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119th Congress

Title 18 — Crimes and Criminal Procedure

Part II · Chapter 235 — Appeal

§ 3742. Review of a sentence

Statutory text

(a)

Appeal by a Defendant.—

A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence—

(1)

was imposed in violation of law;

(2)

was imposed as a result of an incorrect application of the sentencing guidelines; or

(3)

is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) 1 than the maximum established in the guideline range; or

(4)

was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

(b)

Appeal by the Government.—

The Government may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence—

(1)

was imposed in violation of law;

(2)

was imposed as a result of an incorrect application of the sentencing guidelines;

(3)

is less than the sentence specified in the applicable guideline range to the extent that the sentence includes a lesser fine or term of imprisonment, probation, or supervised release than the minimum established in the guideline range, or includes a less limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) 1 than the minimum established in the guideline range; or

(4)

was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

The Government may not further prosecute such appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General.

(c)

Plea Agreements.—

In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure—

(1)

a defendant may not file a notice of appeal under paragraph (3) or (4) of subsection (a) unless the sentence imposed is greater than the sentence set forth in such agreement; and

(2)

the Government may not file a notice of appeal under paragraph (3) or (4) of subsection (b) unless the sentence imposed is less than the sentence set forth in such agreement.

(d)

Record on Review.—

If a notice of appeal is filed in the district court pursuant to subsection (a) or (b), the clerk shall certify to the court of appeals—

(1)

that portion of the record in the case that is designated as pertinent by either of the parties;

(2)

the presentence report; and

(3)

the information submitted during the sentencing proceeding.

(e)

Consideration.—

Upon review of the record, the court of appeals shall determine whether the sentence—

(1)

was imposed in violation of law;

(2)

was imposed as a result of an incorrect application of the sentencing guidelines;

(3)

is outside the applicable guideline range, and

(A)

the district court failed to provide the written statement of reasons required by section 3553(c);

(B)

the sentence departs from the applicable guideline range based on a factor that—

(i)

does not advance the objectives set forth in section 3553(a)(2); or

(ii)

is not authorized under section 3553(b); or

(iii)

is not justified by the facts of the case; or

(C)

the sentence departs to an unreasonable degree from the applicable guidelines range, having regard for the factors to be considered in imposing a sentence, as set forth in section 3553(a) of this title and the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or

(4)

was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and, except with respect to determinations under subsection (3)(A) or (3)(B), shall give due deference to the district court’s application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court’s application of the guidelines to the facts.

(f)

Decision and Disposition.—

If the court of appeals determines that—

(1)

the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate;

(2)

the sentence is outside the applicable guideline range and the district court failed to provide the required statement of reasons in the order of judgment and commitment, or the departure is based on an impermissible factor, or is to an unreasonable degree, or the sentence was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable, it shall state specific reasons for its conclusions and—

(A)

if it determines that the sentence is too high and the appeal has been filed under subsection (a), it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate, subject to subsection (g);

(B)

if it determines that the sentence is too low and the appeal has been filed under subsection (b), it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate, subject to subsection (g);

(3)

the sentence is not described in paragraph (1) or (2), it shall affirm the sentence.

(g)

Sentencing Upon Remand.—

A district court to which a case is remanded pursuant to subsection (f)(1) or (f)(2) shall resentence a defendant in accordance with section 3553 and with such instructions as may have been given by the court of appeals, except that—

(1)

In determining the range referred to in subsection 3553(a)(4), the court shall apply the guidelines issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, and that were in effect on the date of the previous sentencing of the defendant prior to the appeal, together with any amendments thereto by any act of Congress that was in effect on such date; and

(2)

The court shall not impose a sentence outside the applicable guidelines range except upon a ground that—

(A)

was specifically and affirmatively included in the written statement of reasons required by section 3553(c) in connection with the previous sentencing of the defendant prior to the appeal; and

(B)

was held by the court of appeals, in remanding the case, to be a permissible ground of departure.

(h)

Application to a Sentence by a Magistrate Judge.—

An appeal of an otherwise final sentence imposed by a United States magistrate judge may be taken to a judge of the district court, and this section shall apply (except for the requirement of approval by the Attorney General or the Solicitor General in the case of a Government appeal) as though the appeal were to a court of appeals from a sentence imposed by a district court.

(i)

Guideline Not Expressed as a Range.—

For the purpose of this section, the term “guideline range” includes a guideline range having the same upper and lower limits.

(j)

Definitions.—

For purposes of this section—

(1)

a factor is a “permissible” ground of departure if it—

(A)

advances the objectives set forth in section 3553(a)(2); and

(B)

is authorized under section 3553(b); and

(C)

is justified by the facts of the case; and

(2)

a factor is an “impermissible” ground of departure if it is not a permissible factor within the meaning of subsection (j)(1).

Footnotes

  1. 1 See References in Text note below.

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

  1. Sentencing Reform Act of 1984

    Pub. L. 98–473 title II § 213(a) · 98 Stat. 1837

    Enacted · 18 U.S.C. § 3742

    Added Pub. L. 98–473, title II, § 213(a), Oct. 12, 1984, 98 Stat. 2011

    Source evidence

    Code source credit
    Added Pub. L. 98–473, title II, § 213(a), Oct. 12, 1984, 98 Stat. 2011

