United States v. Roy David Summers, 893 F.2d 63 (4th Cir. 1990). · Go Syfert
United States v. Roy David Summers, 893 F.2d 63 (4th Cir. 1990). Cases Citing This Book View Copy Cite
201 citation events (8 in the last 25 years) across 16 distinct courts.
Strongest positive: United States v. Johnson (ca4, 2007-07-18)
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Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Johnson
4th Cir. · 2007 · confidence medium
Pre-Booker jurisprudence held that a departure based on age and infirmity (or any disfavored factor) is to be granted only in extraordinary circumstances, that is, when the disfavored factor is present to an exceptional degree or "in some other way that makes the case different from the ordinary case where the factor is present.” United States v. Summers, 893 F.2d 63, 68-69 (4th Cir.1990); United States v. Hairston, 96 F.3d 102, 105-06 (4th Cir.1996) (internal citations omitted).
discussed Cited as authority (rule) United States v. Hammond
E.D. Wis. · 2003 · confidence medium
See Freedman, supra, at 312 (“For example, the criminal history score does not take criminal specialization into account, which for certain categories of crimes such as sex offenses, is a reliable indicator of recidivism.”); see also United States v. Mishoe, 241 F.3d 214, 219 (2d Cir.2001) (stating that sentencing court could consider the amount of drugs involved in the prior offenses, defendant’s role in those offenses, the sentences previously imposed, and the amount of time previously served compared to the sentencing range called for by the guidelines); United States v. Spencer, 25 F…
discussed Cited as authority (rule) United States v. Nelson
E.D. Va. · 2001 · confidence medium
Defendant analogizes the instant case with United States v. Summers, a drug case, where the defendant’s Presen-tence Report reflected a Criminal History Score of thirty-six, Category V, and the court departed downward from the guidelines after excluding traffic offenses because the inclusion of these charges overstated the seriousness of the defendant’s prior record. 893 F.2d 63, 68 (4th Cir.1990).
discussed Cited as authority (rule) United States v. Terry
4th Cir. · 1998 · signal: cf. · confidence medium
Cir. 1996) (permit- ting Government on remand to argue theory not raised at initial sentenc- ing). 11 result under the Guidelines if [the defendant] actually had been con- victed of [the conduct underlying the departure]." United States v. Melton, 970 F.2d 1328, 1334 (4th Cir. 1992); accord United States v. Kikumura, 918 F.2d 1084, 1112 (3d Cir. 1990); Ferra, 900 F.2d at 1063 ; cf. United States v. Summers, 893 F.2d 63, 68 (4th Cir. 1990) (holding that a downward departure should not fall below the sen- tence that would result under the Guidelines absent the conduct underlying the departure).
discussed Cited as authority (rule) United States v. Narkey Keval Terry
4th Cir. · 1998 · signal: cf. · confidence medium
In addition, an upward departure should “not exceed the sentence that would result under the Guidelines if [the defendant] actually had been convicted of [the conduct underlying the departure].” United States v. Melton, 970 F.2d 1328, 1334 (4th Cir.1992); accord United States v. Kikumura, 918 F.2d 1084, 1112 (3d Cir.1990); Ferro, 900 F.2d at 1063 ; cf. United States v. Summers, 893 F.2d 63, 68 (4th Cir.1990) (holding that a downward departure should not fall below the sentence that would result under the Guidelines absent the conduct underlying the departure).
discussed Cited as authority (rule) United States v. Mason
4th Cir. · 1997 · confidence medium
United States v. Summers, 893 F.2d 63, 69 (4th Cir. 1990); see U.S.S.G. § 5H1.1 ("Age (including youth) is not ordi- narily relevant in determining whether a sentence should be outside the applicable guideline range.
discussed Cited as authority (rule) United States v. Michael Andrew Mason, United States of America v. Michael Andrew Mason
4th Cir. · 1997 · confidence medium
United States v. Summers, 893 F.2d 63, 69 (4th Cir.1990); see U.S.S.G. § 5H1.1 ("Age (including youth) is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.
discussed Cited as authority (rule) United States v. McHan
4th Cir. · 1996 · confidence medium
See McHan I, 920 F.2d at 247-48 ; United States v. Van Dyke, 895 F.2d 984, 986 (4th Cir.), cert. denied, 498 U.S. 838 (1990); United States v. Summers, 893 F.2d 63, 66 (4th Cir. 1990); Cf. United States v. Rybicki, No. 94-5360, ___ F.3d ___, slip op. at 3 (4th Cir. Sept. 26, 1996). 17 The Sentencing Guidelines expressly permit district courts to give sentencing credit only for terms of imprisonment"result[ing] from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense" if the previous term of imprisonment is "undischarged." U.S.S.G…
discussed Cited as authority (rule) United States v. Charles William McHan United States of America v. Charles William McHan (2×)
4th Cir. · 1996 · confidence medium
See McHan I, 920 F.2d at 247-48 ; United States v. Van Dyke, 895 F.2d 984, 986 (4th Cir.), cert. denied, 498 U.S. 838 , 111 S.Ct. 112 , 112 L.Ed.2d 82 (1990); United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990); Cf. United States v. Rybicki, 96 F.3d 754, 757 (4th Cir.1996).
discussed Cited as authority (rule) United States v. Hardy
4th Cir. · 1996 · confidence medium
Although the sentencing court is generally afforded broad discretion in its decision to depart upward from the sentencing guidelines, see United States v. Summers, 893 F.2d 63, 68 (4th Cir. 1990), there is an abuse of discretion when the sentencing court's exercise is flawed by erroneous factual or legal premises.
