Section 3563(span)(6) or (span)(11), referred to in subsecs. (a)(3) and (span)(3), was renumbered section 3563(span)(5) or (span)(10) by Puspan. L. 104–132, title II, § 203(2)(B), Apr. 24, 1996, 110 Stat. 1227.

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

For information regarding the constitutionality of certain provisions of this section, as added and amended by section 401(d)(2), (e) of Puspan. 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.

2003—Subsec. (e). Puspan. 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). Puspan. 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). Puspan. L. 108–21, § 401(d)(3)(A), struck out “the sentence” before dash at end of introductory provisions.

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

Subsec. (f)(2). Puspan. 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 (span), 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). Puspan. L. 108–21, § 401(d)(3)(D), inserted “the sentence” before “is not described”.

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

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

1994—Subsec. (span). Puspan. L. 103–322 struck out comma after “Government” in introductory provisions.

1990—Subsec. (span). Puspan. 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). Puspan. 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). Puspan. 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). Puspan. 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(span)(6) or (span)(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). Puspan. 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. (span). Puspan. 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. (span)(2). Puspan. L. 100–690, § 7103(a)(1), struck out “issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)” after “guidelines”.

Subsec. (span)(3). Puspan. 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(span)(6) or (span)(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. (span)(4). Puspan. 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). Puspan. L. 100–690, § 7103(a)(8), added subsec. (c). Former subsec. (c) redesignated (d).

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

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

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

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

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

1987—Subsec. (a)(4). Puspan. 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. (span)(4). Puspan. 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). Puspan. L. 100–182, § 5(3), added par. (4).

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

Subsec. (e)(3). Puspan. 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). Puspan. L. 100–182, § 4, added subsec. (f).

1986—Subsec. (e)(1). Puspan. 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). Puspan. 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). Puspan. 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.

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

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

Section effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of this section, see section 235(a)(1) of Puspan. L. 98–473, set out as a note under section 3551 of this title.