concurring.
Two years have passed since the Supreme Court declared the federal Sentencing Guidelines advisory and instructed the courts of appeals to review criminal sentences for “reasonableness,” United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and more than a year has passed since this Court interpreted that directive as creating a rebuttable presumption of reasonableness for within-Guidelines sentences, United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006). Yet after watching this Court — and the other Courts of Appeals, whether they have formally adopted such a presumption or not — affirm hundreds upon hundreds of within-Guidelines sentences, it seems to me that the rebuttability of the presumption is more theoretical than real. In view *1167of the resources devoted to appeals of within-Guidelines sentences, it might be better if we were more candid in acknowledging this.
I.
This sentence comes as close as a within-Guidelines sentence could come to being substantively unreasonable. The defendant, Terri Pruitt, was convicted of selling 18.5 grams of methamphetamine. While this is a nontrivial quantity of narcotics, it hardly qualifies her as a major dealer. She has three prior drug felonies on her record, two of which occurred within a month of each other in 1992, and one of which occurred in 1987. All three prior crimes involved small quantities of narcotics, and all, like her current offense, were nonviolent.1 Had this been her first offense, her Guidelines sentencing range would have been 51 to 63 months. Accounting for her criminal history, but without applying the career offender guideline, her sentencing range would have been 63 to 78 months. But because the career offender guideline, U.S.S.G. § 4B1.1, applies, Ms. Pruitt’s sentencing range is 292 to 360 months. The district court sentenced her to 292 months in federal prison.
Except, perhaps, to judges numbed by frequent encounters with the results of the Sentencing Guidelines, Ms. Pruitt’s is an exceptionally long sentence. By comparison, a defendant who commits second degree murder, but has no criminal history, would have a sentencing range of 235 to 293 months. See U.S.S.G. § 2A1.2(a). Moreover, it does not matter, for sentencing purposes, whether Ms. Pruitt’s prior drug felonies were large-scale or petty, violent or nonviolent. Her sentencing range would be the same. One might reasonably ask whether a guideline that treats a defendant who has committed a series of relatively minor and nonviolent drug crimes more severely than a murderer, and that takes no account of the seriousness of the predicate crimes, always accounts for “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. §§ 3553(a)(1).
Even the U.S. Sentencing Commission has criticized the sweep of § 4B1.1. In its Fifteen Year Report, issued in 2004, the Commission examined empirical evidence regarding “whether the career offender guideline, especially as it applies to repeat drug traffickers, clearly promotes an important purpose of sentencing.” U.S. Sentencing Comm’n, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform 134 (Nov.2004). It concluded that “[ijncapaeitating a low-level drug seller prevents little, if any, drug selling; the crime is simply committed by someone else.” Id. Moreover, the Commission noted that
preliminary analysis of the recidivism rates of drug trafficking offenders sentenced under the career offender guideline based on prior drug convictions shows that their [recidivism] rates are much lower than other offenders who are assigned to criminal history category YI.... The recidivism rate for career *1168offenders more closely resembles the rates for offenders in the lower criminal history categories in which they would be placed under the normal criminal history scoring rules.... The career offender guideline thus makes the criminal history category a less perfect measure of recidivism risk than it would be without the inclusion of offenders qualifying only because of prior drug offenses.
Id. This might appear to be an admission by the Commission that this guideline, at least as applied to low-level drug sellers like Ms. Pruitt, violates the overarching command of § 3553(a) that “[t]he court ... impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in” § 3553(a)(2), including “the need for the sentence ... to provide just punishment for the offense,” § 3553(a)(2)(A); “to afford adequate deterrence to criminal conduct,” § 3553(a)(2)(B); and “to protect the public from the further crimes of the defendant,” § 3553(a)(2)(C).