    Enacted provision · exact public law section
    (a) Chapter 235 of title 18, United States Code, is amended by adding the following new section at the end thereof: “§ 3742. Review of a sentence “(a) Appeal by a Defendant.— A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence— “(1) was imposed in violation of law; “(2) was imposed as a result of an incorrect application of the sentencing guidelines issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a); or Post, p. 2019. “(3) was imposed for an offense for which a sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1), and the sentence is greater than— “(A) the sentence specified in the applicable guideline to the extent that the sentence includes a greater fine or term of imprisonment or term of supervised release than the maximum established in the guideline, or includes a more limiting condition of probation or supervised release under section 3563 (b)(6) or (b)(11) than the maximum established in the guideline; and “(B) the sentence specified in a plea agreement, if any, under Rule 11 (e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure; or 18 USC app. “(4) was imposed for an offense for which no sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and is greater than the sentence specified in a plea agreement, if any, under Rule 11 (e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure. “(b) Appeal by the Government.— The Government may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence— “(1) was imposed in violation of law; “(2) was imposed as a result of an incorrect application of the sentencing guidelines issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a); “(3) was imposed for an offense for which a sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1), and the sentence is less than— “(A) the sentence specified in the applicable guideline to the extent that the sentence includes a lesser fine or term of imprisonment or term of supervised release than the minimum established in the guideline, or includes a less limiting condition of probation or supervised release under section 3563 (b)(6) or (b)( 11) than the minimum established in the guideline; and “(B) the sentence specified in a plea agreement, if any, under Rule 11 (e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure; or “(4) was imposed for an offense for which no sentencing guideline has been issued by the Sentencing Commission pursuant Post, p. 2019. to 28 U.S.C. 994(a)(1) and is less than the sentence specified in a plea agreement, if any, under Rule 11 (e)(1)(B) or (e)(1)(C) of 18 USC app. the Federal Rules of Criminal Procedure; and the Attorney General or the Solicitor General personally approves the filing of the notice of appeal. “(c) Record on Review.— If a notice of appeal is filed in the district court pursuant to subsection (a) or (b), the clerk shall certify to the court of appeals— “(1) that portion of the record in the case that is designated as pertinent by either of the parties; “(2) the presentence report; and “(3) the information submitted during the sentencing proceeding. “(d) Consideration.— Upon review of the record, the court of appeals shall determine whether the sentence— “(1) was imposed in violation of law; “(2) was imposed as a result of an incorrect application of the sentencing guidelines; or “(3) is outside the range of the applicable sentencing guideline, and is unreasonable, having regard for— “(A) the factors to be considered in imposing a sentence, Ante, p. 1987. as set forth in chapter 227 of this title; and “(B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c). The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous. “(e) Decision and Disposition.— If the court of appeals determines that the sentence— “(1) was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, it shall— “(A) remand the case for further sentencing proceedings; or “(B) correct the sentence; “(2) is outside the range of the applicable sentencing guideline and is unreasonable, it shall state specific reasons for its conclusions and— “(A) if it determines that the sentence is too high and the appeal has been filed under subsection (a), it shall set aside the sentence and— “(i) remand the case for imposition of a lesser sentence; “(ii) remand the case for further sentencing proceedings; or “(iii) impose a lesser sentence; “(B) if it determines that the sentence is too low and the appeal has been filed under subsection (b), it shall set aside the sentence and— “(i) remand the case for imposition of a greater sentence; “(ii) remand the case for further sentencing proceedings; or “(iii) impose a greater sentence; or “(3) was not imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, and is not unreasonable, it shall affirm the sentence.”.

  2. Criminal Law and Procedure Technical Amendments Act of 1986

    Pub. L. 99–646 § 73(a)(1) · 100 Stat. 3592

    Substituted · 18 U.S.C. § 3742(e)(1)

    Pub. L. 99–646, § 73(a)(1), substituted provision directing the court to remand the case for further sentencing proceedings with such instructions as the court considers appropriate, for provision directing the court to remand the case for further sentencing proceedings or correct the sentence

    Source evidence

    Code amendment note
    Subsec. (e)(1). Pub. L. 99–646, § 73(a)(1), substituted provision directing the court to remand the case for further sentencing proceedings with such instructions as the court considers appropriate, for provision directing the court to remand the case for further sentencing proceedings or correct the sentence.

    Enacted provision · exact public law section
    (1) in paragraph (1), by striking out “it shall” and all that follows through the end of such paragraph, and inserting in lieu thereof “the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate;” and

  3. Criminal Law and Procedure Technical Amendments Act of 1986

    Pub. L. 99–646 § 73(a)(2) · 100 Stat. 3592

    Substituted · 18 U.S.C. § 3742(e)(2)(A)

    Pub. L. 99–646, § 73(a)(2), substituted provision directing the court to remand the case for further sentencing proceedings with such instructions as the court considers appropriate for provision directing the court to remand the case for imposition of a lesser sentence, remand the case for further sentencing proceedings, or impose a lesser sentence

    Source evidence

    Code amendment note
    Subsec. (e)(2)(A). Pub. L. 99–646, § 73(a)(2), substituted provision directing the court to remand the case for further sentencing proceedings with such instructions as the court considers appropriate for provision directing the court to remand the case for imposition of a lesser sentence, remand the case for further sentencing proceedings, or impose a lesser sentence.

    Enacted provision · exact public law section
    (2) in each of subparagraphs (A) and (B) of paragraph (2), by striking out “and—” and all that follows through the end of the subparagraph and inserting in lieu thereof “the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate;”.

  4. Criminal Law and Procedure Technical Amendments Act of 1986

    Pub. L. 99–646 § 73(a)(2) · 100 Stat. 3592

    Substituted · 18 U.S.C. § 3742(e)(2)(B)

    Pub. L. 99–646, § 73(a)(2), substituted provision directing the court to remand the case for further sentencing proceedings with such instructions as the court considers appropriate, for provision directing the court to remand the case for imposition of a greater sentence, remand the case for further sentencing proceedings, or impose a greater sentence

    Source evidence

    Code amendment note
    Subsec. (e)(2)(B). Pub. L. 99–646, § 73(a)(2), substituted provision directing the court to remand the case for further sentencing proceedings with such instructions as the court considers appropriate, for provision directing the court to remand the case for imposition of a greater sentence, remand the case for further sentencing proceedings, or impose a greater sentence.

    Enacted provision · exact public law section
    (2) in each of subparagraphs (A) and (B) of paragraph (2), by striking out “and—” and all that follows through the end of the subparagraph and inserting in lieu thereof “the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate;”.

  5. Sentencing Act of 1987

    Pub. L. 100–182 § 5(1) · 101 Stat. 1266

    Substituted · 18 U.S.C. § 3742(a)(4)

    Pub. L. 100–182, § 5(1), substituted “and is plainly unreasonable or greater than the sentence specified in a plea agreement under” for “and is greater than the sentence specified in a plea agreement, if any, under”

    Source evidence

    Code amendment note
    Subsec. (a)(4). Pub. L. 100–182, § 5(1), substituted “and is plainly unreasonable or greater than the sentence specified in a plea agreement under” for “and is greater than the sentence specified in a plea agreement, if any, under”.

    Enacted provision · exact public law section
    (1) in subsection (a)(4), by inserting “plainly unreasonable or” before “greater than” and by striking out “, if any,”;

    Effective date note
    Amendment by Pub. L. 100–182 applicable with respect to offenses committed after Dec. 7, 1987, see section 26 of Pub. L. 100–182, set out as a note under section 3006A of this title.

  6. Sentencing Act of 1987

    Pub. L. 100–182 § 5(2) · 101 Stat. 1266

    Substituted · 18 U.S.C. § 3742(b)(4)

    Pub. L. 100–182, § 5(2), substituted “and is plainly unreasonable or less than the sentence specified in a plea agreement under” for “and is less than the sentence specified in a plea agreement, if any, under”

    Source evidence

    Code amendment note
    Subsec. (b)(4). Pub. L. 100–182, § 5(2), substituted “and is plainly unreasonable or less than the sentence specified in a plea agreement under” for “and is less than the sentence specified in a plea agreement, if any, under”.