discussed Cited as authority (rule) United States v. Howard Hardy
4th Cir. · 1996 · confidence medium
Although the sentencing court is generally afforded broad discretion in its decision to depart upward from the sentencing guidelines, see United States v. Summers, 893 F.2d 63, 68 (4th Cir.1990), there is an abuse of discretion when the sentencing court's exercise is flawed by erroneous factual or legal premises.
cited Cited as authority (rule) United States v. Murchison
4th Cir. · 1996 · confidence medium
United States v. Adkins, 937 F.2d 947, 952 (4th Cir. 1991); United States v. Summers, 893 F.2d 63, 67 (4th Cir. 1990).
cited Cited as authority (rule) United States v. Robert Jerome Murchison
4th Cir. · 1996 · confidence medium
United States v. Adkins, 937 F.2d 947, 952 (4th Cir.1991); United States v. Summers, 893 F.2d 63, 67 (4th Cir.1990).
discussed Cited as authority (rule) United States v. Michael John Goossens
4th Cir. · 1996 · confidence medium
See, e.g., United States v. Hummer, 916 F.2d 186, 192 (4th Cir.1990) (reviewing sentence above guideline imprisonment range), cert. denied, 499 U.S. 970 , 111 S.Ct. 1608 , 113 L.Ed.2d 670 (1991); United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990) (reviewing sentence below guideline imprisonment range).
discussed Cited as authority (rule) United States v. Bailey
4th Cir. · 1996 · confidence medium
In departing downward under § 4A1.3, the proper procedure is to "use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as appli- cable." USSG § 4A1.3; United States v. Summers, 893 F.2d 63, 68 (4th Cir. 1990).
discussed Cited as authority (rule) United States v. Timothy Dwayne Bailey, United States of America v. Timothy Dwayne Bailey
4th Cir. · 1996 · confidence medium
In departing downward under § 4A1.3, the proper procedure is to "use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable." USSG § 4A1.3; United States v. Summers, 893 F.2d 63, 68 (4th Cir.1990).
discussed Cited as authority (rule) United States v. Scotty Roach, United States of America v. Scotty Roach
4th Cir. · 1995 · confidence medium
We find that the district court was well aware of its discretion in sentencing Roach, but simply did not accept that Roach's argument was "not adequately taken into consideration by the Sentencing Commission." United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990) (citing 18 U.S.C.A.
cited Cited as authority (rule) United States v. Donald Robert Shiflett
4th Cir. · 1995 · confidence medium
United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990).
cited Cited as authority (rule) United States v. William Wright, Jr., United States of America v. William Wright, Jr.
4th Cir. · 1994 · confidence medium
Sec. 5H1.1, United States v. Summers, 893 F.2d 63, 69 (4th Cir.1990), employment related contributions, and prior good works of defendants, Sec. 5H1.11, United States v. DeMasi, 1994 U.S.App.
discussed Cited as authority (rule) United States v. Stephen Earl Pollard, A/K/A James Earl Edwards, United States of America v. Stephen Earl Pollard, A/K/A James Earl Edwards
4th Cir. · 1994 · confidence medium
The district court eventually departed downward under guideline section 4A1.3 from criminal history category VI to category III and imposed a sentence of 262 months. 12 Departures are reviewed under the test set out in United States v. Summers, 893 F.2d 63, 66-67 (4th Cir.1990), and United States v. Hummer, 916 F.2d 186, 192 (4th Cir.1990), cert. denied, 499 U.S. 970 (1991).
discussed Cited as authority (rule) United States v. Anthony R. Weddle, United States of America v. Anthony R. Weddle (2×)
4th Cir. · 1994 · confidence medium
In United States v. Summers, 893 F.2d 63, 68 (4th Cir.1990), we held: It is apparent from the language of U.S.S.G. § 4A1.1, as well as from the commentary, that the Commission recognized the likelihood that a defendant would incur criminal history points under both subsections [U.S.S.G. § 4Al.l(d) and (e) ], as well as under one or more of subsections (a)-(c).
discussed Cited as authority (rule) United States v. Maurice Johnson
4th Cir. · 1994 · confidence medium
Sec. 5H1.1 (Nov.1992), expressly provides that "age (including youth) is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." See also United States v. Summers, 893 F.2d 63, 69 (4th Cir.1990)
discussed Cited as authority (rule) United States v. Freedlander (2×) also: Cited "see"
E.D. Va. · 1993 · confidence medium
United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990). 11 If the court determines that the circumstance was not, it must next engage in a factfinding mission to determine if the circumstance is supported by facts in the case.
discussed Cited as authority (rule) United States v. Lambert
5th Cir. · 1993 · confidence medium
Cir. 1991); United States v. Johnson, 934 F.2d 1237, 1239 (11th Cir. 1991); United States v. Lassiter, 929 F.2d 267, 270 (6th Cir. 1991); United States v. Thomas, 906 F.2d 323, 329 (7th Cir. 1990); United States v. Summers, 893 F.2d 63, 68 (4th Cir. 1990); United States v. Coe, 891 F.2d 405, 412-14 (2d Cir. 1989). 7 In United States v. Harvey,6 this court declined to compel adherence to the procedure recognized in Lopez, characterizing the earlier case as "narrow" and "confined to those cases with 'low criminal history scores.'" 877 F.2d at 1306.
discussed Cited as authority (rule) United States v. Audley E. McKelvey Jr.
