Opinion for the Court filed by Circuit Judge GARLAND.
Opinion concurring in part and dissenting in part filed by Circuit Judge ROGERS.
GARLAND, Circuit Judge:
The United States appeals from a judgment of the United States District Court, granting defendant Christopher Riley a downward departure from the sentence required by the United States Sentencing Guidelines. Reviewing the judgment de novo, we hold that the departure was improper and remand the case for resentenc-ing.
I
On April 24, 2003, Riley pled guilty to a federal grand jury’s superceding indictment charging him with one count of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Riley did not enter into a plea agreement with the government or otherwise stipulate in writing to the facts of his crime. The relevant events are, however, partially chronicled in a government proffer offered at the plea hearing, with which the defendant said he agreed. 04/24/03 Tr. 11-13. They are also chronicled in a Presentence Investigation Report (PSR) prepared by the United States Probation Office, which the defendant agreed contained no material inaccuracies. The following recitation begins with information from these sources.
At approximately 6:45 on the morning of May 7, 2002, a Special Agent of the Federal Bureau of Investigation (FBI) was on his way to an FBI field office in downtown Washington, D.C., when he noticed a brown Chevrolet Suburban automobile parked directly across the street from the field office. The car, which bore Maryland license plates, had two large antennae, a Fraternal Order of Police sticker on the back window, a red light, and a Metropolitan Police Department (MPD) placard on [1163]*1163the dashboard. Riley was inside the car. The FBI agent stopped, called the FBI Communications Center to check the car’s license plates and, while waiting for a response, observed Riley get out of the car and walk toward a building. After being advised that the car had been reported stolen, the agent approached the building as Riley came out. The agent asked Riley if he was the car’s owner, and Riley said that he was.
The FBI agent then asked Riley if he had any weapons; Riley said that he did. A search of his person revealed a fully-loaded, semi-automatic handgun in a holster on his hip. Riley then told the agent that he was an MPD chaplain and produced a Police Department identification card and badge. He admitted that he was not a sworn police officer and that he did not have a permit to carry a gun in the District. He did claim, however, to have a permit to carry the gun in Maryland. (Riley’s counsel repeated that claim at the plea hearing.) As for the ear, Riley explained that he had just purchased it from a friend, and immediately called the friend to confirm for the agent that a sale had transpired. Meanwhile, MPD officers arrived on the scene and arrested Riley.
The PSR reviewed Riley’s criminal history and offense level under the Sentencing Guidelines. It noted that Riley had been convicted in 1989 in Virginia federal court for transporting a firearm across state lines while under felony indictment, in violation of 18 U.S.C. § 922(n). That conviction was the predicate offense for the § 922(g)(1) charge. The PSR also noted that Riley had several other prior convictions.1 Because all of Riley’s convictions were more than 10 years old and none involved more than 13 months’ imprisonment, the PSR assigned him zero criminal history points, yielding the lowest criminal history category of I. PSR ¶¶ 27-32; see U.S. Sentencing Guidelines Manual § 4A1.2(e) (2002) [hereinafter U.S.S.G.]. The PSR also calculated a base offense level of 14 under U.S.S.G. § 2K2.1(a)(6)(A) — the guideline applicable to violations of § 922 • — • and reduced it by two levels for acceptance of responsibility. PSR ¶¶ 16-25.
Riley’s criminal history category and offense level generated a guidelines sentencing range of 10 to 16 months’ imprisonment. See PSR ¶ 72 (citing U.S.S.G. ch. 5, pt. A (1992)). As the PSR reported, that range rendered Riley ineligible for probation. Id. ¶ 10; see U.S.S.G. § 5B1.1, cmt. n.2; id. § 501.1(f). The Probation Office reported that it had received no information that would justify a departure from the guidelines range. PSR ¶ 84.
In a written motion to the district court, filed two days before the sentencing hearing, Riley asserted that there was more to the story than was reflected in the plea hearing and PSR. See Def.’s Mot. for Downward Departure [hereinafter Motion], He contended that, on the evening of May 6, 2002, he had delivered an invocation at an annual memorial service for law enforcement officers. He then participated in a “ridealong” with an MPD officer, and eventually accompanied that officer to a 24-hour shooting range in Maryland. In the morning, he drove directly to work from the shooting range. According to Riley, he was a switching engineer employed as a “Verizon Federal Contractor” and assigned to work at an office of the Bureau of Alcohol, Tobacco and Firearms [1164]*1164(ATF) near where he was intercepted by the agent. Had it not been for his arrest, he said, he “would have secured the weapon at the ATF office upon his arrival.” Id.
