United States v. Gregory J. White, 893 F.2d 276 (10th Cir. 1990). · Go Syfert
United States v. Gregory J. White, 893 F.2d 276 (10th Cir. 1990). Cases Citing This Book View Copy Cite
“congress still envisioned that the guidelines would leave considerable discretion in the hands of the sentencing judge”
330 citation events (7 in the last 25 years) across 13 distinct courts.
Strongest positive: United States v. Oscar Marnell St. Julian, Ii, Also Known as Davion Walker, United States of America v. Michael Ladell Sardin (ca10, 1992-06-02)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) United States v. Oscar Marnell St. Julian, Ii, Also Known as Davion Walker, United States of America v. Michael Ladell Sardin (3×) also: Cited as authority (rule)
10th Cir. · 1992 · quote attribution · 1 verbatim quote · confidence high
congress still envisioned that the guidelines would leave considerable discretion in the hands of the sentencing judge
discussed Cited as authority (rule) United States v. Jones
10th Cir. · 2003 · confidence medium
In reviewing the reasonableness of the district court’s degree of departure, we consider the following factors: “ ‘the seriousness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing pattern of the Guidelines, the policy statements contained in the Guidelines, and the need to avoid unwarranted sentencing disparities.’ ” Collins, 122 F.3d at 1308 -09 (quoting United States v. White, 893 F.2d 276, 278 (10th Cir.1990)) (citing 18 U.S.C. § 3742 (e) and 18 U.S.C. § 3553 (a)).
discussed Cited as authority (rule) United States v. Shores
10th Cir. · 2002 · confidence medium
In making a determination as to the final question, whether the degree of departure is reasonable, we consider the district court’s reasons for imposing the particular sentence together with factors such as: “the seriousness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing pattern of the Guidelines, the policy statements contained in the Guidelines, and the need to avoid unwarranted sentencing disparities.” Collins, 122 F.3d at 1308 -09 (quoting United States v. White, 893 F.2d 276, 278 (10th Cir.1990)).
discussed Cited as authority (rule) United States v. Walker
10th Cir. · 2002 · confidence medium
The district court may consider factors such as: “the seriousness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing pattern of the Guidelines, the policy statements contained in the Guidelines, and the need to avoid unwanted sentencing disparities.” Collins, 122 F.3d at 1308 -9 (quoting United States v. White, 893 F.2d 276, 278 (10th Cir.1990)). *1174 We REVERSE and REMAND to the district court with instructions to vacate the sentence and resentence in a manner consistent with this opinion.
discussed Cited as authority (rule) United States v. Siany
10th Cir. · 2001 · confidence medium
In making this determination, we consider the district court’s reasons for imposing the particular sentence together with factors such as: “the seriousness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing pattern of the Guidelines, the policy statements contained in the Guidelines, and the need to avoid unwarranted sentencing disparities.” Collins, 122 F.3d at 1308 -09 (quoting United States v. White, 893 F.2d 276, 278 (10th Cir.1990) (citing 18 U.S.C. § 3742 (e)(3) and 18 U.S.C. § 3553 (a))).
discussed Cited as authority (rule) United States v. Neal (2×) also: Cited "see"
10th Cir. · 2001 · confidence medium
In so doing, we “ascertain whether the circumstances cited by the district court to justify departure actually exist in the instant case,” requiring us to “search only for a sufficient factual basis to justify departure.” United States v. White, 893 F.2d 276, 278 (10th Cir.1990).
discussed Cited as authority (rule) United States of America, Plaintiff-Appellant-Cross-Appellee v. Brenda Lee Working, Defendant-Appellee-Cross-Appellant (2×)
9th Cir. · 2000 · confidence medium
As the Supreme Court said in Solem v. Helm, 463 U.S. 277 , 290 n.16 (1983), "[I]t is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence. " In Pena, the Tenth Circuit put it this way: 53 In deciding whether the district court's reasoning comports with these statutory considerations, it is necessary to "leave considerable discretion in the hands of the sentencing judge." The issue is not whether we would have departed to the exact extent that the sentencing judge did, but whether the judge's [explanati…