I recognize that Congress enacted a statute requiring the Commission to “assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for” drug felony defendants who have two prior drug felonies. 28 U.S.C. § 994(h). As the ultimate architect of sentencing policy (within constitutional limits), Congress’s determination that three-time drug felons deserve sentences at the statutory maximum might well be dispositive for purposes of determining statutory reasonableness. But, as the Commission has noted, it is significant that Congress expressed this policy by directing the Commission to adjust the Guidelines rather than by enacting a statutory mandatory minimum. U.S.S.G. § 4B1.1 cmt. background. The Senate Judiciary Committee explained that by employing a more flexible directive rather than a binding mandatory minimum, “the guidelines development process can assure consistent and rational implementation for the Committee’s view that substantial prison terms should be imposed on repeat violent offenders and repeat drug traffickers.” S.Rep. No. 98-225, at 175 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3358. Employing that flexibility, the Commission has tweaked the definition of career drug offender in the guideline “in several respects to focus more precisely on the class of recidivist offenders for whom a lengthy term of imprisonment is appropriate and to avoid 'unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.’ ” U.S.S.G. § 4B1.1 cmt. background (quoting 28 U.S.C. § 991(b)(1)(B)). This suggests that Congress’s judgment regarding three-time offenders should not be understood as absolute. If the Commission may, consistently with 28 U.S.C. § 994(h), adopt a more tailored definition, it follows that judges, in their exercise of sentencing discretion, may do the same. And it follows further that, at least in theory, failure to do so, in an egregious case, could be deemed substantively unreasonable.
Both before and after Booker courts in this and other circuits have refused to follow the career offender guideline when it appeared to ensnare defendants undeserving of such harsh punishment. For example, in United States v. Bowser, 941 F.2d 1019 (10th Cir.1991), the defendant was convicted for the sale of 9.3 grams of crack cocaine. Id. at 1021. Six years prior to that incident, when the defendant was twenty years old, he had engaged in conspiracy to commit armed robbery, aggravated robbery, and kidnaping; while pending trial on those offenses he committed a separate aggravated robbery. Id. at 1022. The defendant pled guilty to all charges and was sentenced concurrently for all offenses. Id. at 1022-23. Upon sentencing for the drug crime, the federal *1169district court departed from the sentence mandated by § 4B1.1, finding that the pri- or offenses “(a) were committed when he was merely twenty years old, (b) were committed within two months of each other, and (c) were punished by concurrent sentences in the Kansas courts.” Id. at 1024. In upholding this departure, we held that the “unique combination of factors in defendant’s criminal history was not considered sufficiently by the Sentencing Commission to justify rigid application of the career offender criminal history categorization.” Id. at 1025 (emphasis added). As with the defendant in Bowser, two of Ms. Pruitt’s prior drug crimes were committed close in time and were sentenced concurrently by the state court. And while Ms. Pruitt was a bit older than Mr. Bowser when she committed her earlier offenses (23 and 28, respectively), her prior crimes were far less serious than his and did not involve violence.
Similarly, in United States v. Collins, the district court departed from the career offender guideline where the 64-year-old defendant pled guilty to distributing 279.7 grams of cocaine and had prior convictions for (1) possession of marijuana with intent to distribute, and (2) conspiracy to sell and transport cocaine. 122 F.3d 1297, 1299-1301 (10th Cir.1997). The defendant also had other prior convictions for possession of an illegal still, possession of marijuana, and assault and battery. Id. at 1300 n. 1. In affirming the departure, we stated:
The automatic placement of a career offender in criminal history category VI under U.S.S.G. § 4B1.1 reflects the Commission’s assessment that the offender possesses the most serious criminal history and the highest possible likelihood of recidivism. Thus, for a defendant who technically qualifies as a career offender but whose criminal history and likelihood of recidivism significantly differ from the heartland of career offenders, the sentencing court may consider a departure from the career offender category.
Id. at 1304. Like the defendant in Collins, Ms. Pruitt is a serial petty drug offender. Because she is a repeat offender, she deserves an increased sentence. But it is hard to justify sentencing her as if she were one of the most serious offenders in the criminal justice system.
Looking outside this Circuit, the case of United States v. Reyes, 8 F.3d 1379 (9th Cir.1993), is instructive. In Reyes, the defendant’s instant offenses included distribution of .14 grams of cocaine and about five grams of marijuana, and illegal reentry into the United States. Id. at 1381. He also had an extensive record of prior convictions for use of opiates, possession of marijuana with intent to distribute, attempted theft, obstructing a police officer, possession of cocaine and heroin, and possession and delivery of cocaine. Id. Under the career offender provision, the defendant would have qualified for a sentencing range of 210 to 262 months. Id. at 1382. The district court, noting that the defendant’s offenses were minor compared to others sentenced under the same guideline, departed downward and sentenced him to 33 months. Id. The Ninth Circuit affirmed, explaining that § 4B1.1 allows for “exceptional discrepancies” that may be sufficient to justify departure. Id. at 1387.