6th Cir. · 1993 · confidence medium
See, e.g., United States v. Guajardo, 950 F.2d 203, 208 (5th Cir.1991), cert. denied, 112 S.Ct. 1773 (1992); United States v. Carey, 895 F.2d 318, 324 (7th Cir.1990); United States v. Summers, 893 F.2d 63, 68-69 (4th Cir.1990). 63 Based on the foregoing, we note that, in exceptional cases, each of these provisions allow for departures.
discussed Cited as authority (rule) U.S. v. Madison
5th Cir. · 1993 · confidence medium
Since this statement was not included in the reasons for sentence entered into the record, we consider it as superfluous verbiage. 9 consideration under the guidelines." Id. (citing United States v. Summers, 893 F.2d 63, 69 (4th Cir. 1990)).
cited Cited as authority (rule) United States of America, Cross-Appellant v. Shenna Madison, Cross-Appellee
5th Cir. · 1993 · confidence medium
Accordingly, “the circumstance of being young is not a permissible consideration under the guidelines.” Id. (citing United States v. Summers, 893 F.2d 63, 69 (4th Cir.1990)).
discussed Cited as authority (rule) United States v. Larry Alan Cox
4th Cir. · 1993 · confidence medium
This was sufficient notice under Burns v. United States, 59 U.S.L.W. 4625 , 4627 (U.S. 1991). 6 Because guideline section 4A1.3 authorizes a departure when a defendant's criminal history category does not adequately reflect the seriousness of his past criminal conduct or the likelihood that he will commit further crimes, United States v. Summers, 893 F.2d 63, 67 (4th Cir. 1990), we review only the determination that a departure was necessary in this case and the extent of the departure.
discussed Cited as authority (rule) United States v. David Lambert
5th Cir. · 1993 · confidence medium
See Taylor v. United States, 493 U.S. 906 , 110 S.Ct. 265 , 107 L.Ed.2d 215 (1989) (Stevens, J., concurring in the denial of cert.) (agreeing with Lopez)', United States v. Taylor, 937 F.2d 676, 683 (D.C.Cir.1991); United States v. Johnson, 934 F.2d 1237, 1239 (11th Cir.1991); United States v. Lassiter, 929 F.2d 267, 270 (6th Cir.1991); United States v. Thomas, 906 F.2d 323, 329 (7th Cir.1990); United States v. Summers, 893 F.2d 63, 68 (4th Cir.1990); United States v. Coe, 891 F.2d 405, 412-14 (2d Cir.1989).
discussed Cited as authority (rule) United States v. Ernesto Orlando Lanza-Chan
4th Cir. · 1993 · confidence medium
United States v. Summers, 893 F.2d 63, 67 (4th Cir. 1990). " '[Yet] our deference depends upon the district court's providing a reasoned statement of the specific reasons for its departure in language relating to the Guidelines....' " United States v. Rusher, 966 F.2d 868 , 882 (4th Cir.) (quoting United States v. Kennedy, 893 F.2d 825, 827 (6th Cir. 1990)), cert. denied, 113 S. Ct. 351 (1992). 16 The purpose of Rusher 's "reasoned statement" requirement stems from the policy concerns that underlay the creation of the sentencing guidelines.
cited Cited as authority (rule) United States v. Reaves
E.D. Pa. · 1993 · confidence medium
Defendant states that he is entitled to a downward departure as these “minor offenses ‘exaggerate’ his criminal history score” citing United States v. Summers, 893 F.2d 63, 67 (4th Cir.1990).
cited Cited as authority (rule) United States v. Willis Ray Cash
4th Cir. · 1992 · confidence medium
United States v. Summers, 893 F.2d 63, 67 (4th Cir.1990).
cited Cited as authority (rule) United States v. David Ellis, A/K/A Tree, United States of America v. Bernadell Manago, A/K/A Heaven, United States of America v. Wayne Johnson, United States of America v. Wayne Johnson
4th Cir. · 1992 · confidence medium
United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990).
discussed Cited as authority (rule) United States v. Danny Ray Hall (2×)
4th Cir. · 1992 · confidence medium
The first inquiry in determining if departure on a given basis is appropriate, then, is to determine whether the Sentencing Commission adequately considered the *864 circumstance in formulating the sentencing guidelines; if the Commission adequately-considered the factor, departure on that basis is improper. 18 U.S.C.A. § 3553 (b); United States v. Summers, 893 F.2d 63, 65-66 (4th Cir.1990).
cited Cited as authority (rule) United States v. Ellis
4th Cir. · 1992 · confidence medium
United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990).
discussed Cited as authority (rule) United States v. Jonathan Craig Songer
4th Cir. · 1992 · confidence medium
This Court uses three levels of review to determine whether departure from the guidelines sentencing range is reasonable: 15 1.A district court's determination that the guidelines fail to take into account a relevant factor is reviewed de novo. 16 2.A district court's determination that such a factor exists in a particular case is reviewed under the clearly erroneous standard. 17 3.A district court's determination that the factor warrants departure and the extent of that departure are reviewed under the abuse of discretion standard. 18 See United States v. Summers, 893 F.2d 63, 66-67 (4th Cir.…
discussed Cited as authority (rule) United States v. David Lambert (2×)
5th Cir. · 1992 · confidence medium
Jones, 905 F.2d at 870 (footnote omitted). 9 See United States v. Taylor, 937 F.2d 676, 683 (D.C.Cir.1991); United States v. Johnson, 934 F.2d 1237, 1239 (11th Cir.1991); United States v. Lassiter, 929 F.2d 267, 270 (6th Cir.1991); United States v. Thomas, 906 F.2d 323, 329 (7th Cir.1990); United States v. Thomas, 914 F.2d 139, 144 (8th Cir.1990); United States v. Summers, 893 F.2d 63, 68 (4th Cir.1990); United States v. Coe, 891 F.2d 405, 412-14 (2d Cir.1989) 10 See, e.g., Taylor, 937 F.2d at 683 ; United States v. Polanco-Reynoso, 924 F.2d 23, 25 (1st Cir.1991); United States v. Fayette, 895…