    Enacted provision · exact public law section
    (2) in subsection (b)(4), by inserting “plainly unreasonable or” before “less than” and by striking out “, if any,”;

    Effective date note
    Amendment by Pub. L. 100–182 applicable with respect to offenses committed after Dec. 7, 1987, see section 26 of Pub. L. 100–182, set out as a note under section 3006A of this title.

  7. Sentencing Act of 1987

    Pub. L. 100–182 § 5(3) · 101 Stat. 1266

    Added · 18 U.S.C. § 3742(d)(4)

    Pub. L. 100–182, § 5(3), added par. (4)

    Source evidence

    Code amendment note
    Subsec. (d)(4). Pub. L. 100–182, § 5(3), added par. (4).

    Enacted provision · exact public law section
    (3) in subsection (d) (A) by striking out “or” at the end of paragraph (2); (B) by striking out the period at the end of paragraph (3) and inserting in lieu thereof “; or”; (C) by inserting after paragraph (3) the following new paragraph: “(4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.”;

    Effective date note
    Amendment by Pub. L. 100–182 applicable with respect to offenses committed after Dec. 7, 1987, see section 26 of Pub. L. 100–182, set out as a note under section 3006A of this title.

  8. Sentencing Act of 1987

    Pub. L. 100–182 § 5(4) · 101 Stat. 1266

    Inserted · 18 U.S.C. § 3742(e)(2)

    Pub. L. 100–182, § 5(4), inserted “or was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable” in introductory provisions

    Source evidence

    Code amendment note
    Subsec. (e)(2). Pub. L. 100–182, § 5(4), inserted “or was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable” in introductory provisions.

    Enacted provision · exact public law section
    (4) in subsection (e)(2), by inserting “or was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable” after “is outside the range of the applicable sentencing guideline and is unreasonable”;

    Effective date note
    Amendment by Pub. L. 100–182 applicable with respect to offenses committed after Dec. 7, 1987, see section 26 of Pub. L. 100–182, set out as a note under section 3006A of this title.

  9. Sentencing Act of 1987

    Pub. L. 100–182 § 5(5) · 101 Stat. 1266

    Substituted · 18 U.S.C. § 3742(e)(2)(A); 18 U.S.C. § 3742(e)(2)(B)

    Pub. L. 100–182, § 5(5), substituted “and” for “the court shall” before “remand”

    Source evidence

    Code amendment note
    Subsec. (e)(2)(A), (B). Pub. L. 100–182, § 5(5), substituted “and” for “the court shall” before “remand”.

    Enacted provision · exact public law section
    (5) in subsections (e)(2)(A) and (e)(2)(B), by striking out “the court shall” and inserting in lieu thereof “and”.

    Effective date note
    Amendment by Pub. L. 100–182 applicable with respect to offenses committed after Dec. 7, 1987, see section 26 of Pub. L. 100–182, set out as a note under section 3006A of this title.

  10. Sentencing Act of 1987

    Pub. L. 100–182 § 6 · 101 Stat. 1266

    Amended · 18 U.S.C. § 3742(e)(3)

    Pub. L. 100–182, § 6, amended par. (3) generally. Prior to amendment, par. (3) read as follows: “was not imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, and is not unreasonable, it shall affirm the sentence.”

    Source evidence

    Code amendment note
    Subsec. (e)(3). Pub. L. 100–182, § 6, amended par. (3) generally. Prior to amendment, par. (3) read as follows: “was not imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, and is not unreasonable, it shall affirm the sentence.”

    Enacted provision · exact public law section
    SEC. 6. CLARIFICATION OF BASIS FOR AFFIRMING AN APPEAL. Section 3742(e)(3) of title 18, United States Code, is amended to read as follows: “(3) is not described in paragraph (1) or (2), it shall affirm the sentence.”.

    Effective date note
    Amendment by Pub. L. 100–182 applicable with respect to offenses committed after Dec. 7, 1987, see section 26 of Pub. L. 100–182, set out as a note under section 3006A of this title.

  11. Sentencing Act of 1987

    Pub. L. 100–182 § 4 · 101 Stat. 1266

    Added · 18 U.S.C. § 3742(f)

    Pub. L. 100–182, § 4, added subsec. (f)

    Source evidence

    Code amendment note
    Subsec. (f). Pub. L. 100–182, § 4, added subsec. (f).

    Enacted provision · exact public law section
    SEC. 4. PROCEDURE FOR APPEALING SENTENCE IMPOSED BY A MAGISTRATE. Section 3742 of title 18, United States Code, is amended by adding at the end the following new subsection: “(f) Application to a Sentence by a Magistrate.— An appeal of an otherwise final sentence imposed by a United States magistrate may be taken to a judge of the district court, and this section shall apply as though the appeal were to a court of appeals from a sentence imposed by a district court.”.

    Effective date note
    Amendment by Pub. L. 100–182 applicable with respect to offenses committed after Dec. 7, 1987, see section 26 of Pub. L. 100–182, set out as a note under section 3006A of this title.

  12. National Commission on Measured Responses to Achieve a Drug-Free America by 1995 Authorization Act

    Pub. L. 100–690 § 7103(a)(1) · 102 Stat. 4181

    Struck · 18 U.S.C. § 3742(a)(2)

    Pub. L. 100–690, § 7103(a)(1), struck out “issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)” after “guidelines”

    Source evidence

    Code amendment note
    Subsec. (a)(2). Pub. L. 100–690, § 7103(a)(1), struck out “issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)” after “guidelines”.

    Enacted provision · exact public law section
    (1) in subsections (a)(2) and (b)(2), by striking “issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)”;

  13. National Commission on Measured Responses to Achieve a Drug-Free America by 1995 Authorization Act

    Pub. L. 100–690 § 7103(a)(2) · 102 Stat. 4181

    1. Added · 18 U.S.C. § 3742(a)(3)

      Pub. L. 100–690, § 7103(a)(2), added par. (3)

    2. Struck · 18 U.S.C. § 3742(a)(3)

      Pub. L. 100–690, § 7103(a)(2), struck out former par. (3) which read as follows: “was imposed for an offense for which a sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1), and the sentence is greater than—

    Source evidence

    Code amendment note
    Subsec. (a)(3). Pub. L. 100–690, § 7103(a)(2), added par. (3) and struck out former par. (3) which read as follows: “was imposed for an offense for which a sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1), and the sentence is greater than—

    “(A) the sentence specified in the applicable guideline to the extent that the sentence includes a greater fine or term of imprisonment or term of supervised release than the maximum established in the guideline, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline; and “(B) the sentence specified in a plea agreement, if any, under Rule 11(e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure; or”.

