dissenting:

I concur with the majority’s rejection of Reyes’ challenge to the Government’s refusal to consent to the waiver of a jury trial. However, I dissent from the majority’s holding that the district court’s grounds for departure from the career offender guidelines were authorized, because the majority both misstates the district court’s rationale for departure and mischaracterizes the state of the law.

I

In reviewing the district court’s downward departure, we “must consider the reasons for departure actually articulated by the sentencing court.” United States v. Montenegro-Rojo, 908 F.2d 425, 427 (9th Cir.1990). During the sentencing hearing, the district court made several statements relevant to his decision to depart downward. The first occurred while the court was questioning the prosecutor about the Government’s position on classifying Reyes as a career offender:

After the district court and the prosecutor discussed the Government’s efforts to eradicate drug dealing in Portland, the district court stated

(Emphasis added). In its written “Findings of Fact Order,” filed three days after the sentencing hearing, the district court stated that it

The district court provided no further explanation for its decision to depart.

II

A district court’s explanation of its reason(s) for departing downward must meet the following standard:

United States v. Wells, 878 F.2d 1232, 1233 (9th Cir.1989) (emphasis added). “[CJonclu-sory statements] by the district court” do not “permit meaningful appellate review of the district court’s departure from the Guidelines.” Id. at 1233 . One problem with such cursory explanations for departure is that they may “amount[] to little more than an expression of personal disagreement with the Guidelines.” United States v. Thomas, 961 F.2d 1110, 1118 (3d Cir.1992).

The district court’s comments during its questioning of the prosecution at the sentencing hearing about the Government’s drug-fighting efforts do not meet our standard because they do not explain why the district court found that sentencing Reyes as a career offender seriously overrepresented his criminal history. At best they amount only to “expressions of personal disagreement with the Guidelines.” The district court seems to believe that long prison terms are not the best way to fight the war on drugs, as evinced by the statement “Don’t we have to do something different than that on this drug thing?”

The district judge also seems to disagree with classifying “comparatively minor offenders” as career offenders. None of these statements satisfies the standard established in Wells : an explanation of the specific aspects of Reyes’ criminal history that are overrepresented by career offender status. The only place where the district court seems to point to such aspects is immediately prior to announcing the departure down to level 14. The district court gives two reasons for its departure: the February 1987 conviction for possession for sale of marijuana was a “minor offense” 1 and the two 1989 convictions were consolidated for sentencing. 2 It is not entirely clear that the district judge based his finding of overrepresentation on these factors.

Even if reaching the merits of the case based on this record is warranted, we must consider the reasons actually advanced by the district court: consolidation of two of the prior offenses for sentencing and the fact that one of the prior offenses was “minor.” It is these reasons that we must evaluate to determine if they permit the district court to depart downward because they are mitigating circumstances not adequately taken into account by the Sentencing Commission. 18 U.S.C. § 3553 (b) (1988); U.S.S.G. § 5K2.0. See United States v. Sanchez, 933 F.2d 742, 745 (9th Cir.1991).

The consolidation for sentencing of the two separate and unrelated 1989 convictions does not render the criminal history any more “overrepresentative” than it would be otherwise; if anything, it makes it more under representative. As to the second circumstance, the district court’s conclusion that the prior marijuana offense was “minor” probably related to the fact that it involved a small quantity of marijuana — only six baggies. Thus, the Government correctly states that “the record below suggests [that] the district court based its decision to depart downward on the relatively small amounts of cocaine and marijuana sold by the defendant.” (Emphasis added).

*1393 The majority, rather than simply considering “the reasons for departure actually articulated by the sentencing court,” Montenegro-Rojo, 908 F.2d at 427 , puts words into the district court’s mouth. The majority first attributes its quantity disproportionality analysis 3 to the district court, when the district court undertook no such analysis. 4 The majority then concludes that

The problem with these statements is that the district court never made any such findings or gave anything close to this asserted rationale as a reason for downward departure. The majority opinion simply invents a justification out of whole cloth. It may well be that this is precisely the reason the district court had in mind but never articulated; however, it is our job to look at what the district court actually said, not to hypothesize what we would have said had we been in his shoes.

Even assuming arguendo that the district court’s rationale for downward departure was the relatively small quantities of drugs involved in Reyes’ prior offenses, we should vacate the judgment and remand for resen-tencing because this rationale is not a valid ground upon which to base a downward departure. The majority opinion correctly notes that both the Second and Sixth Circuits have held that the Sentencing Commission adequately took small quantities of drugs into account and have therefore rejected this rationale as a valid basis for downward departure. See United States v. Richardson, 923 F.2d 13, 17 (2d Cir.1991); United States v. Hays, 899 F.2d 515, 518-20 (6th Cir.), cert. denied, 498 U.S. 958 , 111 S.Ct. 385 , 112 L.Ed.2d 396 (1990). The majority opinion appears to agree with the rationale behind these holdings: 5

Richardson, 923 F.2d at 16 . 6 I agree with that rationale.