Post-Booker, the Eleventh Circuit has upheld a downward variance where the defendant’s instant offense involved distribution of five grams of crack cocaine and his prior convictions were for possession of cocaine with intent to deliver and carrying a concealed firearm. United States v. Williams, 435 F.3d 1350, 1352 (11th Cir.2006). The district court concluded that application of the career offender provision would “not promote respect for the law and [was] way out of proportion to the seriousness of the offense and to [the de*1170fendant’s] criminal prior conduct.” Id. at 1352-53. See also United States v. Fernandez, 436 F.Supp.2d 983, 984 (E.D.Wis.2006) (“Because this case presented an example of how the career offender guideline can conflict with the purposes of sentencing under 18 U.S.C. § 3553(a), I ... imposed a non-guideline sentence that better served those purposes.”); United States v. Qualls, 373 F.Supp.2d 873, 877 (E.D.Wis.2005) (concluding that a career offender sentence for a cocaine dealer with a long criminal history, which was “nearly 10 times higher than any previous, unrelated sentence, and nearly twice the applicable range, was greater than necessary,” and thus imposing a below-Guidelines sentence); United States v. Phelps, 366 F.Supp.2d 580, 590 (E.D.Tenn.2005) (“[I]t is not unusual that the technical definitions of ‘crime of violence’ and ‘controlled substance offense’ operate to subject some defendants to not just substantial, but extraordinary increases in their advisory Guidelines ranges. In some of these cases, the Court believes a non-Guidelines sentence may be sufficient, but not greater than necessary, to both comply with Congress’s desire to punish recidivism and the purposes of sentencing set out in § 3553(a)(2).”); United States v. Carvajal, No. 04-CR-222, 2005 WL 476125, at *5-6 (S.D.N.Y. Feb. 22, 2005) (departing from career offender range of 210 to 262 months and imposing a sentence of 168 months because the higher range was “excessive, in light of [defendant’s] recidivism, for the Guidelines Career Offenders are the same regardless of the severity of the crimes, the dangers posed to victims’ and bystanders’ lives, and other appropriate criteria”).
The career offender guideline is an especially appropriate context for the exercise of Booker discretion because any variance would be based on the particular circumstances of the offender and the offense rather than a blunderbuss attack on the sentencing policy reflected in the Guidelines. A judgment that a defendant like Bowser, Collins, Reyes, Williams — or possibly Pruitt — does not warrant the extraordinary sentence that would be meted out under § 4B1.1 is not a critique of the guideline. It is a determination that these individuals, despite meeting the formal criteria for career offenders, fall outside the guideline’s heartland or intended scope. See U.S.S.G. ch. 1, pt. A, intro, comment 4(b) (“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.”). By contrast, when a district court declines to follow the 100:1 crack/powder cocaine disparity, or refuses to enhance a sentence on the basis of uncharged or acquitted relevant conduct— decisions that the Courts of Appeals have almost uniformly ruled out of bounds under Booker1 — the sentencing judge is ef*1171fectively saying that the guideline in question is wrong everywhere and always.2
We might draw an analogy to the distinction between “facial” and “as-applied” constitutional challenges to legislation. A facial challenge is a head-on attack on the legislative judgment, an assertion that the challenged statute violates the Constitution in all, or virtually all, of its applications. An as-applied challenge concedes that the statute may be constitutional in many of its applications, but contends that it is not so under the particular circumstances of the case. One plausible way to understand the reach of the sentencing court’s postNoofcer discretion is to treat it as analogous to an as-applied challenge: although a particular guideline may well point to an appropriate sentence in many cases, the particular characteristics of the offender and the offense in a given case render it inappropriate.3
This conception respects the comparative advantages of the sentencing court and the Sentencing Commission. The former is in the best position to evaluate the defendant and make an informed judgment about the necessary extent of punishment under the circumstances. See Koon v. United States, 518 U.S. 81, 113, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). The latter is in the best position to set national sentencing policy — not just because the Commission can base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise, but, more importantly, because it has democratic legitimacy. See United States v. Cage, 451 F.3d 585, 593 (10th Cir.2006) (“[T]he Guidelines are an expression of popular political will about sentencing that is entitled to due consideration when we determine reasonableness.”). Congress has vested the Commission — not individual judges — with authority to engage in the quasi-legislative activity of determining national sentencing policy, and the Commission (for better or worse) is responsive to Congress in the way it performs these duties.4 When courts exercise their Book*1172er discretion on an “as-applied” basis, they act in their own area of comparative advantage and respect that of the Commission.