    Enacted provision · exact public law section
    (2) by striking paragraph (3) of subsection (a) and inserting the following: “(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or”;

  14. National Commission on Measured Responses to Achieve a Drug-Free America by 1995 Authorization Act

    Pub. L. 100–690 § 7103(a)(4) · 102 Stat. 4181

    1. Added · 18 U.S.C. § 3742(a)(4)

      Pub. L. 100–690, § 7103(a)(4), added par. (4)

    2. Struck · 18 U.S.C. § 3742(a)(4)

      Pub. L. 100–690, § 7103(a)(4), struck out former par. (4) which read as follows: “was imposed for an offense for which no sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and is plainly unreasonable or greater than the sentence specified in a plea agreement under Rule 11(e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure.”

    Source evidence

    Code amendment note
    Subsec. (a)(4). Pub. L. 100–690, § 7103(a)(4), added par. (4) and struck out former par. (4) which read as follows: “was imposed for an offense for which no sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and is plainly unreasonable or greater than the sentence specified in a plea agreement under Rule 11(e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure.”

    Enacted provision · exact public law section
    (4) by striking paragraph (4) of subsection (a) and inserting the following: “(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.”;

  15. National Commission on Measured Responses to Achieve a Drug-Free America by 1995 Authorization Act

    Pub. L. 100–690 § 7103(a)(5) · 102 Stat. 4181

    1. Inserted · 18 U.S.C. § 3742(b)

      Pub. L. 100–690, § 7103(a)(5), inserted “, with the personal approval of the Attorney General or the Solicitor General,” after “The Government” in introductory provisions

    2. Struck · 18 U.S.C. § 3742(b)

      Pub. L. 100–690, § 7103(a)(5), struck out concluding provisions which read as follows: “and the Attorney General or the Solicitor General personally approves the filing of the notice of appeal.”

    Source evidence

    Code amendment note
    Subsec. (b). Pub. L. 100–690, § 7103(a)(5), inserted “, with the personal approval of the Attorney General or the Solicitor General,” after “The Government” in introductory provisions, and struck out concluding provisions which read as follows: “and the Attorney General or the Solicitor General personally approves the filing of the notice of appeal.”

    Enacted provision · exact public law section
    (5) in subsection (b)— (A) by striking paragraph (4) through the end and inserting the following: “(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.”; and (B) by inserting after “The Government” the following: “, with the personal approval of the Attorney General or the Solicitor General,”;

  16. National Commission on Measured Responses to Achieve a Drug-Free America by 1995 Authorization Act

    Pub. L. 100–690 § 7103(a)(1) · 102 Stat. 4181

    Struck · 18 U.S.C. § 3742(b)(2)

    Pub. L. 100–690, § 7103(a)(1), struck out “issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)” after “guidelines”

    Source evidence

    Code amendment note
    Subsec. (b)(2). Pub. L. 100–690, § 7103(a)(1), struck out “issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)” after “guidelines”.

    Enacted provision · exact public law section
    (1) in subsections (a)(2) and (b)(2), by striking “issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)”;

  17. National Commission on Measured Responses to Achieve a Drug-Free America by 1995 Authorization Act

    Pub. L. 100–690 § 7103(a)(3) · 102 Stat. 4181

    1. Added · 18 U.S.C. § 3742(b)(3)

      Pub. L. 100–690, § 7103(a)(3), added par. (3)

    2. Struck · 18 U.S.C. § 3742(b)(3)

      Pub. L. 100–690, § 7103(a)(3), struck out former par. (3) which read as follows: “was imposed for an offense for which a sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1), and the sentence is less than—

    Source evidence

    Code amendment note
    Subsec. (b)(3). Pub. L. 100–690, § 7103(a)(3), added par. (3) and struck out former par. (3) which read as follows: “was imposed for an offense for which a sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1), and the sentence is less than—

    “(A) the sentence specified in the applicable guideline to the extent that the sentence includes a lesser fine or term of imprisonment or term of supervised release than the minimum established in the guideline, or includes a less limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the minimum established in the guideline; and “(B) the sentence specified in a plea agreement, if any, under Rule 11(e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure; or”.

    Enacted provision · exact public law section
    (3) by striking paragraph (3) of subsection (b) and inserting the following: “(3) is less than the sentence specified in the applicable guideline range to the extent that the sentence includes a lesser fine or term of imprisonment, probation, or supervised release than the minimum established in the guideline range, or includes a less limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the minimum established in the guideline range; or”;

  18. National Commission on Measured Responses to Achieve a Drug-Free America by 1995 Authorization Act

    Pub. L. 100–690 § 7103(a)(5)(A) · 102 Stat. 4181

    1. Added · 18 U.S.C. § 3742(b)(4)

      Pub. L. 100–690, § 7103(a)(5)(A), added par. (4)

    2. Struck · 18 U.S.C. § 3742(b)(4)

      Pub. L. 100–690, § 7103(a)(5)(A), struck out former par. (4) which read as follows: “was imposed for an offense for which no sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and is plainly unreasonable or less than the sentence specified in a plea agreement under Rule 11(e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure;”

    Source evidence

    Code amendment note
    Subsec. (b)(4). Pub. L. 100–690, § 7103(a)(5)(A), added par. (4) and struck out former par. (4) which read as follows: “was imposed for an offense for which no sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and is plainly unreasonable or less than the sentence specified in a plea agreement under Rule 11(e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure;”.

    Enacted provision · exact public law section
    (A) by striking paragraph (4) through the end and inserting the following: “(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.”; and

  19. National Commission on Measured Responses to Achieve a Drug-Free America by 1995 Authorization Act

    Pub. L. 100–690 § 7103(a)(8) · 102 Stat. 4181

    Redesignated · 18 U.S.C. § 3742(c)

    Pub. L. 100–690, § 7103(a)(8), added subsec. (c). Former subsec. (c) redesignated (d)

    Source evidence

    Code amendment note
    Subsec. (c). Pub. L. 100–690, § 7103(a)(8), added subsec. (c). Former subsec. (c) redesignated (d).

    Enacted provision · exact public law section
    (8) by inserting a new subsection (c), as follows, and by redesignating subsections (c), (d), (e), and (f) as subsections (d), (e), (f), and (g), respectively: “(c) Plea Agreements.— In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure— “(1) a defendant may not file a notice of appeal under paragraph (3) or (4) of subsection (a) unless the sentence imposed is greater than the sentence set forth in such agreement; and “(2) the Government may not file a notice of appeal under paragraph (3) or (4) of subsection (b) unless the sentence imposed is less than the sentence set forth in such agreement.”; and

  20. National Commission on Measured Responses to Achieve a Drug-Free America by 1995 Authorization Act

    Pub. L. 100–690 § 7103(a)(8) · 102 Stat. 4181

    Redesignated · 18 U.S.C. § 3742(d)

    Pub. L. 100–690, § 7103(a)(8), redesignated former subsec. (c) as (d). Former subsec. (d) redesignated (e)

    Source evidence

    Code amendment note
    Subsec. (d). Pub. L. 100–690, § 7103(a)(8), redesignated former subsec. (c) as (d). Former subsec. (d) redesignated (e).