discussed Cited as authority (rule) United States v. Bartsma
10th Cir. · 1999 · confidence medium
To adequately review a departure decision, we must examine the district court’s stated reasons for the degree of departure, see United States v. Pool, 937 F.2d 1528, 1534 (10th Cir.1991), “together with factors such as: ‘the seriousness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing pattern of the Guidelines, the policy statements contained in the Guidelines, and the need to avoid unwarranted sentencing disparities.’ ” Collins, 122 F.3d at 1308 -09 (quoting United States v. White, 893 F.2d 276, 278 (10th Cir.…
discussed Cited as authority (rule) United States v. Whiteskunk
10th Cir. · 1998 · confidence medium
In making this decision, we consider the district court’s reasons for imposing the particular sentence together with factors such as: “the seriousness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing pattern of the Guidelines, the policy statements contained in the Guidelines, and the need to avoid unwarranted sentencing disparities.” Collins, 122 F.3d at 1308 -09 (quoting United States v. White, 893 F.2d 276, 278 (10th Cir. 1990) (citing 18 U.S.C. § 3742 (e)(3) and 18 U.S.C. § 3553 (a))).
discussed Cited as authority (rule) United States v. Willette Whiteskunk (2×)
10th Cir. · 1998 · confidence medium
In making this decision, we consider the district court’s reasons for imposing the particular sentence together with factors such as: “the seriousness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing pattern of the Guidelines, the policy statements contained in the Guidelines, and the need to avoid unwarranted sentencing disparities.” Collins, 122 F.3d at 1308 -09 (quoting United States v. White, 893 F.2d 276, 278 (10th Cir.1990) (citing 18 U.S.C. § 3742 (e)(3) and 18 U.S.C. § 3553 (a))).
cited Cited as authority (rule) United States v. Wyatt
10th Cir. · 1998 · confidence medium
We also must conduct a “reasonableness review of the degree of departure.” Id. (citing United States v. White, 893 F.2d 276, 278 (10th Cir. 1990)).
cited Cited as authority (rule) United States v. Terry Lee Wyatt
10th Cir. · 1998 · confidence medium
We also must conduct a "reasonableness review of the degree of departure." Id. (citing United States v. White, 893 F.2d 276, 278 (10th Cir.1990)).
discussed Cited as authority (rule) United States v. Forsythe
10th Cir. · 1998 · confidence medium
In determining the degree of departure, the district court should consider "the district court’s proffered justifications as well as such factors as: the seriousness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing pattern of the Guidelines, the policy statements contained in the Guidelines, and the need to avoid unwarranted sentencing disparities." United States v. White, 893 F.2d 276, 278 (10th Cir. 1990) (citing 18 U.S.C. §§ 3742 (e)(3) and 3553(a)).
discussed Cited as authority (rule) United States v. Mark Andrew Forsythe
10th Cir. · 1998 · confidence medium
See United States v. Yates, 22 F.3d 981, 991 (10th Cir.1994) ("[A] district court's justification for an upward departure does not by itself supply a rationale for the specific degree of departure selected, and we, as a reviewing court, are not able to supply that rationale."); United States v. Flinn, 987 F.2d 1497, 1502 (10th Cir.1993) ("This circuit has consistently ... reiterated that the district court must specifically articulate reasons for the degree of departure so that the appellate court may properly review the reasonableness of the sentence.... [E]xplanation of why a departure is ma…
discussed Cited as authority (rule) United States v. Collins (2×) also: Cited "see"
10th Cir. · 1997 · confidence medium
In making this determination, we consider the district court’s reasons for imposing the particular sentence together with factors such as: “the seriousness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing pattern of the Guidelines, the policy statements contained in the Guidelines, and the need to avoid unwarranted sentencing disparities.” United States v. White, 893 F.2d 276, 278 (10th Cir. 1990) (citing 18 U.S.C. § 3742 (e)(3) and 18 U.S.C. § 3553 (a)).
discussed Cited as authority (rule) United States v. James Collins (2×) also: Cited "see"
10th Cir. · 1997 · confidence medium