This case was never argued as an Eighth Amendment challenge to the Sentencing Guidelines career offender provision nor was it ever argued as a sentence proportionality *1394 case 7 , however, the majority identifies a question of first impression never addressed or considered by the parties or the district court and converts this case from a classic “small quantity” drug sentencing case controlled by the rationale of Richardson and Hays to a proportionality case. With no support in the record, the majority states that “a downward departure was warranted, in effect, because of the lack of proportionality”; and makes a proportionality argument for the district court which was never suggested by counsel or considered by the judge. The majority further converts the district judge’s simple “addict minor drug sales” stated basis for departure into a complex proportionate treatment analysis complete with a volume and quantity analysis found no where in the record. The opinion then makes a conclusion never considered or anticipated by the district court, namely, that the court was authorized to depart because while the Sentencing Commission did take into accord varying penalties linked to different drug quantities, the sentencing ranges resulting in exceptional discrepancies were not adequately considered.

Ill

The majority has caused another problem by creating a basis for departure to support the district court’s lack of explanation for the extent of its downward departure. The majority correctly notes that a district court must “give adequate reasons for ... the extent of departure,” United States v. Faulkner, 934 F.2d 190, 196 , as amended, 952 F.2d 1066, 1073 (9th Cir.1991), and that in doing so the court may draw analogies to other parts of the guidelines or other offenses. See United States v. Lira-Barraza, 941 F.2d 745, 746-47 (9th Cir.1991). The district provided no explanation, by analogy or otherwise, and therefore, as the majority correctly holds, we must remand for such an explanation. However, the majority does not stop there; it discusses at length why “[a]n analogy that results in reduction of both [criminal] history and base offense level would not be unreasonable.” This dictum is unnecessary to the central holding that we need to remand, and preemptively decides an issue not yet before us. Until the district court puts the issue squarely before us, we should not reach out and decide it.

I would vacate the judgment and remand for resentencing within the applicable career offender guidelines range in accordance with the rationale of Richardson .

. Contrary to the majority’s assertion, the district court never stated that "Reyes was guilty of very 'minor offense/ij ’’’ (emphasis added).

. Reyes argued to the district court that because the second 1989 conviction (Delivery of Controlled Substance II) was consolidated for sentencing with the first 1989 conviction (Possession of Controlled Substance I), it could not be used to establish Reyes’ career offender status. The district court rejected this argument, but apparently used the fact of consolidation to support his decision to depart downward.

. The part of the opinion stating that "[u]nder the career offender guidelines a defendant convicted for [selling] a fraction of one gram of cocaine is accorded the harshest punishment due an offender trafficking in up to 500 grams."

. The majority similarly states that the district court used this imaginary comparative quantity analysis "as the means to compare the similar treatment of defendants whose offenses differ by exceptional orders of magnitude,” when no such comparison was ever undertaken by the district court.

. The majority states that "we agree that the Commission did take into account varying penalties linked to different drug quantities.”

.In fact, the holding of Richardson probably extends to prohibit downward departures based on a disproportionality analysis similar to the one conducted by the majority. See United States v. Moore, 968 F.2d 216 , 226 n. 4 (2d Cir.) (applying Richardson to a district court’s downward departure based in part on the district court’s view that he "had heard of cases involving tens of thousands of pounds of marijuana where the sentences were not so severe as thirty years and that 'this case is of no comparison with them.’ ”), cert. denied, — U.S. -, 113 S.Ct. 480 , 121 L.Ed.2d 385 (1992). See also, Richardson, 923 F.2d at 17 (Restani, J., concurring) (“application of the career offender provision of the Guidelines in certain cases may be overly harsh”).

. Reyes’ counsel argued that "the career offender guidelines seriously overrepresent both [Reyes] criminal history and the actions in this case and that the combination of the factors in this case would constitute grounds for departure." She supported that assertion with the arguments that "Mr. Reyes's criminal history shows always very small amounts of controlled substances,” that the predicate marijuana conviction was a “simple possession case,” that Reyes was an addict and has received no treatment, and that his prior and current convictions "involve extremely small amounts of controlled substances.” She finally states "and it’s that combination of all those factors which we believe gives the court grounds for departing from the career offender guidelines.” (See ER pp. 17-18).