Based on this account of his offense conduct, Riley asked the court to depart downward four offense levels so that he could be sentenced to three years’ probation. He made this motion pursuant to two provisions of the guidelines manual: U.S.S.G. § 5K2.11, which authorizes a departure if the defendant’s conduct did not threaten the harm sought to be prevented by his statutory offense; and U.S.S.G. § 5K2.0, which authorizes a departure if circumstances distinguish a defendant’s conduct from the “heartland” of offenses covered by the applicable offense guideline. The government responded orally at the hearing. The prosecutor did not address the truth of Riley’s factual claims, but contended that they did not justify departure.
At the sentencing hearing on August 29, 2003, the district court granted Riley’s motion for a four-level departure and sentenced him to three years’ probation. Noting that Riley was “gainfully employed,” the court said:
He hasn’t done anything wrong since 1989. He supports his children or tries to support his children. He seems to me to be an ideal candidate for probation, and I see no point at all in sending him to prison at this point. I am going to grant the Motion for Departure, and you can put me on Mr. Ashcroft’s list.
08/29/03 Tr. 6. Although the court also said that the sentencing issue was “the reason for which he possessed the weapon,” id. at 5, it made no mention of the circumstances of Riley’s arrest or of his representations regarding the shooting range. The court later noted on its judgment order that it departed downward “Upon motion of defendant — §§ 5K.2 and 5K.11 [sic],” and checked a box indicating that it adopted the factual findings in the PSR. The government contends that the record does not support a downward departure under either U.S.S.G. § 5K2.0 or § 5K2.11.
II
Our standard of review of decisions to depart from an otherwise applicable guidelines range has recently changed. Previously, pursuant to 18 U.S.C. § 3742(e), we reviewed a district court’s factual findings for clear error and its decision to depart from the guidelines for abuse of discretion. See Koon v. United States, 518 U.S. 81, 97-99, 116 S.Ct. 2035, 2046^7, 135 L.Ed.2d 392 (1996). In 2003, however, Congress amended § 3742(e) in § 401(d) of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act (PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650 (Apr. 30, 2003). Although courts of appeals must still “accept the findings of fact of the district court unless they are clearly erroneous,” we must now review a district court’s decision to depart from the guideline range “de novo.” 18 U.S.C. § 3742(e); see United States v. Motion, 345 F.3d 943, 946 (7th Cir.2003).2 Those circuits that have decided the issue have held that the judicial [1165]*1165review provision of the PROTECT Act applies with immediate effect, and without constitutional disability, to appellate proceedings after April 30, 2003, the date the PROTECT Act was signed into law.3 Today, we join them.
Although the PROTECT Act became law five months before Riley filed this appeal and four months before he was sentenced, the conduct for which he was convicted had taken place a year earlier. Riley argues that applying the Act’s de novo standard to review sentences for crimes committed before April 30, 2003 would violate the presumption against the retroactive application of statutes. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 268, 114 S.Ct. 1483, 1498-99, 128 L.Ed.2d 229 (1994). But a “statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment.” Id. at 269, 114 S.Ct. at 1499. Rather, to determine retroactive effect, “the court must ask whether the new provision attaches new legal consequences to events completed before enactment.” Id. at 269-70, 114 S.Ct. at 1499-1500. The de novo review provision at issue here does not change the consequences of Riley’s unlawful acts. As the Seventh Circuit has explained, the provision:
... does not change the statutory penalties for crime, affect the calculation of the Guidelines range, or alter the circumstances under which departures are permitted. It changes who within the federal judiciary makes a particular decision, but not the legal standards for that decision. Instead of one district judge, three appellate judges now decide whether a departure is justified.
Mallon, 345 F.3d at 946. In this respect, the provision is like “a new jurisdictional rule,” which “takes away no substantive right but simply changes the tribunal that is to hear the case.” Landgraf, 511 U.S. at 274, 114 S.Ct. at 1501-02. In such circumstances, “[pjresent law normally governs.” Id.