In making this determination, we consider the district court’s reasons for imposing the particular sentence together with factors such as: “the seriousness of the offense, the need for just punishment, deterrence, protection of *1309 the public, correctional treatment, the sentencing pattern of the Guidelines, the policy statements contained in the Guidelines, and the need to avoid unwarranted sentencing disparities.” United States v. White, 893 F.2d 276, 278 (10th Cir.1990) (citing 18 U.S.C. § 3742 (e)(3) and 18 U.S.C. § 3553 (a)).
cited Cited as authority (rule) United States v. Walker
N.D. Okla. · 1997 · confidence medium
United States v. White, 893 F.2d 276, 277-78 (10th Cir.1990).
discussed Cited as authority (rule) United States v. David Tenorio Sablan (2×)
9th Cir. · 1997 · confidence medium
See, e.g., United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.1989) (3-step analysis); United States v. Palinkas, 938 F.2d 456, 461 (4th Cir.1991) (4-step analysis), judgment vacated on other grounds, 503 U.S. 931 , 112 S.Ct. 1464 , 117 L.Ed.2d 610 (1992); United States v. Rodriguez, 882 F.2d 1059, 1067 (6th Cir.1989) (3-step analysis); United States v. Gaddy, 909 F.2d 196, 199 (7th Cir.1990) (similar test); United States v. Lang, 898 F.2d 1378, 1379-80 (8th Cir.1990) (similar test); United States v. White, 893 F.2d 276, 277 (10th Cir.1990) (similar test); United States v. Valle, 929 F.…
discussed Cited as authority (rule) United States v. Earl K. Shumway
10th Cir. · 1997 · confidence medium
Once we determine whether the district court has abused its discretion in departing from the Guidelines, we review the departure for reasonableness. 18 U.S.C. § 3742 (e)(3); United States v. White, 893 F.2d 276, 278 (10th Cir.1990); cf. Williams v. United States, 503 U.S. 193, 204 , 112 S.Ct. 1112, 1121 , 117 L.Ed.2d 341 (1992) (even if district court departs from the Guidelines based on an erroneous factor, appellate court may affirm the sentence if it is satisfied the district court would have made the same sentence without the erroneous factor, and the degree of departure is reasonable).
discussed Cited as authority (rule) United States v. Shumway
10th Cir. · 1997 · confidence medium
Once we determine whether the district court has abused its discretion in departing from the Guidelines, we review the departure for reasonableness. 18 U.S.C. § 3742 (e)(3); United States v. White, 893 F.2d 276, 278 (10th Cir. 1990); cf. Williams v. United States, 503 U.S. 193, 204 (1992) (even if district court departs from the Guidelines based on an erroneous factor, appellate court may affirm the sentence if it is satisfied the -34- district court would have made the same sentence without the erroneous factor, and the degree of departure is reasonable).
cited Cited as authority (rule) United States v. Valdez
10th Cir. · 1996 · confidence medium
United States v. White, 893 F.2d 276, 278 (10th Cir.1990).
cited Cited as authority (rule) United States v. Sealander
10th Cir. · 1996 · confidence medium
United States v. White, 893 F.2d 276, 277-78 (10th Cir.1990).
discussed Cited as authority (rule) United States v. Dutchie
10th Cir. · 1996 · confidence medium
First, we examine the record "to determine whether the district court properly identified the existence of appropriate circumstances warranting a departure." See United States v. Okane, 52 F.3d 828, 831 (10th Cir.1995)(citing United States v. White, 893 F.2d 276, 277 (10th Cir.1990)).
cited Cited as authority (rule) United States v. Horace Joseph Big Medicine
10th Cir. · 1995 · confidence medium
United States v. Okane, 52 F.3d 828, 831 (10th Cir.1995); United States v. White, 893 F.2d 276, 277 (10th Cir.1990).
discussed Cited as authority (rule) United States v. Jack David Cox (2×) also: Cited "see"
10th Cir. · 1995 · confidence medium
United States v. White, 893 F.2d 276, 277-78 (10th Cir.1990); cf. Williams v. United States, 503 U.S. 193, 201-203 (1992).
discussed Cited as authority (rule) United States v. Jerry Eugene Jolley
10th Cir. · 1995 · confidence medium
United States v. Kelly, 1 F.3d 1137, 1139 (10th Cir.1993) (citing United States v. White, 893 F.2d 276, 277 (10th Cir.1990), and noting that this approach is consistent with Williams v. United States, 503 U.S. 193, 201-03 (1992)).
cited Cited as authority (rule) United States v. Charles J. Bazarian
10th Cir. · 1995 · confidence medium