    Enacted provision · exact public law section
    (8) by inserting a new subsection (c), as follows, and by redesignating subsections (c), (d), (e), and (f) as subsections (d), (e), (f), and (g), respectively: “(c) Plea Agreements.— In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure— “(1) a defendant may not file a notice of appeal under paragraph (3) or (4) of subsection (a) unless the sentence imposed is greater than the sentence set forth in such agreement; and “(2) the Government may not file a notice of appeal under paragraph (3) or (4) of subsection (b) unless the sentence imposed is less than the sentence set forth in such agreement.”; and

  21. National Commission on Measured Responses to Achieve a Drug-Free America by 1995 Authorization Act

    Pub. L. 100–690 § 7103(a)(6) · 102 Stat. 4181

    1. Substituted · 18 U.S.C. § 3742(d)

      Pub. L. 100–690, § 7103(a)(6), (7), substituted “applicable guideline range” for “range of the applicable sentencing guideline” in par. (3)

    2. Inserted · 18 U.S.C. § 3742(d)

      Pub. L. 100–690, § 7103(a)(6), (7), inserted “and shall give due deference to the district court’s application of the guidelines to the facts” after “are clearly erroneous” in concluding provisions

    Target inherited from the preceding amendment note.

    Source evidence

    Code amendment note
    Pub. L. 100–690, § 7103(a)(6), (7), substituted “applicable guideline range” for “range of the applicable sentencing guideline” in par. (3) and inserted “and shall give due deference to the district court’s application of the guidelines to the facts” after “are clearly erroneous” in concluding provisions.

    Enacted provision · exact public law section
    (6) in subsections (d)(3) and (e)(2), by striking “range of the applicable sentencing guideline” and inserting “applicable guideline range”;

  22. National Commission on Measured Responses to Achieve a Drug-Free America by 1995 Authorization Act

    Pub. L. 100–690 § 7103(a)(8) · 102 Stat. 4181

    Redesignated · 18 U.S.C. § 3742(e)

    Pub. L. 100–690, § 7103(a)(8), redesignated former subsec. (d) as (e). Former subsec. (e) redesignated (f)

    Source evidence

    Code amendment note
    Subsec. (e). Pub. L. 100–690, § 7103(a)(8), redesignated former subsec. (d) as (e). Former subsec. (e) redesignated (f).

    Enacted provision · exact public law section
    (8) by inserting a new subsection (c), as follows, and by redesignating subsections (c), (d), (e), and (f) as subsections (d), (e), (f), and (g), respectively: “(c) Plea Agreements.— In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure— “(1) a defendant may not file a notice of appeal under paragraph (3) or (4) of subsection (a) unless the sentence imposed is greater than the sentence set forth in such agreement; and “(2) the Government may not file a notice of appeal under paragraph (3) or (4) of subsection (b) unless the sentence imposed is less than the sentence set forth in such agreement.”; and

  23. National Commission on Measured Responses to Achieve a Drug-Free America by 1995 Authorization Act

    Pub. L. 100–690 § 7103(a)(6) · 102 Stat. 4181

    Substituted · 18 U.S.C. § 3742(e)(2)

    Pub. L. 100–690, § 7103(a)(6), substituted “applicable guideline range” for “range of the applicable sentencing guideline”

    Source evidence

    Code amendment note
    Subsec. (e)(2). Pub. L. 100–690, § 7103(a)(6), substituted “applicable guideline range” for “range of the applicable sentencing guideline”.

    Enacted provision · exact public law section
    (6) in subsections (d)(3) and (e)(2), by striking “range of the applicable sentencing guideline” and inserting “applicable guideline range”;

  24. National Commission on Measured Responses to Achieve a Drug-Free America by 1995 Authorization Act

    Pub. L. 100–690 § 7103(a)(8) · 102 Stat. 4181

    Redesignated · 18 U.S.C. § 3742(f); 18 U.S.C. § 3742(g)

    Pub. L. 100–690, § 7103(a)(8), redesignated former subsecs. (e) and (f) as (f) and (g), respectively

    Source evidence

    Code amendment note
    Subsecs. (f), (g). Pub. L. 100–690, § 7103(a)(8), redesignated former subsecs. (e) and (f) as (f) and (g), respectively.

    Enacted provision · exact public law section
    (8) by inserting a new subsection (c), as follows, and by redesignating subsections (c), (d), (e), and (f) as subsections (d), (e), (f), and (g), respectively: “(c) Plea Agreements.— In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure— “(1) a defendant may not file a notice of appeal under paragraph (3) or (4) of subsection (a) unless the sentence imposed is greater than the sentence set forth in such agreement; and “(2) the Government may not file a notice of appeal under paragraph (3) or (4) of subsection (b) unless the sentence imposed is less than the sentence set forth in such agreement.”; and

  25. National Commission on Measured Responses to Achieve a Drug-Free America by 1995 Authorization Act

    Pub. L. 100–690 § 7103(a)(9) · 102 Stat. 4181

    Added · 18 U.S.C. § 3742(h)

    Pub. L. 100–690, § 7103(a)(9), added subsec. (h)

    Source evidence

    Code amendment note
    Subsec. (h). Pub. L. 100–690, § 7103(a)(9), added subsec. (h).

    Enacted provision · exact public law section
    (9) by adding at the end of the section the following new subsection: “(h) Guideline Not Expressed as a Range.— For the purpose of this section, the term ‘guideline range’ includes a guideline range having the same upper and lower limits.”.

  26. Crime Control Act of 1990

    Pub. L. 101–647 § 3501 · 104 Stat. 4789

    Struck and inserted · 18 U.S.C. § 3742(b)

    Pub. L. 101–647, § 3501, struck out “, with the personal approval of the Attorney General or the Solicitor General” after “The Government” in introductory provisions and inserted at end “The Government may not further prosecute such appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General.”

    Source evidence

    Code amendment note
    Subsec. (b). Pub. L. 101–647, § 3501, struck out “, with the personal approval of the Attorney General or the Solicitor General” after “The Government” in introductory provisions and inserted at end “The Government may not further prosecute such appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General.”