Riley also contends that applying the PROTECT Act would violate the Constitution’s Ex Post Facto Clause, U.S. Const. Art. I, § 9, cl. 3, “because the Act is punitive in nature.” Appellee’s Br. at 17; see Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 1146-47, 155 L.Ed.2d 164 (2003) (“If the intention of the legislature was to impose punishment, that ends the [Ex Post Facto] inquiry.”). But there is nothing — and Riley does not contend that there is anything — punitive about the Act’s new standard of appellate review. Instead, he contends that the Act is punitive when “considered as a whole,” Appellee’s Br. at 17, referring to the Act’s “substantive” as well as procedural provisions, id. at 18. Riley is presumably alluding to sections of the Act that impose new or increased criminal penalties for specified conduct. See, e.g., 18 U.S.C. § 2251(e) (increased penalty for sexual exploitation of children); id. § 3553(b)(2) (new sentencing rules for defendants convicted of “[c]hild crimes and sexual offenses”). Riley, however, has no standing to complain about provisions that do not apply to him, and those sections therefore do not affect our analysis here.4
[1166]*1166Finally, Riley draws our attention to two other new provisions of the PROTECT Act that he contends make it unfair to apply any part of the Act to him. First, a district court’s reasons for departing from a guidelines range must now “be stated with specificity in the written order of judgment and commitment,” 18 U.S.C. § 3553(c)(2), putting a greater premium on factfinding than perhaps the district judge realized. Although the prior statute had also required the court to state “the specific reason” for a departure, the reason had to be stated only “in open court.” See id. § 3553(c) (2000) (amended at 18 U.S.C. § 3553(c) (2004)). This difference has no consequence here, however, because even treating the court’s oral statements as if they had been written, and even accepting the defendant’s version of the facts, we conclude in Parts III-V that the departure was unwarranted.
Second, Riley notes the PROTECT Act provides that, if an appellate court remands for resentencing, the district court may not impose a sentence outside the applicable guidelines range:
except upon a ground that — (A) was specifically and affirmatively included in the written statement of reasons required by section 3553(c) in connection with the previous sentencing of the defendant ...; and (B) was held by the court of appeals, in remanding the case, to be a permissible ground of departure.
18 U.S.C. § 3742(g)(2). Riley worries that this provision could unfairly deprive him of the right to raise additional grounds that he has since identified to support his reduced sentence. Again, this provision has no consequence here. As discussed in Part V, we have considered the additional grounds that Riley proposes, including those arguably raised for the first time on appeal, and conclude that none justifies the sentence pronounced by the district court.
Ill
The first ground for departure upon which the district court relied, U.S.S.G. § 5K2.11, is entitled “Lesser Harms” and permits a downward departure if the defendant’s conduct did “not cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue.”5 Riley asserts that the harm sought to be prevented by § 922(g)(1) is the possession of a firearm for an unlawful purpose, and that because he had no unlawful purpose, he is eligible for departure under § 5K2.11.
Section 922(g), however, sweeps more broadly than Riley admits, drawing the criminal line at possession, not purpose. The statute declares it flatly “unlawful for any [prohibited] person ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition,” 18 U.S.C. § 922(g), and includes felons on the list of prohibited persons, see id. § 922(g)(1). To commit the crime, the felon need only possess the gun “knowingly.” Id. § 924(a)(2). As the Supreme Court has repeatedly noted, the federal laws that bar felons from possessing firearms have “a broad prophylactic purpose.” Dicker[1167]*1167son v. New Banner Inst., 460 U.S. 103, 118, 103 S.Ct. 986, 994-95, 74 L.Ed.2d 845 (1983) (describing the purpose of Title IV of the Gun Control Act of 1968, a predecessor of 18 U.S.C. § 922(g)).6 And while there certainly are statutory provisions that are concerned with the defendant’s purpose in possessing the firearm, see, e.g., 18 U.S.C. § 924(c) (prohibiting using or carrying a firearm during and in relation to a crime of violence or drug trafficking offense, or possessing a firearm in furtherance of any such crime), § 922(g)(1) is not one of them.7 Accordingly, the mere absence of an unlawful purpose does not warrant a departure under § 5K2.11.