United States v. White, 893 F.2d 276, 277-78 (10th Cir.1990).
discussed Cited as authority (rule) United States v. Philip Frank Atkinson
10th Cir. · 1995 · confidence medium
"In analyzing the propriety of a district court's decision to depart upward, we apply a three-tiered review process, which we first enunciated in United States v. White, 893 F.2d 276, 277 (10th Cir.1990)." Id. at 831 (footnote omitted); cf. United States v. Warner, 43 F.3d 1335, 1337 (10th Cir.1994) (downward departure).
discussed Cited as authority (rule) United States v. Janis L. Horton
10th Cir. · 1995 · confidence medium
Bowser, 941 F.2d at 1026 . " '[I]n determining the reasonableness of the degree of departure ... we should afford the trial judge due deference and not lightly overturn determinations of the appropriate degree of departure.' " United States v. Russell, 905 F.2d 1450, 1456 (10th Cir.) (quoting United States v. White, 893 F.2d 276, 279 (10th Cir.1990)), cert.denied, 498 U.S. 904 (1990).
discussed Cited as authority (rule) United States v. Vincenzo Anthony Debari
10th Cir. · 1995 · confidence medium
After review under the standards set forth in United States v. White, 893 F.2d 276, 277-78 (10th Cir.1990), we affirm. 2 The parties to this case are familiar with defendant's criminal history and the circumstances underlying his resentencing.
discussed Cited as authority (rule) United States v. Curtis Frank Brooks (2×) also: Cited "see"
10th Cir. · 1995 · confidence medium
United States v. Yates, 22 F.3d 981, 986 (10th Cir.1994); United States v. Tisdale, 7 F.3d 957, 961 (10th Cir.1993), cert. denied, 114 S.Ct. 1201 (1994); United States v. Flinn, 987 F.2d 1497, 1500 (10th Cir.1993); United States v. White, 893 F.2d 276, 277 (10th Cir.1990).
examined Cited as authority (rule) United States v. Robert Dee Okane (8×) also: Cited "see"
10th Cir. · 1995 · confidence medium
DISCUSSION I. 8 In analyzing the propriety of a district court's decision to depart upward, we apply a three-tiered review process, which we first enunciated in United States v. White, 893 F.2d 276, 277 (10th Cir.1990). 2 Under White, step one requires us to examine the record de novo to determine whether the district court properly identified the existence of appropriate circumstances warranting a departure.
discussed Cited as authority (rule) United States v. Jackson
D. Kan. · 1994 · confidence medium
In Maldonado-Campos , the Tenth Circuit laid out the test governing such downward departures: Downward departures based upon criminal history are made pursuant to 18 U.S.C. § 3553 (b) and are reviewed under the same three-part test for evaluating upward departures contained in United States v. White, 893 F.2d 276, 278 (10th Cir.1990) (citations omitted).
cited Cited as authority (rule) United States v. Robert Glenn Wyne
10th Cir. · 1994 · confidence medium
United States v. White, 893 F.2d 276, 277-79 (10th Cir.1990).
cited Cited as authority (rule) United States v. Richard Schock
10th Cir. · 1994 · confidence medium
Julian, 966 F.2d 564, 567 (10th Cir.), cert. denied sub nom, 113 S.Ct. 348 (1992); United States v. White, 893 F.2d 276, 277 (10th Cir.1990).
cited Cited as authority (rule) United States v. Maurice L. Ziegler
10th Cir. · 1994 · confidence medium
Id. (quoting United States v. White, 893 F.2d 276, 278 (10th Cir.1990)).
examined Cited as authority (rule) United States v. Herbert Talmadge Gentry, Jr. (3×)
10th Cir. · 1994 · confidence medium
United States v. White, 893 F.2d 276, 277-78 (10th Cir.1990).
discussed Cited as authority (rule) United States v. Michael Alan Brown
10th Cir. · 1994 · confidence medium
In reviewing upward departures, we apply the analysis we set forth in United States v. White, 893 F.2d 276, 277-78 (10th Cir.1990). 15 Under White, we first review de novo whether the district court justified its decision to depart by citing appropriate circumstances.
discussed Cited as authority (rule) United States v. Charles Matthew Yates
10th Cir. · 1994 · confidence medium
Because the two-part Williams test is encapsulated in the three-step analysis we set forth in United States v. White, 893 F.2d 276, 277-78 (10th Cir.1990), we continue to engage in the three-step review pronounced in White.
discussed Cited as authority (rule) United States v. Edward Scott Flinn
10th Cir. · 1994 · confidence medium
