delivery of which violates the drug statute. So it is with force as a determining factor in sexual abuse cases. While a sentencing judge can consider the fact that only the minimum force necessary to violate the statute was used against the victim to justify a sentence at the bottom of the identified guideline range, the judge cannot use minimum force as a basis for departure from that range.
The majority opinion recognizes the government’s argument in this regard, but dismisses it as an attempt to resurrect a foregone appeal from the district court’s failure to apply the four-level enhancement under § 2A3.1. Ante at 613. In this appeal, the government is not trying to add four levels to Allery’s base offense level; rather, it is showing the court that because the Guidelines did contemplate the minimal use of force needed to commit the crime of abusive sexual contact, no departure for minimal use of force should have been granted.
Finally, when we remand a case to the district court for reconsideration of a sentence, “we of course do not suggest what course the district court should take with respect to a downward departure.” United States v. Brown, 990 F.2d 397, 402 (1993). Yet, that is exactly what the majority does today. While “we are loath to adopt a per se rule that [a person] ... waking up with a total stranger having sexual intercourse with her[ ] necessarily implies] a level of psychological distress entirely atypical of that suffered by rape victims in general,” ante at 612, the majority finds that “the case almost necessarily falls outside the heartland of cases that the applicable guideline covers.” Ante at 613. Not only does the opinion “suggest” the district court’s course of action, it comes dangerously close to doing what it purports not to — creating a per se rule that abusive sexual contact through the use of force with a sleeping woman, who awakens while the force necessary to violate both her and the statute is being applied to her, is outside the heartland of cases contemplated by the applicable Guideline. I cannot subscribe to such a result.
For the reasons stated herein, I would reverse the district court’s sentence granting a downward departure to 30 months from the identified sentencing range of 70-87 months because none of the enumerated grounds were appropriate bases for a downward departure. In particular, because the relevant Guideline is designed to cover cases where only the minimum force necessary to violate the statute has been used (a condition we found to exist in the first appeal), our court is wrong to permit the district court on remand to consider whether the amount of force employed by Allery merits a downward departure. I would remand for a sentence within the sentencing guideline range of 70-87 months.