It follows that district courts should not be overly shy about concluding that particular defendants, even if third-time drug sellers, do not have the profile Congress and the Commission had in mind when they directed that sentences for career drug offenders be set at or near the top of the statutory range. Booker discretion is at its zenith when sentencing courts make the judgment that the particular conduct of the defendant falls only marginally within the scope of a guideline that even the Commission regards as overbroad and (in some applications) counter-productive. See pages 1167-68 above. Cf. United States v. Hernandez-Castillo, 449 F.3d 1127, 1132 (10th Cir.2006) (noting the propriety of a downward variance in the context of the overbroad “crime of violence” definition of U.S.S.G. § 2L1.2(b)(1)(A)(ii)); United States v. Trujillo-Terrazas, 405 F.3d 814, 817, 819-20 (10th Cir.2005) (noting the propriety of a downward variance where a defendant’s prior “arson” conviction — the circumstances of which were “innocuous” — technically qualified for an enhancement under U.S.S.G. § 2L1.2(a)(l)(A)(ii)). Even before Booker, this Court acknowledged that “for a defendant who technically qualifies as a career offender but whose criminal history and likelihood of recidivism significantly differ from the heartland of career offenders, the sentencing court may consider a departure from the career offender category.” Collins, 122 F.3d at 1304. The same is even more true after Booker.
II.
The majority affirms Ms. Pruitt’s sentence. I cannot disagree with that as a matter of precedent. This decision joins a long parade of cases affirming within-Guidelines sentences — however “harsh” (the majority’s own word) — under the “reasonableness” standard of appellate review created by the Supreme Court in its effort to bring the U.S. Sentencing Guidelines into conformity with its interpretation of the Sixth Amendment. See United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). More than two years have passed since Booker. Out of the thousands of within-Guidelines sentences reviewed during that time by the twelve Circuit Courts of Appeals, only one has been declared substantively unreasonable — and on remand in that case the defendant received exactly the same sentence, a judgment that the Eighth Circuit recently affirmed. See United States v. Lazenby, 439 F.3d 928, 934 (8th Cir.2006); United States v. Goodwin, 486 F.3d 449, 450-51 (8th Cir.2007).
But this Court — in company with several other Circuits — has held that within-Guidelines sentences are only presumptively reasonable. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006) (announcing that within-Guidelines sentences are “entitled to a rebuttable presumption of reasonableness ... that either the defendant or the government may rebut by demonstrating that the sentence is unreasonable when viewed against the other factors delineated in § 3553(a)”); see also United States v. Green, 436 F.3d 449, 457 (4th Cir.2006); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006); United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005); United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.2005); United States v. Dorcely, 454 F.3d 366, 376 (D.C.Cir.2006).5 This means that, *1173at least in theory, some such sentences cannot pass the “reasonableness” standard, which in turn means that public defenders, other defense counsel, U.S. Attorneys’ offices, and appellate courts devote vast quantities of resources to reviewing thousands of sentences without much likelihood of reversal. The process reminds me of the “snipe hunts” of my boyhood years in the Scouts, where the older boys would take the younger ones out in the woods at night in search for creatures that turned out not to exist. Great fun, for Boy Scouts. So far, in the post-Booker forest, only one apparent snipe has been found, and it turned out, on remand, not to be a snipe after all.
So when I come across a sentence like this — in which a nonviolent, relatively minor drug dealer receives a twenty-four year sentence that will consume the better portion of the remainder of her natural life — I ask: is this the case? If this within-Guidelines sentence is reasonable, does an unreasonable within-Guidelines sentence exist?