cited Cited as authority (rule) United States v. Rusher
4th Cir. · 1992 · confidence medium
United States v. Summers, 893 F.2d 63, 67 (4th Cir.1990).
cited Cited as authority (rule) United States v. Timothy Joe Mullins
4th Cir. · 1992 · confidence medium
United States v. Summers, 893 F.2d 63, 67 (4th Cir. 1990).
discussed Cited as authority (rule) Williams v. United States (2×) also: Cited "see"
SCOTUS · 1992 · confidence medium
This view has carried the day in the Fourth Circuit.See United States v. Summers, 893 F. 2d 63, 64-67 (1990) (opinion of Wilkins, J.). [7] The interrelationship of subsections (a)(4), (b), and (c) of § 3553 compels this conclusion.
discussed Cited as authority (rule) United States v. William Gregorio
1st Cir. · 1992 · confidence medium
Thus, “multiple causation” of victim loss is a “Commission-identified” circumstance in which a downward departure may be warranted. 10 See United States v. Reyes, 927 F.2d 48, 51-52 (1st Cir.1991) (Commission’s identification of a specific basis for departure “forecloses further inquiry” into whether particular circumstance was “adequately considered”); United States v. Summers, 893 F.2d 63, 67 (4th Cir.1990) (Wilkins, J.) (Commission-identified departure “establishes per se” that the particular circumstance may warrant departure); see also U.S.S.G. § 1B1.7 (“the comme…
cited Cited as authority (rule) United States v. Curtis Burdine
4th Cir. · 1991 · confidence medium
United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990).
discussed Cited as authority (rule) United States v. Belton Lamont Platt, United States of America v. Gordon Platt
4th Cir. · 1991 · confidence medium
Appellate courts should use a three-part test when reviewing a departure for reasonableness under 18 U.S.C. § 3742 (e) by determining, first, whether the district court properly determined that the relevant factor was not adequately taken into account by the guidelines; second, whether the district court properly found that the factor existed; and finally, whether the district court properly found that the factor warranted a departure. 3 United States v. Summers, 893 F.2d 63, 66-67 (4th Cir.1990). 15 An aggravating factor which has been identified by the commission is per se proof of the exis…
discussed Cited as authority (rule) United States v. Kevin Carole Williams, United States of America v. Zachary Williams, United States of America v. Zachary Williams
4th Cir. · 1991 · confidence medium
First, the sentencing court must determine that a mitigating circumstance was either not adequately taken into consideration by the Sentencing Commission, or was identified as a ground of departure; second, the court must identify the factual circumstances supporting a departure in the particular case, and the evidence must be "of sufficient importance and magnitude to justify a departure." United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990).
discussed Cited as authority (rule) United States of America, Plaintiff-Appellee-Cross-Appellant v. Carland A. Bowser, Defendant-Appellant-Cross-Appellee (2×)
10th Cir. · 1991 · confidence medium
See Shoupe, 929 F.2d at 120 ; United States v. Summers, 893 F.2d 63, 69 (4th Cir.1990) (nothing extraordinary about being a twenty-three-year-old adult; departure based upon age was unreasonable).
discussed Cited as authority (rule) United States v. Jose Lopez
D.C. Cir. · 1991 · confidence medium
Section 5H1.1 of the Guidelines Manual declares that age is “not ordinarily relevant in determining whether a sentence should be outside the guidelines,” and courts have accordingly shown a reluctance to depart on the basis of age, see, e.g., United States v. Carey, 895 F.2d 318, 324 (7th Cir.1990); United States v. Summers, 893 F.2d 63, 68-69 (4th Cir.1990).
discussed Cited as authority (rule) United States v. Larry Eugene Nicholson
4th Cir. · 1991 · confidence medium
Then, if the District Court identifies one or more aggravating or mitigating circumstances not adequately taken into consideration, it may depart from the sentencing guidelines range only if it further determines that because of the circumstance a sentence different from the guidelines sentence should result. 9 United States v. Summers, 893 F.2d 63, 65-66 (4th Cir.1990). 10 The first issue under review is whether these aggravating factors were adequately incorporated by the sentencing guidelines.
cited Cited as authority (rule) United States v. Edgar Jeffrey Rojas
4th Cir. · 1991 · confidence medium
United States v. Summer, 893 F.2d 63, 66 (4th Cir.1990); 18 U.S.C.
discussed Cited as authority (rule) United States v. Kenneth T. Brooks
4th Cir. · 1991 · confidence medium
United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990). 18 The district court here gave as its essential reason for departing the defendant's unusually distraught emotional condition at the time of the offense.
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellant,
v.
Roy David SUMMERS, Defendant-Appellee
89-5116.
Court of Appeals for the Fourth Circuit.
Jan 2, 1990.
893 F.2d 63
William Graham Otis, Senior Litigation Counsel (Henry E. Hudson, U.S. Atty., on brief) for plaintiff-appellant., James Clyde Clark (Land, Clark, Carroll & Mendelson, on brief) for defendant-appel-lee.
Hall, Wilkins, Winter.
Cited by 125 opinions  |  Published
WILKINS, Circuit Judge:

The United States appeals the sentence imposed on Roy David Summers, contending that the district court erred in granting a downward departure from the appropriate sentencing guidelines range. We vacate the sentence imposed and remand with instructions to impose a sentence consistent with this opinion.

I.

On September 27, 1988, an arrest warrant was served on Roy David Summers after he entered a vehicle parked outside an apartment complex in Fairfax, Virginia. A search of the vehicle resulted in the seizure of three kilograms of cocaine base (crack) and one-half kilogram of cocaine.[*65] A search of the apartment from which Summers exited revealed three mixing bowls containing cocaine residue. A search of Summers’ residence in Forrest-ville, Maryland led to the seizure of $62,686 in cash found under and in a mattress and the seizure of approximately seven kilograms of cocaine from a vehicle parked on his premises. Also recovered from the vehicle were a loaded semi-automatic .45 caliber pistol and 46 rounds of ammunition. [1]

A few months prior to his arrest Summers had purchased three handguns utilizing a Maryland driver’s license bearing the name of “Richard Roy Ray.” To accomplish the purchase Summers signed the name “Richard Ray” to the required form and falsely stated that he had not been convicted of a crime punishable by imprisonment for more than one year. In fact, Summers had a substantial criminal record including violations of law carrying a maximum punishment of more than one year in prison. [2] In addition to several arrests as a juvenile, Summers’ adult criminal record for which there are dispositions included convictions for grand larcenies, possession of narcotics, a weapons violation, driving with a suspended license violations, and probation revocation.