We reviewed Defendant’s sentence under the three-step analysis of upward departures announced in United States v. White, 893 F.2d 276, 277-78 (10th Cir.1990): (1) de novo review of whether the circumstances cited by the district court warrant departure, (2) clearly erroneous review of the factual determinations underlying the decision to depart, and (3) reasonableness review of the degree of departure.
discussed Cited as authority (rule) United States v. Sandra Clark Martin Braggs
10th Cir. · 1994 · confidence medium
Accordingly, in Pena it was incumbent upon us to review the district court's decision to depart from the Guidelines and the degree of departure, whereas here we must determine the potentially dispositive issue of whether the district court believed that it was without the discretion to depart from the Guidelines given the facts before it or, alternatively, whether it believed it had the discretion to depart from the Guidelines and simply declined to depart given the facts before it. 20 We are mindful that "[t]he reasoning behind a court's departure decision should be clearly stated." United St…
discussed Cited as authority (rule) United States v. Calvin Hunt
10th Cir. · 1994 · confidence medium
We review de novo whether the circumstances cited by the district court justify a departure from the guidelines, United States v. White, 893 F.2d 276, 277-78 (10th Cir.1990), and we affirm. 4 Subsection (a) of U.S.S.G. 4A1.3 provides that departure may be warranted if a prior sentence that is not used in computing criminal history indicates that a defendant's criminal history does not adequately reflect the seriousness of defendant's past criminal conduct or likelihood that he will commit other crimes.
cited Cited as authority (rule) United States v. Randy Lee Ray
10th Cir. · 1993 · confidence medium
United States v. White, 893 F.2d 276, 277-78 (10th Cir.1990).
cited Cited as authority (rule) United States v. Cheryl D. Harrison
10th Cir. · 1993 · confidence medium
Maldonado-Campos, 920 F.2d at 719 -20 (citing United States v. White, 893 F.2d 276, 277-78 (10th Cir.1990)); see also United States v. Bowser, 941 F.2d 1019, 1023-24 (10th Cir.1991).
cited Cited as authority (rule) United States v. Ziegler
D. Kan. · 1993 · confidence medium
In its examination of this court’s decision to depart, the Tenth Circuit applied the three-step departure analysis explained in United States v. White, 893 F.2d 276, 278 (10th Cir.1990).
cited Cited as authority (rule) United States v. Benjamin Thomas Tisdale, III
10th Cir. · 1993 · confidence medium
Julian, 966 F.2d 564, 567 (10th Cir.), cert. denied sub nom, — U.S. -, 113 S.Ct. 348 , 121 L.Ed.2d 263 (1992); United States v. White, 893 F.2d 276, 277 (10th Cir.1990).
discussed Cited as authority (rule) United States v. James David Thornbrugh (2×)
10th Cir. · 1993 · confidence medium
Although such factors might justify a departure if they are sufficiently unusual either in degree or in kind, see United States v. White, 893 F.2d 276, 278 (10th Cir.1990), those circumstances are not present here.
discussed Cited as authority (rule) United States v. John Frederick Haggerty (2×) also: Cited "see"
10th Cir. · 1993 · confidence medium
Ordinarily, we review a district court's decision to depart under the three-prong test set forth.in United States v. White, 893 F.2d 276, 277-79 (10th Cir.1990).
cited Cited as authority (rule) United States v. Jimmy Gene Kelly, Jr.
10th Cir. · 1993 · confidence medium
United States v. White, 893 F.2d 276, 277-78 (10th Cir.1990).
discussed Cited as authority (rule) United States v. Maurice L. Ziegler
10th Cir. · 1993 · confidence medium
The district court must “explicitly set forth the considerations that motivate its decision to depart ... from the Guidelines [and] we will not speculate as to what those considerations may have been.” United States v. White, 893 F.2d 276, 278 (10th Cir.1990).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Gregory J. WHITE, Defendant-Appellant
89-3003.
Court of Appeals for the Tenth Circuit.
Jan 8, 1990.
893 F.2d 276
Michael L. Harris, Asst. Federal Public Defender (Charles D. Anderson, Federal Public Defender, with him on the brief), Kansas City, Kan., for defendant-appellant Gregory White., Benjamin L. Burgess, Jr., U.S. Atty. (Julie A. Robinson, Asst. U.S. Atty., with him on the brief), for plaintiff-appellee.
Brorby, Logan, Tacha.
Cited by 143 opinions  |  Published
TACHA, Circuit Judge.