    Enacted provision · exact public law section
    SEC. 3501. MODIFICATION OF APPROVAL REQUIREMENTS FOR GOVERNMENT SENTENCE APPEALS. Section 3742(b) of title 18, United States Code, is amended— (1) by striking “, with the personal approval of the Attorney General or the Solicitor General”; and (2) by adding at the end the following: “The Government may not further prosecute such appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General.”.

  27. Crime Control Act of 1990

    Pub. L. 101–647 § 3503 · 104 Stat. 4789

    Inserted · 18 U.S.C. § 3742(g)

    Pub. L. 101–647, § 3503, inserted “(except for the requirement of approval by the Attorney General or the Solicitor General in the case of a Government appeal)” after “and this section shall apply”

    Source evidence

    Code amendment note
    Subsec. (g). Pub. L. 101–647, § 3503, inserted “(except for the requirement of approval by the Attorney General or the Solicitor General in the case of a Government appeal)” after “and this section shall apply”.

    Enacted provision · exact public law section
    SEC. 3503. DELETION OF REQUIREMENT FOR SOLICITOR GENERAL APPROVAL OF APPEAL TO A DISTRICT COURT FROM A SENTENCE IMPOSED BY A MAGISTRATE. Section 3742(g) of title 18, United States Code, is amended by inserting “(except for the requirement of approval by the Attorney General or the Solicitor General in the case of a Government appeal)” after “and this section shall apply”.

  28. Violent Crime Control and Law Enforcement Act of 1994

    Pub. L. 103–322 title XXXIII § 330002(k) · 108 Stat. 1796

    Struck · 18 U.S.C. § 3742(b)

    Pub. L. 103–322 struck out comma after “Government” in introductory provisions

    Source evidence

    Code amendment note
    Subsec. (b). Pub. L. 103–322 struck out comma after “Government” in introductory provisions.

    Enacted provision · exact public law section
    (k) Elimination of Superfluous Comma.— Section 3742(b) of title 18, United States Code, is amended by striking “Government,” and inserting “Government”.

  29. Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003

    Pub. L. 108–21 § 401(d)(2) · 117 Stat. 650

    Substituted · 18 U.S.C. § 3742(e)

    Pub. L. 108–21, § 401(d)(2), in concluding provisions, substituted “, except with respect to determinations under subsection (3)(A) or (3)(B), shall give due deference to the district court’s application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court’s application of the guidelines to the facts” for “shall give due deference to the district court’s application of the guidelines to the facts”

    Source evidence

    Code amendment note
    Subsec. (e). Pub. L. 108–21, § 401(d)(2), in concluding provisions, substituted “, except with respect to determinations under subsection (3)(A) or (3)(B), shall give due deference to the district court’s application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court’s application of the guidelines to the facts” for “shall give due deference to the district court’s application of the guidelines to the facts”.

    Enacted provision · exact public law section
    (2) Standard of review.— The last paragraph of section 3742(e) of title 18, United States Code, is amended by striking “shall give due deference to the district court’s application of the guidelines to the facts” and inserting “, except with respect to determinations under subsection (3)(A) or (3)(B), shall give due deference to the district court’s application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court’s application of the guidelines to the facts”.

  30. Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003

    Pub. L. 108–21 § 401(d)(1) · 117 Stat. 650

    Amended · 18 U.S.C. § 3742(e)(3)

    Pub. L. 108–21, § 401(d)(1), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “is outside the applicable guideline range, and is unreasonable, having regard for—

    Source evidence

    Code amendment note
    Subsec. (e)(3). Pub. L. 108–21, § 401(d)(1), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “is outside the applicable guideline range, and is unreasonable, having regard for—

    “(A) the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title; and “(B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or”.

    Enacted provision · exact public law section
    (1) Review of departures.— Section 3742(e)(3) of title 18, United States Code, is amended to read as follows: “(3) is outside the applicable guideline range, and “(A) the district court failed to provide the written statement of reasons required by section 3553(c); “(B) the sentence departs from the applicable guideline range based on a factor that— “(i) does not advance the objectives set forth in section 3553(a)(2); or “(ii) is not authorized under section 3553(b); or “(iii) is not justified by the facts of the case; or “(C) the sentence departs to an unreasonable degree from the applicable guidelines range, having regard for the factors to be considered in imposing a sentence, as set forth in section 3553(a) of this title and the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or” .

  31. Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003

    Pub. L. 108–21 § 401(d)(3)(A) · 117 Stat. 650

    Struck · 18 U.S.C. § 3742(f)

    Pub. L. 108–21, § 401(d)(3)(A), struck out “the sentence” before dash at end of introductory provisions

    Source evidence

    Code amendment note
    Subsec. (f). Pub. L. 108–21, § 401(d)(3)(A), struck out “the sentence” before dash at end of introductory provisions.

    Enacted provision · exact public law section
    (A) The first paragraph of section 3742(f) of title 18, United States Code, is amended by striking “the sentence”;

  32. Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003

    Pub. L. 108–21 § 401(d)(3)(B) · 117 Stat. 650

    Inserted · 18 U.S.C. § 3742(f)(1)

    Pub. L. 108–21, § 401(d)(3)(B), inserted “the sentence” before “was imposed”

    Source evidence

    Code amendment note
    Subsec. (f)(1). Pub. L. 108–21, § 401(d)(3)(B), inserted “the sentence” before “was imposed”.

    Enacted provision · exact public law section
    (B) Section 3742(f)(1) of title 18, United States Code, is amended by inserting “the sentence” before “was imposed”;

  33. Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003

    Pub. L. 108–21 § 401(d)(3)(C) · 117 Stat. 650

    Amended · 18 U.S.C. § 3742(f)(2)

    Pub. L. 108–21, § 401(d)(3)(C), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “is outside the applicable guideline range and is unreasonable or was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable, it shall state specific reasons for its conclusions and—

    Source evidence

    Code amendment note
    Subsec. (f)(2). Pub. L. 108–21, § 401(d)(3)(C), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “is outside the applicable guideline range and is unreasonable or was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable, it shall state specific reasons for its conclusions and—

    “(A) if it determines that the sentence is too high and the appeal has been filed under subsection (a), it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate; “(B) if it determines that the sentence is too low and the appeal has been filed under subsection (b), it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate;”.

    Enacted provision · exact public law section
    (C) Section 3742(f)(2) of title 18, United States Code, is amended to read as follows: “(2) the sentence is outside the applicable guideline range and the district court failed to provide the required statement of reasons in the order of judgment and commitment, or the departure is based on an impermissible factor, or is to an unreasonable degree, or the sentence was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable, it shall state specific reasons for its conclusions and— “(A) if it determines that the sentence is too high and the appeal has been filed under subsection (a), it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate, subject to subsection (g); “(B) if it determines that the sentence is too low and the appeal has been filed under subsection (b), it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate, subject to subsection (g);” ; and

  34. Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003

    Pub. L. 108–21 § 401(d)(3)(D) · 117 Stat. 650

    Inserted · 18 U.S.C. § 3742(f)(3)

    Pub. L. 108–21, § 401(d)(3)(D), inserted “the sentence” before “is not described”

    Source evidence

    Code amendment note
    Subsec. (f)(3). Pub. L. 108–21, § 401(d)(3)(D), inserted “the sentence” before “is not described”.