Summers was indicted in federal court in Virginia and Maryland on various drug charges and in federal court in Maryland for the use of a firearm during a drug trafficking crime, for furnishing false identification in acquiring a firearm, and for possession of a firearm by a convicted felon. 18 U.S.C.A. § 924(c)(1) (West Supp. 1989); 18 U.S.C.A. § 922(a)(6) (West Supp. 1989); 18 U.S.C.A. § 922(g)(1) (West Supp. 1989). Pursuant to Rule 20 of the Federal Rules of Criminal Procedure, Summers pled guilty in the Eastern District of Virginia to these various offenses.

Since the offenses were committed after November 1, 1987, Summers’ sentence was governed by the Sentencing Reform Act of 1984, 18 U.S.C.A. §§ 3551 et seq. (West 1985 & Supp.1989), and the sentencing guidelines promulgated by the United States Sentencing Commission. The probation officer preparing the presentence report correctly calculated the guidelines offense level for the narcotics violations to be level 36. She recommended that this be increased by two levels to reflect Summers’ role in the offense, U.S.S.G. § 3Bl.l(a), and decreased by two levels for acceptance of responsibility, U.S.S.G. § 3E1.1, for a net total of offense level 36. Subsequently, the court and the parties agreed that the correct guidelines offense level was 36 and the criminal history category was V, producing a sentencing guidelines range of 292 to 365 months. In addition, because Summers was convicted of use of a firearm during a drug trafficking crime, 18 U.S. C.A. § 924(c)(1) mandated the imposition of a 60-month sentence to be served consecutively to the sentence for the narcotics violation.

The probation officer also correctly calculated Summers’ criminal history category to be V. [3] While Summers did not contest the accuracy of this determination, he urged the district court to depart below the appropriate sentencing guidelines range based on what he styled an “exaggeration” of his criminal history category. At the sentencing hearing, the district court stated that “because of [Summers’] age and because of some of the aggravation, or the increase that has been caused by these driving without a license charges as they relate to [the defendant’s] criminal history” a sentence below the appropriate sentencing guidelines range would be imposed. The court then departed and imposed a sentence of 180 months for the narcotics violations and a consecutive 60-month sentence for the section 924(c)(1) weapons violation.

II.

18 U.S.C.A. § 3553(b) (West Supp.1989) requires a court to impose a sentence with[*66] in the guidelines range “unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” [4] Whether a sentence should be based on a departure envisions a two-prong test. See Wilkins, Sentencing Reform and Appellate Review, 46 Wash. & Lee L.Rev. 429, 438 (1989). The first prong of the test initially requires a determination that a particular aggravating or mitigating circumstance was “not adequately taken into consideration by the Sentencing Commission.” If the court determines that a circumstance was “not adequately taken into consideration,” it must next engage in a fact-finding mission to determine if the circumstance is supported by facts in the particular case under consideration. Then, if the district court identifies one or more aggravating or mitigating circumstances “not adequately taken into consideration,” it may depart from the sentencing guidelines range only if it further determines that because of the circumstance a sentence different from the guidelines sentence “should result.” This second prong of the departure test requires the district court to determine whether the circumstance now identified and found to exist in the particular case is of sufficient importance and magnitude to justify a departure. In many cases a departure will not be warranted even though a circumstance was not “adequately taken into consideration.” This is because a circumstance may be irrelevant for sentencing purposes or, while it may be of sufficient significance for some consideration, it may warrant consideration only when determining the point within the guidelines range where the ultimate sentence is to be fixed. And, in some cases, a circumstance may be determined to exist which standing alone would provide a justifiable basis for departure but may be offset by a competing circumstance so that when considered within the context of a particular case, a departure would not be warranted.

III.