On October 17, 1988, appellant Gregory White pleaded guilty to bank robbery, a violation of 18 U.S.C. § 2113(a). At the sentencing hearing, the judge departed upward from the sentence indicated by the United States Sentencing Commission Guidelines (“Guidelines”) and imposed a term of 46 months imprisonment. White appeals arguing that the upward departure was both unreasonable and clearly erroneous. We affirm.

I.

We are persuaded by the First Circuit that the review of a sentencing court’s upward departure from the Guidelines involves three steps. See United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, - U.S.-, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); see also United States v. Joan, 883 F.2d 491, 494-96 (6th Cir.1989).

In the first step, we determine whether the circumstances cited by the district court justify a departure from the Guidelines. The sentencing court may depart from the Guidelines only if it “finds that there exists an aggravating or mitigating[*278] 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.” 18 U.S.C. § 3553(b). In the second step, we review any underlying factual determinations made by the district court. Our standard of review in the first step is plenary. See 18 U.S.C. § 3553(b). In the second step, we review all factual determinations under the clearly erroneous standard. See 18 U.S.C. § 3742(e).

In the first step, we must ascertain what circumstances the Commission has adequately considered. The sentencing court should “treat each guideline as carrying out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.” United States Sentencing Commission, Guidelines Manual, Ch.l, Pt.A, intro, comment, at 1.6 (Nov.1989) [hereinafter U.S.S.G.]. Thus, in reviewing the upward departure of the sentencing court, we must determine whether the circumstances cited by the district court, either in kind or degree, are sufficiently “unusual” to warrant departure. See Diaz-Villafane, 874 F.2d at 49.

Of course, if the district court does not explicitly set forth the considerations that motivate its decision to depart upward from the Guidelines, we will not speculate as to what those considerations may have been. Section 3553(c)(2) mandates that the district court explicitly state its reason for departing from the Guidelines and we must vacate the sentence if the district court fails to do so. See 18 U.S.C. § 3553(c)(2); United States v. Smith, 888 F.2d 720, 724 (10th Cir.1989).