    Enacted provision · exact public law section
    (D) Section 3742(f)(3) of title 18, United States Code, is amended by inserting “the sentence” before “is not described”.

  35. Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003

    Pub. L. 108–21 § 401(e) · 117 Stat. 650

    1. Added · 18 U.S.C. § 3742(g)(i)

      Pub. L. 108–21, § 401(e), added subsec. (g)

    2. Redesignated · 18 U.S.C. § 3742(g)(i)

      Pub. L. 108–21, § 401(e), redesignated former subsecs. (g) and (h) as (h) and (i), respectively

    Source evidence

    Code amendment note
    Subsecs. (g) to (i). Pub. L. 108–21, § 401(e), added subsec. (g) and redesignated former subsecs. (g) and (h) as (h) and (i), respectively.

    Enacted provision · exact public law section
    (e) Imposition of Sentence Upon Remand.— Section 3742 of title 18, United States Code, is amended by redesignating subsections (g) and (h) as subsections (h) and (i) and by inserting the following after subsection (f): “(g) Sentencing Upon Remand.— A district court to which a case is remanded pursuant to subsection (f)(1) or (f)(2) shall resentence a defendant in accordance with section 3553 and with such instructions as may have been given by the court of appeals, except that— “(1) In determining the range referred to in subsection 3553(a)(4), the court shall apply the guidelines issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, and that were in effect on the date of the previous sentencing of the defendant prior to the appeal, together with any amendments thereto by any act of Congress that was in effect on such date; and “(2) The court shall not impose a sentence outside the applicable guidelines range except upon a ground that— “(A) was specifically and affirmatively included in the written statement of reasons required by section 3553(c) in connection with the previous sentencing of the defendant prior to the appeal; and “(B) was held by the court of appeals, in remanding the case, to be a permissible ground of departure.” .

  36. Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003

    Pub. L. 108–21 § 401(f) · 117 Stat. 650

    Added · 18 U.S.C. § 3742(j)

    Pub. L. 108–21, § 401(f), added subsec. (j)

    Source evidence

    Code amendment note
    Subsec. (j). Pub. L. 108–21, § 401(f), added subsec. (j).

    Enacted provision · exact public law section
    (f) Definitions.— Section 3742 of title 18, United States Code, as amended by subsection (e), is further amended by adding at the end the following: “(j) Definitions.— For purposes of this section— “(1) a factor is a ‘permissible’ ground of departure if it— “(A) advances the objectives set forth in section 3553(a)(2); and “(B) is authorized under section 3553(b); and “(C) is justified by the facts of the case; and “(2) a factor is an ‘impermissible’ ground of departure if it is not a permissible factor within the meaning of subsection (j)(1).” .

43 of 43 references resolved to an enrolled provision

Editorial Notes

References in Text

Section 3563(b)(6) or (b)(11), referred to in subsecs. (a)(3) and (b)(3), was renumbered section 3563(b)(5) or (b)(10) by Pub. L. 104–132, title II, § 203(2)(B), , 110 Stat. 1227.

The Federal Rules of Criminal Procedure, referred to in subsec. (c), are set out in the Appendix of this title.

Constitutionality

For information regarding the constitutionality of certain provisions of this section, as added and amended by section 401(d)(2), (e) of Pub. L. 108–21, see the Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court on the Constitution Annotated website, constitution.congress.gov.

Amendments1986–2003 · 6 rounds

2003

Subsec. (e). Pub. L. 108–21, § 401(d)(2), in concluding provisions, substituted “, except with respect to determinations under subsection (3)(A) or (3)(B), shall give due deference to the district court’s application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court’s application of the guidelines to the facts” for “shall give due deference to the district court’s application of the guidelines to the facts”.

Subsec. (e)(3). Pub. L. 108–21, § 401(d)(1), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “is outside the applicable guideline range, and is unreasonable, having regard for—

“(A) the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title; and

“(B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or”.

Subsec. (f). Pub. L. 108–21, § 401(d)(3)(A), struck out “the sentence” before dash at end of introductory provisions.

Subsec. (f)(1). Pub. L. 108–21, § 401(d)(3)(B), inserted “the sentence” before “was imposed”.

Subsec. (f)(2). Pub. L. 108–21, § 401(d)(3)(C), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “is outside the applicable guideline range and is unreasonable or was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable, it shall state specific reasons for its conclusions and—

“(A) if it determines that the sentence is too high and the appeal has been filed under subsection (a), it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate;

“(B) if it determines that the sentence is too low and the appeal has been filed under subsection (b), it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate;”.

Subsec. (f)(3). Pub. L. 108–21, § 401(d)(3)(D), inserted “the sentence” before “is not described”.

Subsecs. (g) to (i). Pub. L. 108–21, § 401(e), added subsec. (g) and redesignated former subsecs. (g) and (h) as (h) and (i), respectively.

Subsec. (j). Pub. L. 108–21, § 401(f), added subsec. (j).

1994

Subsec. (b). Pub. L. 103–322 struck out comma after “Government” in introductory provisions.

1990

Subsec. (b). Pub. L. 101–647, § 3501, struck out “, with the personal approval of the Attorney General or the Solicitor General” after “The Government” in introductory provisions and inserted at end “The Government may not further prosecute such appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General.”

Subsec. (g). Pub. L. 101–647, § 3503, inserted “(except for the requirement of approval by the Attorney General or the Solicitor General in the case of a Government appeal)” after “and this section shall apply”.

1988

Subsec. (a)(2). Pub. L. 100–690, § 7103(a)(1), struck out “issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)” after “guidelines”.

Subsec. (a)(3). Pub. L. 100–690, § 7103(a)(2), added par. (3) and struck out former par. (3) which read as follows: “was imposed for an offense for which a sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1), and the sentence is greater than—

“(A) the sentence specified in the applicable guideline to the extent that the sentence includes a greater fine or term of imprisonment or term of supervised release than the maximum established in the guideline, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline; and

“(B) the sentence specified in a plea agreement, if any, under Rule 11(e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure; or”.

Subsec. (a)(4). Pub. L. 100–690, § 7103(a)(4), added par. (4) and struck out former par. (4) which read as follows: “was imposed for an offense for which no sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and is plainly unreasonable or greater than the sentence specified in a plea agreement under Rule 11(e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure.”