18 U.S.C.A. § 3742(f)(2) (West Supp. 1989) [5] states in pertinent part that “[i]f the court of appeals determines that the sentence ... is outside the applicable guideline range and is unreasonable ... [the court shall] remand the case for further sentencing proceedings with such instructions as the court considers appropriate.... ” Appellate review of the “reasonableness” of the decision to depart [6] encompasses both the reasonableness of whether a departure is warranted, as well as the reasonableness of the amount or extent of departure. Because the statutory standard of “unreasonableness,” standing alone, gives insufficient guidance to promote consistency of appellate decisions, appellate courts must give it a more specific and workable meaning by analogizing it with standards of review traditionally applied.

A standard akin to that used in addressing questions of law should be used when reviewing the initial determination that a mitigating or aggravating circumstance was not “adequately taken into consideration.” United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.1989). This is because 18 U.S.C.A. § 3553(b) specifically confines the district court examination of this issue to the guidelines, policy statements, and official commentary of the Commission. [7] Thus, the district court may not concern itself with background doc[*67] uments considered by the Commission, the extent or adequacy of Commission debate about a particular circumstance, or subjective Commission intent regarding a circumstance. Rather, the district court must limit its examination solely to the language of the Guidelines Manual and the reasonable inferences which may be drawn from it. To assist in this determination, guidance may be found in the language of particular guidelines and accompanying commentary, the general description of the Commission’s approach to the scope of guidelines and departures, and Commission pronouncements on departures interspersed throughout the Guidelines Manual. In commentary accompanying specific guidelines and in policy statements, the Commission has expressly identified circumstances that may warrant a departure, [8] commonly known as “Commission-identified” departures. A second type of departure involves aggravating and mitigating circumstances not specifically identified by the Commission as a potential basis for departure but which the sentencing court has identified as providing a justifiable basis. These may properly be labeled “judicially-created” departures.

The standard of reasonableness on appeal is also applied when reviewing the issue of whether there is sufficient evidence to support a finding that a circumstance on which a departure is based actually exists in the particular case. Here, since the district court is engaged in fact-finding, the appellate court should be more deferential, using a standard of review approximating the clearly erroneous one.

The final issues the appellate court must review under the reasonableness standard are whether the identified departure circumstance “should result” in a sentence above or below the appropriate sentencing guidelines range and the degree or extent of the departure. Once the first prong of the departure test has survived appellate scrutiny, how much leeway should the district court be given when evaluating the significance of a particular circumstance, balancing competing interests and making the judgment call of fixing the actual sentence above or below the appropriate sentencing guidelines range? While the almost unlimited discretion in sentencing possessed by district courts prior to the implementation of the Sentencing Reform Act no longer exists, this decision should not be reversed unless an abuse of discretion occurs.

IV.

Applying this approach we hold that the district court correctly determined that an overstatement of the seriousness of a defendant’s criminal history may be a circumstance “not adequately taken into consideration.”

Our analysis is simplified since the Sentencing Commission has expressly identified overstatement of a defendant’s criminal history category as a circumstance that may warrant a departure. U.S.S.G. § 4A1.3, p.s., states that “[tjhere may be cases where the court concludes that a defendant’s criminal history category significantly over-represents the seriousness of a defendant’s criminal history.... The court may conclude that the defendant’s criminal history was significantly less serious than that of most defendants in the same criminal history category ..., and therefore consider a downward departure from the guidelines.” The existence of this “Commission-identified” departure establishes per se that this circumstance may exist.

Even with a “Commission-identified” departure circumstance, the district court must still determine factually whether such a circumstance actually exists in the case under consideration. Applying the clearly erroneous standard, we cannot say that error was committed by the district court in making this finding.

Although the determination of the district court that some departure “should result” was not an abuse of its discretion and thus was not unreasonable, the extent[*68] of the downward departure was. [9] While a review of the “reasonableness” of the degree or extent of a departure under an abuse of discretion standard may often be difficult, our task here is simplified. In its policy statement on Adequacy of Criminal History Category, the Commission stated, “[i]n considering a departure under this provision, the Commission intends that the court use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable.” U.S.S.G. § 4A1.3, p.s. Thus, while we cannot say the district court acted unreasonably in essentially excluding the driving offenses from the determination of Summers’ criminal history category, the extent of the downward departure should not then fall below the sentencing guidelines range produced by offense level 36 and criminal history category IV, the correct category absent consideration of the driving offenses. See United States v. Jackson, 883 F.2d 1007 (11th Cir.1989); United States v. Lopez, 871 F.2d 513 (5th Cir. 1989). This would have produced a sentencing guidelines range of 262 to 327 months, within which the specific sentence should have been selected, plus 60 months to be served consecutively for the section 924(c)(1) weapons violation.