Riley notes that § 5K2.11 provides two examples of situations in which a departure might be warranted because the defendant’s conduct does not threaten the evil sought to be proscribed by the statute, and he contends that those examples eoun-sel a departure in his case. The examples are “where a war veteran possessed a machine gun or grenade as a trophy, or a school teacher possessed controlled substances for display in a drug education program.” U.S.S.G. § 5K2.11. Tellingly, however, neither example involves a statutory bar on possession by a prohibited person; rather, each involves a ban on a particular object because of concern over how that object might be used. The same is true of the two cases that Riley cites involving departures where the defendant violated 26 U.S.C. § 5861, which prohibits the possession of certain unregistered, sawed-off firearms.8
Nor can Riley find support in the only appellate cases that have even entertained the possibility of a § 5K2.11 departure for a violation of § 922(g)(1). In those cases, the courts suggested that criminalizing the innocent and transitory possession of a weapon might be outside the purpose of § 922(g).9 Similarly, this [1168]*1168circuit has held that innocent possession could be a defense in a § 922(g) case in which a delivery truck driver testified that he had found the gun in a paper bag near a school, and that he took possession only to keep it out of the children’s reach, intending to deliver it to a police officer he knew would be at his next stop. United States v. Mason, 233 F.3d 619; 621 (D.C.Cir.2000). To qualify for such a defense, we held that the record must show that the defendant’s possession was “transitory” and that he “took adequate measures to rid himself of possession of the firearm as promptly as reasonably possible.” Id. at 624.
Riley’s version of his conduct does not establish transitory possession, or any similar circumstance. He was not, for example, apprehended at a shooting range. He did say that he used the gun at a range, but he did not say that it first came into his possession at the range, or that he did not intend to reclaim it from its “secured” location when it was time to leave work. To the contrary, he had obtained a Maryland permit for the weapon. Accordingly, even assuming the facts agreed to by Riley, this case involves a felon who possessed a firéarm for an extended period of time, who carried that weapon fully loaded on his person near a federal building in downtown Washington, D.C., and who evidenced no intention to permanently relinquish it. The purpose of § 922(g) was to criminalize just such behavior.10
IV
The second basis for the district court’s departure was U.S.S.G. § 5K2.0, which states that “the sentencing court may impose a sentence outside the range established by the applicable guidelines, if 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.’ ” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). As the guidelines manual explains:
The Commission intends the sentencing courts to treat each guideline as carving 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.
U.S.S.G. ch. 1, pt. A, intro, cmt. 4(b); see also id. § 5K2.0, cmt. In his motion for a downward departure, Riley argued that his innocent, sporting purpose for possessing the gun distinguished his case from the [1169]*1169§ 922(g)(1) heartland and entitled him to a § 5K2.0 departure. Riley is wrong for three reasons.
First, Riley’s argument about “the heartland” of § 922(g)(1) largely repeats his argument about “lesser harms.” See United States v. Rojas, 47 F.3d 1078, 1082 n. 5 (11th Cir.1995) (noting that implicit in the court’s rejection of a departure under § 5K2.11 “is a finding that [the defendant’s] case does not warrant a downward departure because it involves circumstances that distinguish it ‘from the “heartland” cases covered by the guidelines’ ”) (quoting U.S.S.G. § 5K2.0). But as we have explained, the statute intended to proscribe, and the guidelines to punish, precisely this case. Cases in which the defendant had an unlawful purpose — such as to use the weapon in a violent or drug trafficking crime — are in the heartland of other offenses, not of § 922(g). See, e.g., 18 U.S.C. § 924(c); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (noting that “simple possession, even by a felon, takes place in a variety of ways ... many, perhaps most, of which do not involve likely accompanying violence”).
Second, the Supreme Court has instructed that courts should not depart based on a factor that the applicable offense guideline has already taken into account, unless that factor “is present to an exceptional degree” ■ — • that is, unless it “is present to a degree substantially in excess of that which ordinarily is involved in the offense.” Koon, 518 U.S. at 95-96,116 S.Ct. at 2045-46 (quoting U.S.S.G. § 5K2.0).11 In this case, the relevant offense guideline, § 2K2.1, does take purpose into account. Riley was assigned a base offense level of 14 under that guideline because he was a “prohibited person” (a felon) when he committed the offense. See PSR ¶ 16 (citing U.S.S.G. § 2K2.1(a)(6)(A)). The same guideline, however, would have increased Riley’s base offense level if he had used or possessed the firearm “in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5). On the other hand, the guideline would have decreased the base offense level if the firearm had been possessed for narrowly-defined reasons: “solely for lawful sporting or collection purposes.” Id. § 2K2.1(b)(2). As we discuss in Part V.B below, Riley does not qualify for a decrease on that ground. But the fact that the guideline takes into account the circumstances in which a defendant’s purpose should matter — as either an aggravating or a mitigating factor — counsels strongly against permitting purpose to serve also as a ground for departure unless it is truly “exceptional.” Riley’s purpose plainly was not.