In step two, we ascertain whether the circumstances cited by the district court to justify departure actually exist in the instant case. We search only for a sufficient factual basis to justify departure. These findings of fact will be overturned only if they are clearly erroneous. See 18 U.S.C. § 3742(e).

Steps one and two, taken together, constitute our review of the district court’s decision to depart from the Guidelines. If the circumstances cited by the court are a proper justification for departure under the Guidelines, and if there is a factual basis for the cited circumstances in the instant case, the decision to depart falls within the statutory authorization for departures and is, therefore, valid. See Diaz-Villafane, 874 F.2d at 49; 18 U.S.C. § 3553(b).

The third and final step in our inquiry is a review of the district court’s degree of departure from the Guidelines. To determine the applicable standard of review, we look to section 3742(e)(3), which mandates that we vacate a sentence outside the Guidelines if it is unreasonable. See 18 U.S.C. § 3742(e)(3). Thus, even if the decision to depart is valid under the authorization of section 3553(b), the sentence still will be vacated if the degree of departure is unreasonable. See Diaz-Villafane, 874 F.2d at 49; Joan, 883 F.2d at 495-96.

To determine whether the degree of departure is reasonable, we must consider the district court’s proffered justifications as well as such factors as: the seriousness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing pattern of the Guidelines, the policy statements contained in the Guidelines, and the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3742(e)(3); 18 U.S.C. § 3553(a).

We also look to the Guidelines themselves for direction in applying this reasonableness determination. Although the Guidelines were enacted to eliminate the uncertainties and disparities in the former sentencing system in which judges had great discretion, see Mistretta v. United States, - U.S. -, 109 S.Ct. 647, 651, 102 L.Ed.2d 714 (1989); Smith, 888 F.2d at 724, Congress still envisioned that the Guidelines would leave considerable discretion in the hands of the sentencing judge, see S.Rep. No. 225, 98th Cong.2d Sess., reprinted in 1984 U.S.Code Cong. & Ad[*279] min.News 3182, 3235 (cited in Diaz-Villafane, 874 F.2d at 52) (purpose of Guidelines “is to provide a structure for evaluating the fairness and appropriateness of the sentence for an individual offender, not to eliminate the thoughtful imposition of individualized sentences”). The Guidelines clearly provide that “the controlling decision as to whether and to what extent departure is warranted can only be made by the court at the time of sentencing.” U.S.S.G. § 5K2.0, policy statement (emphasis added). This retention of considerable discretion at the district court level is a product, in part, of:

the difficulty of foreseeing and capturing a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision. The Commission also recognizes that in the initial set of guidelines it need not do so. The Commission is a permanent body, empowered by law to write and rewrite guidelines, with progressive changes, over many years. By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so, the Commission, over time, will be able to create more accurate guidelines that specify precisely where departures should and should not be permitted.

U.S.S.G. Ch.l, Pt.A, intro, comment, at 1.6. We conclude that especially at this early stage in the development of the Guidelines, we should not lightly overturn determinations of the appropriate degree of departure. See Diaz-Villafane, 874 F.2d at 50. With these considerations in mind, we apply the three part test to the particular allegations in this appeal.

II.

We first review de novo whether the circumstances cited by the district court justify a departure from the Guidelines. The sentencing judge based his departure in this case on his belief that White’s criminal history category score, as calculated under the Guidelines, underrepresented the seriousness of his criminal history.