Therefore, we hold that the departure decision was unreasonable to the extent the sentence was below that which would have resulted had the driving offenses not been included in the criminal history category determination.

V.

Summers also ingeniously argued to the district court and to us that the seriousness of his criminal history was overstated for other reasons. He reasoned that had he not been convicted of the driving offenses, the probationary sentence he was serving for grand larceny would not have been revoked; if it had not been revoked he would not have been incarcerated; if he had not been incarcerated he would not have been paroled; if he had not been paroled he would not have been a parolee when he committed the instant drug and weapons offenses; and if he had not been incarcerated the instant offenses would not have been committed within two years of his being released from custody, all of which contributed another three points to his criminal history score.

We specifically reject this flawed argument which has as its objective the total disregard of U.S.S.G. §§ 4Al.l(d) and (e). [10] The former subsection adds points for a defendant’s commission of an offense while under some form of criminal justice control for a prior offense, while the latter enhances the criminal history score because of the recency of a prior period of incarceration before commission of the instant offense. It is apparent from the language of U.S. S.G. § 4A1.1, as well as from the commentary, that the Commission recognized the likelihood that a defendant would incur criminal history points under both subsections, as well as under one or more of subsections (a)-(c). The fact that this occurs does not mean that the defendant’s criminal history has been overstated. Importantly, points are properly assessed under subsections (d) and (e) regardless of whether the triggering criminal activity was a driving conviction, a more serious offense, or a non-criminal probation violation. The fact remains that Summers committed the instant offenses while on parole and within two years of his release from incarceration, both of which are properly a basis for enhancing his punishment under U.S.S.G. §§ 4Al.l(d) and (e).

VI.

The district court apparently partially based its decision to sentence below the appropriate guidelines range “because of[*69] [Summers'] age.” It did not elaborate on the extent it was departing on the basis of age and we need not attempt to speculate, for regardless of the extent of the departure on the basis of age, it was unreasonable.

The Sentencing Commission expressly addressed the relevance of age as a specific offender characteristic in U.S.S.G. § 5H1.1, p.s. This section reads in part:

Age is not ordinarily relevant in determining whether a sentence should be outside the guidelines.... Age may be a reason to go below the guidelines when the offender is elderly and infirm and where a form of punishment {e.g., home confinement) might be equally efficient as and less costly than incarceration.

(Emphasis in original.) Summers is a 23-year-old adult. There is nothing extraordinary about his age and the district court clearly erred in basing a departure on this factor.

VII.

In conclusion, we hold that while some departure based on a determination that inclusion of the driving offenses resulted in an overstatement of the seriousness of Summers’ criminal history did not constitute reversible error, the extent of the departure was unreasonable. We also hold that the district court clearly erred in partially basing a departure on Summers’ age. Consequently, we vacate the sentence imposed and remand for sentencing within the sentencing guidelines range corresponding to offense level 36, criminal history category IV, in addition to the imposition of the 60-month mandatory sentence for the section 924(c)(1) violation.

VACATED AND REMANDED WITH INSTRUCTIONS.

1

. Summers did not contest the legality of these searches and seizures.

2

. In addition, according to an uncontested statement in the presentence report, Summers is a well-known member of the “Crips,” a notorious Los Angeles street gang which engages in extensive criminal activity, including drug and firearm trafficking and murder.

3

.Summers’ criminal record produced a total of 10 points. See U.S.S.G. § 4A1.1.

4

. See also U.S.S.G. Ch. 1, Pt. A, 4(b) (policy • statement on departures).

5

. Similar language is also found in subsection (e)(3).

6

. Not before us and consequently not addressed is the issue of whether a party may appeal the refusal of a district court to depart. See United States v. Colon, 884 F.2d 1550 (2d Cir.1989); United States v. Franz, 886 F.2d 973 (7th Cir. 1989).

7

.This provision was added to the Sentencing Reform Act by section 3 of the Sentencing Act of 1987, Pub.L. No. 100-182, § 3, 101 Stat. 1266. The legislative intent is succinctly expressed at 133 Cong.Rec. SI6,647-48 (daily ed. Nov. 20, 1987) (statements of Senators Thurmond and Kennedy).

8

. See abo Chapter 5, Part K, of the Sentencing Guidelines.

9

. The sentence of 180 months was 82 months below the bottom of the appropriate sentencing guidelines range resulting after excluding the three driving with a suspended license convictions from the calculation of Summers’ criminal history category.

10

. Even if we were to accept this reasoning as valid, Summers' resulting sentencing guidelines range would have been 210 to 262 months (offense level 36, criminal history category II), plus 60 months for the section 924(c) violation.