Third, were we to accept that possession without an unlawful purpose is outside the § 922(g) heartland, there would be nothing left of that heartland. Guideline provision § 5K2.6 encourages upward departure “[i]f a weapon ... was used or possessed in the commission” of an offense, and § 5K2.9 similarly encourages upward departure “[i]f the defendant committed the offense in order to facilitate ... the commission of another offense.” These provisions suggest that it is an unlawful purpose — not a neutral or “innocent” one — that is outside the heartland of eases.
[1170]*1170V
Finally, we address two further grounds that Riley advances to justify the sentence he received.
A
Riley argues that he is entitled to a § 5K2.0 departure by virtue of a “combination of factors” in addition to those we have discussed above. Appellee’s Br. at 35. Riley says that these include the following: his predicate felony conviction was thirteen years old; the predicate felony was not a violent crime or drug trafficking offense; he had turned his life around to become an ordained minister and community leader; and he had been employed with the same company for eight years. Riley did not advance this theory below: his sentencing memorandum specified only the two grounds that we have discussed in Parts III and IV. See Motion. Whether the district court incorporated this theory into its reasoning, however, is less clear. Although the court’s written comment specified only §§ 5K2.11 and 5K2.0, the court’s statements at the sentencing hearing emphasized facts that might encompass this ground, including the fact that Riley was “gainfully employed” and that “[h]e supports his children or tries to support his children.” 08/29/03 Tr. 6.12
These grounds are, in any event, insufficient to warrant a departure in Riley’s case. The fact that Riley’s predicate conviction was old and for a non-violent crime, and the fact that he had no recent convictions, are not exceptional circumstances. The age of Riley’s prior crimes was already taken into consideration by the criminal history guidelines, which accorded him the lowest criminal history category of I — as if he had no criminal record at all. In In re Sealed Case, 292 F.3d 913, 916-17 (D.C.Cir.2002), this circuit held that a downward departure may not be based on a defendant’s criminal history where the defendant is already in category I. See also U.S.S.G. § 4A1.3 (“The lower limit of the range for Criminal History Category I is set for a first offender with the lowest risk of recidivism. Therefore, a departure below the lower limit of the guideline range for Criminal History Category I on the basis of the adequacy of criminal history cannot be appropriate.”). Moreover, the offense guideline under which Riley was sentenced likewise took account of the fact that his predicate offense was non-violent: as a consequence, his offense level was 14, see U.S.S.G. § 2K2.1(a)(6), rather than at least 6 levels higher, see id. § 2K2.1(a)(1)— (4).
The other cited characteristics —- Riley’s employment record, civic service, and family responsibilities • — ■ are also insufficient. The sentencing guidelines categorize these as “discouraged factors,” which are “ ‘not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline [1171]*1171range’ ” and may not form the basis of a departure unless they are present to “an exceptional degree.” Koon, 518 U.S. at 95-96, 116 S.Ct. at 2045-46 (quoting U.S.S.G. ch. 5, pt. H, intro, cmt.).13 It is “the defendant [who] bears the burden of proving by a preponderance of the evidence that he is eligible for a downward departure,” United States. v. Goodwin, 317 F.3d 293, 297 (D.C.Cir.2003), and Riley has given us no reason to think that his circumstances in these respects are exceptional in any way. Finally, Riley’s claim that even if these factors do not individually warrant a departure, they do so in combination, faces an even higher — and here insurmountable — barrier: A departure based on such an alleged combination is permissible only in “an extraordinary” and “extremely rare” case. U.S.S.G. § 5K2.0, cmt.; see Dyce, 91 F.3d at 1468. Riley’s is not such a case.
B
Riley also maintains that U.S.S.G. § 2K2.1(b)(2) provides an alternative ground for affirming the sentence he received, based not on a departure but rather on a downward adjustment of his base offense level. That subsection of the guideline applicable to § 922(g) convictions instructs courts to reduce the base offense level if the defendant “possessed all ammunition and firearms solely for lawful sporting purposes or collection.” U.S.S.G. § 2K2.1(b)(2) (emphasis added). Riley claims that proper application of that provision would have yielded a base offense level of 6 and a guideline range of 0-6 months, which would have rendered him eligible for the probation to which he was sentenced. See id. § 5B1.1.