Subsec. (b). Pub. L. 100–690, § 7103(a)(5), inserted “, with the personal approval of the Attorney General or the Solicitor General,” after “The Government” in introductory provisions, and struck out concluding provisions which read as follows: “and the Attorney General or the Solicitor General personally approves the filing of the notice of appeal.”

Subsec. (b)(2). Pub. L. 100–690, § 7103(a)(1), struck out “issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)” after “guidelines”.

Subsec. (b)(3). Pub. L. 100–690, § 7103(a)(3), added par. (3) and struck out former par. (3) which read as follows: “was imposed for an offense for which a sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1), and the sentence is less than—

“(A) the sentence specified in the applicable guideline to the extent that the sentence includes a lesser fine or term of imprisonment or term of supervised release than the minimum established in the guideline, or includes a less limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the minimum established in the guideline; and

“(B) the sentence specified in a plea agreement, if any, under Rule 11(e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure; or”.

Subsec. (b)(4). Pub. L. 100–690, § 7103(a)(5)(A), added par. (4) and struck out former par. (4) which read as follows: “was imposed for an offense for which no sentencing guideline has been issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and is plainly unreasonable or less than the sentence specified in a plea agreement under Rule 11(e)(1)(B) or (e)(1)(C) of the Federal Rules of Criminal Procedure;”.

Subsec. (c). Pub. L. 100–690, § 7103(a)(8), added subsec. (c). Former subsec. (c) redesignated (d).

Subsec. (d). Pub. L. 100–690, § 7103(a)(8), redesignated former subsec. (c) as (d). Former subsec. (d) redesignated (e).

Pub. L. 100–690, § 7103(a)(6), (7), substituted “applicable guideline range” for “range of the applicable sentencing guideline” in par. (3) and inserted “and shall give due deference to the district court’s application of the guidelines to the facts” after “are clearly erroneous” in concluding provisions.

Subsec. (e). Pub. L. 100–690, § 7103(a)(8), redesignated former subsec. (d) as (e). Former subsec. (e) redesignated (f).

Subsec. (e)(2). Pub. L. 100–690, § 7103(a)(6), substituted “applicable guideline range” for “range of the applicable sentencing guideline”.

Subsecs. (f), (g). Pub. L. 100–690, § 7103(a)(8), redesignated former subsecs. (e) and (f) as (f) and (g), respectively.

Subsec. (h). Pub. L. 100–690, § 7103(a)(9), added subsec. (h).

1987

Subsec. (a)(4). Pub. L. 100–182, § 5(1), substituted “and is plainly unreasonable or greater than the sentence specified in a plea agreement under” for “and is greater than the sentence specified in a plea agreement, if any, under”.

Subsec. (b)(4). Pub. L. 100–182, § 5(2), substituted “and is plainly unreasonable or less than the sentence specified in a plea agreement under” for “and is less than the sentence specified in a plea agreement, if any, under”.

Subsec. (d)(4). Pub. L. 100–182, § 5(3), added par. (4).

Subsec. (e)(2). Pub. L. 100–182, § 5(4), inserted “or was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable” in introductory provisions.

Subsec. (e)(2)(A), (B). Pub. L. 100–182, § 5(5), substituted “and” for “the court shall” before “remand”.

Subsec. (e)(3). Pub. L. 100–182, § 6, amended par. (3) generally. Prior to amendment, par. (3) read as follows: “was not imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, and is not unreasonable, it shall affirm the sentence.”

Subsec. (f). Pub. L. 100–182, § 4, added subsec. (f).

1986

Subsec. (e)(1). Pub. L. 99–646, § 73(a)(1), substituted provision directing the court to remand the case for further sentencing proceedings with such instructions as the court considers appropriate, for provision directing the court to remand the case for further sentencing proceedings or correct the sentence.

Subsec. (e)(2)(A). Pub. L. 99–646, § 73(a)(2), substituted provision directing the court to remand the case for further sentencing proceedings with such instructions as the court considers appropriate for provision directing the court to remand the case for imposition of a lesser sentence, remand the case for further sentencing proceedings, or impose a lesser sentence.

Subsec. (e)(2)(B). Pub. L. 99–646, § 73(a)(2), substituted provision directing the court to remand the case for further sentencing proceedings with such instructions as the court considers appropriate, for provision directing the court to remand the case for imposition of a greater sentence, remand the case for further sentencing proceedings, or impose a greater sentence.

Statutory Notes and Related Subsidiaries

Change of Name

Words “Magistrate Judge” and “United States magistrate judge” substituted for “Magistrate” and “United States magistrate”, respectively, in subsec. (g) pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of Title 28, Judiciary and Judicial Procedure.

Effective Date of 1987 Amendment

Amendment by Pub. L. 100–182 applicable with respect to offenses committed after , see section 26 of Pub. L. 100–182, set out as a note under section 3006A of this title.

Effective Date

Section effective , and applicable only to offenses committed after the taking effect of this section, see section 235(a)(1) of Pub. L. 98–473, set out as a note under section 3551 of this title.

Credits

1984–2003 · 8 acts
  1. 1984Added Pub. L. 98–473, title II, § 213(a), , 98 Stat. 2011
  2. 1986amended Pub. L. 99–646, § 73(a), , 100 Stat. 3617
  3. 1987Pub. L. 100–182, §§ 4–6, , 101 Stat. 1266, 1267
  4. 1988Pub. L. 100–690, title VII, § 7103(a), , 102 Stat. 4416
  5. 1990Pub. L. 101–647, title XXXV, §§ 3501, 3503, , 104 Stat. 4921
  6. 1990Pub. L. 101–650, title III, § 321, , 104 Stat. 5117
  7. 1994Pub. L. 103–322, title XXXIII, § 330002(k), , 108 Stat. 2140
  8. 2003Pub. L. 108–21, title IV, § 401(d)–(f), , 117 Stat. 670, 671.
Show as published

(Added Pub. L. 98–473, title II, § 213(a), , 98 Stat. 2011; amended Pub. L. 99–646, § 73(a), , 100 Stat. 3617; Pub. L. 100–182, §§ 4–6, , 101 Stat. 1266, 1267; Pub. L. 100–690, title VII, § 7103(a), , 102 Stat. 4416; Pub. L. 101–647, title XXXV, §§ 3501, 3503, , 104 Stat. 4921; Pub. L. 101–650, title III, § 321, , 104 Stat. 5117; Pub. L. 103–322, title XXXIII, § 330002(k), , 108 Stat. 2140; Pub. L. 108–21, title IV, § 401(d)–(f), , 117 Stat. 670, 671.)

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USLM identifier /us/usc/t18/s3742