The majority seems to share these misgivings. Although it upholds Ms. Pruitt’s sentence, the majority declares it to be only “marginally” reasonable and notes that it “might represent the outer-boundary of what would be reasonable in this case, despite the fact that 292 months’ imprisonment represents the bottom of the applicable range under the career-offender provision.” Maj. Op. 1163, 1165. This formulation suggests that if Ms. Pruitt had received a higher sentence — but one still within her advisory Guidelines range — the majority might have deemed it unreasonable, despite the presumption. But all of the arguments the majority advances in favor of Ms. Pruitt’s actual 292-month sentence would apply with the same force to 293 months, 295 months, or even 360 months. What could Ms. Pruitt say about a 293-month sentence that she has not said about a 292-month sentence? Could she argue that the career offender provision is over-inclusive and sometimes fails to effectuate the § 3553 factors? She has argued that, and the majority responds that the district court’s analysis of these factors was cogent enough to pass muster. Id. at 1164. Could she argue that the sentence creates an unwarranted sentencing disparity by showing that similarly-situated defendants have received downward departures? She offers several examples, and the majority distinguishes all of the cases she cites and notes that “federal policy favors harsh sentencing for drug offenses.” Id. at 1165. Could she argue that the circumstances of her past crimes — relatively minor drugs quantities, convictions close in time, and no history of violence — make such a sentence greater than necessary to comply with the § 3553 factors? She has argued that, and the majority admits that she “rightly identifies” these as important considerations, but concludes that these factors “ultimately do not minimize the seriousness of her lawlessness.” Id. at 1163.
I would guess that much the same arguments can be made in any case. This makes me suspect that the real holding of this case — and of dozens like it — is that a substantively unreasonable within-Guidelines sentence does not exist. This raises the question of what we all are doing, and why.
III.
The sole purpose of appellate review under the pre-Booker system, as Justice Scalia has pointed out, was to preserve conformity with the Guidelines. Booker, 543 U.S. at 306, 125 S.Ct. 738 (Scalia, J., dissenting). Appellate review of non-Guidelines sentences after Booker appears to serve a similar function-although now the goal is reasonableness rather than *1174strict conformity. We ensure that district courts do not vary from the Guidelines without good reason, or to an excessive degree. See, e.g., United States v. Atencio, 476 F.3d 1099, 1106-07 (10th Cir.2007); Cage, 451 F.3d at 593-96; United States v. Wittig, 206 Fed.Appx.763, 770-71 (10th Cir.2006) (unpublished). But what is the purpose of appellate review of within-Guidelines sentences?
It cannot be to ensure that the sentence is properly calibrated to the particular circumstances of the offender and the offense. District judges, who interact with the defendant and hear the evidence in the case, are far better situated than appellate judges to make these judgments. See Koon, 518 U.S. at 92, 113, 116 S.Ct. 2035; see also United States v. Mateo, 471 F.3d 1162, 1172-73 (10th Cir.2006) (Murphy, J., concurring) (noting the district court’s “clear institutional advantage when it comes to discerning which defendants are in need of harsh punishment and which are in need of leniency”).
Nor can the purpose be to ensure that the Guidelines themselves reflect good sentencing policy. The Sentencing Commission has been entrusted by Congress with that quasi-legislative responsibility. To be sure, most appellate judges, myself included, strongly believe that some provisions of the Guidelines are misguided. There is something close to universal agreement that the 100:1 crack/powder cocaine ratio is unjust, and a great many judges believe the career offender and crime of violence guidelines are overbroad. Some of us worry that measuring the seriousness of prior offenses by the punishment authorized for the crime rather than by the defendant’s actual sentence is insufficiently discriminating and- has a draconian effect. Many judges believe the entire scale of punishments is pitched too high. But it would be hard to read Bookeds “reasonableness” standard as an invitation to Courts of Appeals to second-guess the Commission at the policy level regarding these points. We may not agree with all the Commission’s choices, but no one familiar with the Commission’s process could think its decisions fail the test of reason. Moreover, many of the more controversial provisions of the Guidelines — including the career offender guideline at issue in this case — originate in congressional action, which (within constitutional limits) carries democratic authority that judges are not entitled to disregard. If appellate courts were to become more aggressive in reviewing within-Guidelines sentences, they would in effect supplant the national Guidelines with regional sets of common law sentencing principles. This would surely undermine the uniformity of the system, and it is doubtful that it would improve the overall quality of justice in our courts.
