concurring in part and dissenting in part:

I concur in Part I of the majority opinion (“Appellant LaFleur”), but dissent from Part II (“Appellants LaFleur and Holm”).

The majority interprets 18 U.S.C. § 1111 (b) as imposing a minimum sentence of life imprisonment for first degree murder and not allowing for downward departures for any mitigating circumstances. Although it is distinctly possible that the *1549 Supreme Court would consider this strict interpretation of the statute constitutional under its recent opinion in Harmelin v. Michigan, — U.S. -, 111 S.Ct. 2680 , 115 L.Ed.2d 836 (1991), I see no reason why we should adopt this construction as a matter of statutory interpretation. We have available to us an equally permissible construction of the statute that permits downward departures for mitigating circumstances from the presumptively applicable sentence of life imprisonment. The rule of lenity counsels that we opt for this alternate construction.

It is undisputed that, under U.S.S.G. § 5G1.1, “when a statute requires a sentence different than that set by the guidelines, the statute controls.” United States v. Sharp, 883 F.2d 829, 831 (9th Cir.1989) (per curiam). The question in this case, however, is what the statute requires, i.e. whether or not Congress intended courts to consider mitigating circumstances according to the procedures under the Sentencing Guidelines when they sentence defendants for violations of 18 U.S.C. § 1111 (a). This is an unresolved issue of statutory interpretation that we must address.

The Guidelines themselves acknowledge that Congress left the issue open for the courts to resolve. U.S.S.G. § 2A1.1 sets the base offense level for first degree murder at level 43, which corresponds to a life sentence. The background commentary provides:

(Emphasis added).

The legislative history also demonstrates that this is a wide open issue. As the majority acknowledges, before the Guidelines were enacted, the life sentence prescribed by 18 U.S.C. § 1111 was not a “mandatory minimum,” but was qualified by the parole statute, which allowed those convicted under 18 U.S.C. § 1111 for first-degree murder to be eligible for parole after serving 10 years. See 18 U.S.C. § 4205 (a) (repealed effective Nov. 1, 1987). Thus, before the Guidelines were enacted, 18 U.S.C. § 1111 (b) did allow postsentenc-ing consideration of mitigating factors through the institution of parole.

Congress repealed the parole statute and replaced it by the Guidelines. See U.S.S.G. at 1.2. The question before us, I submit, is whether the life sentence should now be construed to be a “mandatory minimum” sentence not subject to the downward adjustment and downward departure provisions of the Guidelines, or whether it should be considered a presumptively applicable sentence to be imposed according to the usual Guidelines procedures.

As a matter of common sense, it seems that if Congress repealed the parole statute without changing the language of 18 U.S.C. § 1111 , it assumed that the usual Guidelines sentencing procedures would apply in place of the old parole procedures, including consideration of reductions and departures. 1 Just as prior to 1987, 18 U.S.C. § 1111 could not be read independently of the parole provision, today it cannot be read independently of the Guidelines. Until the parole provision was re *1550 pealed, every defendant was eligible for release on parole “after serving one-third of [his sentence] or after serving ten years of a life sentence or of a sentence over thirty years.” 18 U.S.C. § 4205 (repealed). Today, every defendant convicted under these statutes is eligible for adjustments and departures provided for in the Guidelines.

The majority interprets the Congressional repeal of the parole in a general bill overhauling sentencing practices as imposing a mandatory minimum of life imprisonment in a very specific criminal statute. What the majority overlooks is the fact that Congress, in repealing the parole statute and adopting the Guidelines, did not revise each substantive criminal statute individually. Instead, Congress replaced one general mechanism for mitigation of sentences (parole) with another mechanism (Guidelines adjustments and departures). This indicates a Congressional intent that sentences be determined solely by a defendant’s conduct up to the day of sentencing, rather than by his conduct during the time he spends in jail. It does not, in any way, indicate a Congressional intent to raise the effective penalty for substantive criminal statutes.