White committed forgery on October 5, 1987. On May 26,1988, he robbed a convenience store and a bank. He pleaded guilty to the forgery and aggravated robbery of the convenience store on July 13, 1988, and was sentenced on September 21, 1988. On October 17, 1988, White pleaded guilty to the bank robbery. His sentence, imposed on December 19, is the subject of this appeal. Although the September 21 sentence arose from two offenses, the Guidelines treat it as a single sentence for purposes of computing the appropriate criminal history category. See U.S.S.G. § 4A1.2(a)(2) (prior sentences arising from related cases should be treated as one sentence); U.S.S.G. § 4A1.2, comment (n.3) (cases combined for sentencing purposes are related cases). However, the Guidelines also caution:

there may be instances in which this definition [of related cases] is overly broad and will result in a criminal history score that underrepresents the seriousness of the defendant’s criminal history and the danger that he presents to the public. For example, if the defendant commits a number of offenses on independent occasions separated by arrests, and the resulting criminal cases are consolidated and result in a combined sentence of eight years, counting merely three points for this factor will not adequately reflect either the seriousness of the defendant’s criminal history or the frequency with which he commits crimes. In such circumstances the court should consider whether departure is warranted.

U.S.S.G. § 4A1.2, comment (n. 3). The district court cited this application note in explaining its decision to depart. Reference to the application note is entirely appropriate. Like the example cited in the application note, the September 21, 1988, sentence involved two serious offenses, committed on independent occasions, seven months apart.

The district court also based its upward departure on the grounds that White committed the instant offense while out on bail for the July 13 forgery offense. The court referred to the applicable section of the Guidelines, which provides that if the defendant “committed the instant offense[*280] while on bail or pretrial release for another serious offense,” a departure may be warranted to avoid underrepresenting the defendant's criminal history. U.S.S.G. § 4A1.3, policy statement.

We have little difficulty in concluding that both of the district court’s justifications for departure were not already adequately considered by the Sentencing Commission in formulating the Guidelines, see 18 U.S.C. § 3553(b), since the Sentencing Commission explicitly stated that the cited reasons were appropriate grounds for departure. [1]

We next determine whether the circumstances cited by the district court, even if a proper basis for departure under the Guidelines, had a factual basis in this case. White does not dispute the existence of the consolidated sentence on the charges of forgery and aggravated robbery. White does argue that the presentence report does not disclose when he posted bond. White concludes that this renders the report ambiguous “at best.” White, however, points to no evidence in the record indicating that he was not out on bail during the commission of the instant offense. We hold that the trial court was not clearly erroneous in concluding, consistent with the presentence report, that White was out on bail at the time of the instant offense.

Finally, we determine whether the district court’s degree of departure from the Guidelines was reasonable. The Sentencing Commission has given us a clear guide in this inquiry, directing that when a trial court departs upward on the basis of criminal history facts, it should

use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable. For example, if the court concludes that the defendant’s criminal history category III significantly underrepresents the seriousness of the defendant’s criminal history, and that the seriousness of the defendant’s criminal history most closely resembles that of most defendants with a Category IV criminal history the court should look to the guideline range specified for a defendant with a Category IV criminal history to guide its departure.

U.S.S.G. § 4A1.3, p.s. [2] ; see United States v. Anderson, 886 F.2d 215, 216 (8th Cir. 1989); United States v. Jackson, 883 F.2d 1007, 1009 (11th Cir.1989); United States v. Cervantes, 878 F.2d 50, 53-54 (2d Cir. 1989); United States v. Miller, 874 F.2d 466, 470-71 (7th Cir.1989); United States v. Lopez, 871 F.2d 513, 514-15 (5th Cir. 1989).

The sentencing court closely followed this policy statement when it imposed a term of 46 months on White. Searching for the appropriate criminal history category, the court concluded: “Had the defendant been given three criminal history points for the aggravated robbery, his criminal history category would have been four resulting in the guideline range of 37 to 46 months.” We hold that the district court’s degree of departure from the Guidelines was reasonable. The order of the district court is AFFIRMED.

1

. Of course, a sentencing court may also make an upward departure from the Guidelines on the basis of factors that the Commission has not explicitly stated to be appropriate grounds for departure. See U.S.S.G. Ch.l, Pt.A, intro, comment.

2

. We note that these specific constraints on the district judge's determination of the appropriate degree of departure are not present when the judge departs upward for factors unrelated to criminal history. See Diaz-Villajane, 874 F.2d at 51-52.