So, it may be a good thing that appellate courts have almost universally deferred to district courts with respect to within-Guidelines sentences. If the Sentencing Guidelines represent sound — albeit not perfect — public policy, as Congress evidently believes, and if the remedial opinion in Booker solves the Sixth Amendment problems, as a majority of the Supreme Court evidently believes (assuming that there were any such Sixth Amendment problems, as a different majority of the Court believes), then maybe we should all take satisfaction in the fact that the Courts of Appeals have not mucked things up by holding procedurally-correct Guidelines sentences “unreasonable.” After all, prior to Booker, a district court’s decision not to depart from the Guidelines was not even appealable. United States v. Chavez-Diaz, 444 F.3d 1223, 1228 (10th Cir.2006). It is hard to understand why, if the Sixth Amendment problems with the prior system were somehow solved by giving district judges greater sentencing discretion, *1175a district court’s exercise of that enhanced discretion to sentence within the Guidelines should be reviewed more stringently on appeal than it was before. When the Sentencing Commission has determined a particular range to be the national norm and the district judge, who is most familiar with the circumstances of the defendant and the crime, determines that a within-Guidelines sentence is reasonable in light of the § 3553(a) factors, how could an appellate court presume to hold the resulting sentence unreasonable?
When evaluating non-Guidelines sentences, appellate courts have a benchmark — the Guidelines — and are able to determine whether the reasons for sentencing outside the Guidelines, and the extent of the variance, are sensible in light of the particular facts of the case. When evaluating within-Guidelines sentences, appellate courts have no such benchmark. The touchstone of reasonableness is the sentencing factors of § 3553(a), but those factors were not designed as an appellate standard of review and, in reality, provide no practical guidance. The § 3553(a) factors tell judges, like Goldilocks, not to sentence too high and not to sentence too low. As the majority opinion in this case demonstrates, it is hard to imagine a sentence that cannot be rationalized in terms of these factors.
These observations about appellate review of within-Guidelines sentences are entirely independent of the separate question — now before the Supreme Court in Rita, 177 Fed.Appx. 357, cert. granted, — U.S. -, 127 S.Ct. 551, 166 L.Ed.2d 406 — of how much weight district judges should accord the Guidelines. If the Guidelines calculation becomes only one factor among many and is no longer entitled to any presumptive weight, then district courts will have greater latitude to sentence outside the Guidelines. But why should this diminish their discretion to sentence within the Guidelines, if that is what they determine is most appropriate in the particular case? There are arguments going both ways regarding the conflicting values of individuated decision-making and national uniformity; there are arguments both ways regarding the meaning of the sentencing statute as severed and rewritten by the Court in Booker, there are arguments both ways about the logical connection between the Sixth Amendment’s guarantee of jury trial and the distinction between mandatory and advisory guidelines. But none of these arguments supports the proposition that appellate courts should be given a more aggressive role in second-guessing the combined judgment of the district court and the Sentencing Commission. When the district court, in its discretion, determines that the Guidelines range established by the Commission is appropriate in the particular case, it is entirely sensible, in light of institutional capabilities, for the Court of Appeals to presume that decision reasonable.
It follows that district judges must not assume that the presumption of reasonableness accorded within-Guidelines sentences on appeal is equivalent to a presumption of unreasonableness for variances. See United States v. Begay, 470 F.3d 964, 975-76 (10th Cir.2006). This case, for example, would have been an ideal candidate for a variance, or even for a departure. Many courts, both before and after Booker, have departed or varied from § 4B1.1 in the case of defendants seemingly far more dangerous than Ms. Pruitt. Moreover, it is to be hoped that the Sentencing Commission will take note of the excesses produced by this guideline, and make appropriate revision. But to say that district courts should exercise discretion based on the circumstances of the offender, or that the Commission should take a second *1176look at a problematic guideline from the perspective of national sentencing policy, is not to say that appellate courts, which have neither the district court’s familiarity with individual circumstances nor the Commission’s expertise and democratic warrant to set policy, should declare a sentence like Ms. Pruitt’s unreasonable.
IV.