Absent specific Congressional language, we should not impute to Congress so lightly the intent to transform an effective statutory penalty range of 10 years to life (which frequently resulted in a period of incarceration of less than life imprisonment) into a mandatory penalty of life (which will always result in a life-long period of incarceration). If Congress intended such a draconian result of raising an effective statutory minimum of ten years to life imprisonment and overlooking the particular mitigating characteristics of all defendants, would not a reasonable Congress have said so? I fail to see why a reasonable court should read such an intent into the mere replacement of one general penal scheme with another.

Moreover, resolving this ambiguity in 18 U.S.C. § 1111 (b) as imposing a statutory minimum of life imprisonment “would violate the established rule of construction that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.’ ” See Simpson v. United States, 435 U.S. 6, 14 , 98 S.Ct. 909, 914 , 55 L.Ed.2d 70 (1977) (citing to United States v. Bass, 404 U.S. 336, 347 , 92 S.Ct. 515, 522 , 30 L.Ed.2d 488 (1971)); see also Rewis v. United States, 401 U.S. 808, 812 , 91 S.Ct. 1056, 1059 , 28 L.Ed.2d 493 (1971).

Until today, our court had not had an opportunity to consider whether pre-Guide-lines statutes mandating minimum sentences with possibility of parole should be construed as mandating minimum sentences without possibility of downward adjustments and downward departures for mitigating circumstances. All cases that have held that statutory mínimums are Guidelines mínimums have involved post-Guidelines statutes or pre-Guidelines statutes that did not provide for parole in the first place. See, e.g., United States v. Williams, 939 F.2d 721, 726 (9th Cir.1991) (holding that 28 U.S.C. § 841 (b)(1)(B), which requires a mandatory minimum of ten years without eligibility of parole for repeat narcotics offenders who trade in certain specified drugs, does not allow for a Guidelines adjustment or departure below this minimum); United States v. Beltran-Felix, 934 F.2d 1075, 1077 (9th Cir.1991) (same); United States v. Sharp, 883 F.2d 829 (9th Cir.1989) (same). The calculus for these cases is, of course, very different because, unlike statutes that provided for parole, these statutes always required an effective minimum sentence that corresponded to the statutory minimum.

In sum, the majority transforms a statute mandating a 10-year to life sentence for first-degree murder into a statute requiring life imprisonment. As I understand it, the majority believes that Congress, without ever saying so or even considering the issue, intended that the state lock up all persons convicted of first-degree murder and throw away the key.

I find it particularly troubling that the majority rushes to interpret a statute as mandating a statutory minimum sentence of life imprisonment at a time when the Sentencing Commission is calling on Con *1551 gress to repeal all statutory mínimums. See United States Sentencing Commission, Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System iv, 118-24 (1991) (prepared by the Commission as directed by section 1703 of Public Law 101-647 ).

The Commission report considers these statutory minimums particularly suspect because it has found that their operation has racially disparate effects:

Id. at ii. In conducting a careful analysis, the Report found that “[t]he statistically significant relationship between race and sentence above or below mandatory minimum remained” even after all other variables were controlled. Id. at 82 & n. 124; see also id. F-l to F-4 (Appendix F: Technical Discussion of the Probit Analysis).

In light of the foregoing, I respectfully dissent from the majority’s unnecessarily harsh construction of the statute as indiscriminately requiring a mandatory sentence of life imprisonment without eligibility of parole for all defendants convicted of first-degree murder under 18 U.S.C. § 1111 (a). Not only does this construction totally disregard the rule of lenity, but it is also inconsistent with the sentencing structure established by the Sentencing Reform Act.

. Although Congress repealed the parole statute in 1984, the repeal did not become effective until November 1, 1987, the day the Guidelines went into effect. Pub.L. 98-473, Title II, § 218(a)(5), Oct. 12, 1984, 98 Stat. 2027 . This timing lends further support to the view that Congress intended to replace one general sentence mitigation mechanism with another. Indeed, in determining the Guidelines sentencing ranges for particular crimes and promulgating the factors that justify adjusting those ranges, the Sentencing Commission did not limit its inquiry to pre-Guidelines sentencing practices in federal courts, but also examined parole guidelines and practices of parole boards. United States Sentencing Commission, Guidelines Manual 1.5, 1.10 (1990).