This claim is new on appeal and fails on the merits. Riley did not contend below that he had possessed the weapon solely for sporting purposes; his sentencing memorandum said only that he had gone to a shooting range the night before his arrest and that he had proceeded from there to his job in Washington. Moreover, the commentary to § 2K2.1 instructs courts to “determinfe] by the surrounding circumstances” whether a weapon was possessed solely for lawful sporting purposes or collection. Those circumstances include the “location and circumstances of possession,” and the “nature of the defendant’s criminal history (e.g., prior convictions for offenses involving firearms).” Id. § 2K2.1 n.10.
In Riley’s case, the surrounding circumstances cut against his claim. He did not possess the weapon at a sporting location, but rather across a state line hours after its purported sporting use. See United States v. Morrison, 983 F.2d 730, 732 (6th Cir.1993) (denying departure in part because the timing of sunset indicated that the defendant “was not hunting immediately prior to his arrest”). The weapon was fully loaded. See United States v. Dudley, 62 F.3d 1275, 1277 (10th Cir.1995) (concluding that the “fact that the guns were loaded cuts against the contention that they were solely for sporting or collection purposes, rather than for personal protection”). And Riley’s criminal history included prior convictions for firearms offenses. See supra Part I & n.l. In short, [1172]*1172Riley simply cannot squeeze his circumstances into the narrow confines of § 2K2.1(b)(2).
VI
Based on the above considerations, we conclude that the downward sentencing departure granted Riley by the district court was unwarranted. Our dissenting colleague does not disagree, but “would remand the case to the district court for detailed factual findings and an explication of reasons for departing from the Sentencing Guidelines.” Dissent at 8. We decline to do so. Having given Riley every benefit of the doubt and having assumed the truth of every factual assertion he has offered here or in the district court, we have concluded that there are no facts the district court could find and no reasons it could explicate that — consistent with Riley’s version of events — would justify a downward departure. The problem in this case is not just insufficient factfinding by the district judge, but the failure of the facts — as asserted by Riley himself — to warrant a departure. Were we to remand here, we would have to remand in every case in which the proffered facts fail to justify a departure under any of a defendant’s theories, a result the Congress that passed the PROTECT Act could hardly have contemplated.
We, of course, agree that it is our responsibility to “accept the findings of fact of the district court unless they are clearly erroneous.” 18 U.S.C. § 3742(e). But in resolving this case on the assumption that the facts are as the defendant alleges, we do not “make [our] own findings of fact” or “speculate” or “surmise” in any way that disadvantages the defendant, Dissent at 5 —• just as we do not find facts when we assume the truth of a plaintiffs allegations in ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). In a case in which the defendant has neither offered nor alleged evidence from which a factfinding in his favor could reasonably be derived, there is no reason to remand for a factfinding that if made could not be legally sustained. Cf. Al-Fayed v. CIA 254 F.3d 300, 309 n. 10 (D.C.Cir.2001) (observing that a court “need not remand to permit the district court to exercise its discretion to depart if its decision to do so on remand would constitute an abuse of discretion” (quoting United States v. Fenner, 147 F.3d 360, 363 (4th Cir.1998))).
We also part company with our dissenting colleague in her repeated reliance on passages from Koon v. United States that have been legislatively superceded by the PROTECT Act. That statute was plainly intended to require courts of appeals to review “de novo the district court’s application of the guidelines to the facts” in the context of sentencing departures, 18 U.S.C. § 3742(e); see id. § 3742(e)(3)(B), rather than to give the district court “due deference” as required by Koon, see 518 U.S. at 96-99, 116 S.Ct. at 2045-47 (rejecting de novo standard of review in favor of due deference/abuse-of-discretion).
Finally, the cases cited by the dissent do not support the proposition that our sister circuits, “faced with the task of conducting de novo review of sentencing departures after enactment of the PROTECT Act, [have] concluded that the proper remedy for insufficient fact-finding by the district court is a remand for additional fact-finding.” Dissent at 1177. Two of the cited cases are simply inapposite.14 And the [1173]*1173third, while instructive, teaches a different lesson. In United States v. Huerta, the government and defendant presented conflicting versions of the facts, and the court of appeals remanded because the district court had failed to determine which version was correct. 371 F.3d 88, 95-96 (2d Cir.2004). If that were true in this case, a remand might well be warranted. Here, however, we do not have conflicting versions of the facts; we have only Riley’s. And even accepting Riley’s version, the facts are insufficient to justify a departure from the applicable guidelines range. Under such circumstances, a remand would be futile.
VII
For the foregoing reasons, we “set aside the sentence and remand for further sentencing proceedings” consistent with this opinion. 18 U.S.C. § 3742(f)(2)(B).