I therefore concur in the judgment of the Court, although Ms. Pruitt’s sentence strikes me, from my limited vantage point as an appellate judge, as wildly excessive.
. The presentence report ("PSR”) states that the 1987 offense involved 28 grams of cocaine and garnered a sentence of probation. R. Vol. IV, at 7-8. The first 1992 offense involved 102.1 grams of marijuana and a "metal tin containing cocaine.” Id. at 9. The second 1992 offense occurred about a month later, and though the PSR does not state the amount of methamphetamine involved, Ms. Pruitt asserts it was only $70 worth-a contention that the government does not contest. Br. of Appellant 4-5. Ms. Pruitt's 1992 convictions resulted in 44 months imprisonment and about 21 months of parole. R. Vol. IV, at 9-10.
. On the crack/powder issue, compare United States v. Pho, 433 F.3d 53, 62-65, 54 (1st Cir.2006) (concluding that a district court cannot categorically reject the 100:1 crack/powder disparity), and United States v. Castillo, 460 F.3d 337, 361 (2d Cir.2006) (same), and United States v. Eura, 440 F.3d 625, 633 (4th Cir.2006) (same), and United States v. Leatch, 482 F.3d 790, 791-92 (5th Cir.2007) (same), and United States v. Jointer, 457 F.3d 682, 687-88 (7th Cir.2006) (same), and United States v. Spears, 469 F.3d 1166, 1175-76 (8th Cir.2006) (same), and United States v. Williams, 456 F.3d 1353, 1367 (11th Cir.2006) (same), with United States v. Gunter, 462 F.3d 237, 249 (3d Cir.2006) (concluding that district courts have discretion to consider the crack/powder disparity as a factor in sentencing), and United States v. Pickett, 475 F.3d 1347, 1354 (D.C.Cir.2007) (finding error in the district court's refusal to evaluate whether sentencing in accordance with the crack/powder disparity effectuates § 3553(a)). On the refusal to account for uncharged or acquitted relevant conduct, see United States v. Rico, 182 Fed.Appx. 722, 723 (9th Cir.2006) (unpublished); United States v. Pineiro, 470 F.3d *1171200, 206-07 (5th Cir.2006); United States v. Ashworth, 139 Fed.Appx. 525, 527 (4th Cir.2005) (unpublished). But see United States v. Faust, 456 F.3d 1342, 1349 (11th Cir.2006) (Barkett, J., specially concurring) (“I strongly believe ... that sentence enhancements based on acquitted conduct are unconstitutional under the Sixth Amendment, as well as the Due Process Clause of the Fifth Amendment.”); United States v. Pimental, 367 F.Supp.2d 143, 149-55 (D.Mass.2005) (declining to enhance a sentence on the basis of acquitted conduct).
.I do not choose these examples because of any personal agreement with the sentencing policies involved. Quite the contrary, these are examples of Guidelines policies that are problematic (and, in the case of the 100:1 crack/powder distinction, virtually indefensible). The reason that appellate courts have tended to reverse exercises of Booker discretion in these contexts is not that the district courts have somehow been unreasonable in thinking that these policies are misguided, but that, as a structural matter, these are policy questions whose resolution Congress entrusted to the Commission. See Pho, 433 F.3d at 62-63.
. The Supreme Court has heard argument in a case that could alter the structure of federal sentencing, and in particular could reduce the legal significance of the Sentencing Guidelines to but one of many sentencing factors a district court must consider under 18 U.S.C. § 3553(a). See United States v. Rita, 177 Fed.Appx. 357 (4th Cir.2006) (unpublished), cert. granted, - U.S. -, 127 S.Ct. 551, 166 L.Ed.2d 406 (2006). The outcome of this case could render the analysis in text regarding the nature of sentencing courts' Booker discretion obsolete.
. One might well think that this arrangement subverts the separation-of-powers protections of the Constitution, by enabling Congress to accomplish its purposes through low-level and nontransparent means, and without the alternative safeguards entailed by delegation of rulemaking authority to executive branch agencies. But these objections were rejected by the Supreme Court in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 *1172L.Ed.2d 714 (1989), a decision the Court does not seem inclined to revisit.
. It is not evident that in practice, appellate review in circuits that have declined to recognize a presumption is any different.