18 U.S.C. § 3742(a)(1). Just as a court’s failure to appreciate its authority to depart constitutes an error of law appealable under § 3742(a)(1), see, e.g., United States v. Adeniyi 912 F.2d 615, 619 (2d Cir.1990), it is likewise legal error for a court to take the unusual step of expressly abdicating the discretion that it has been duly entrusted by law to exercise. In the unusual circumstances with which we are presented, as in the situation where a court fails to recognize its authority to depart, our task is not to question the merits of a court’s discretionary judgment about the propriety of departure, but simply to ensure that the court actually makes the discretionary judgment that the law allows and expects it to make. Cf. United States v. Gangi, 45 F.3d 28, 32 (2d Cir.1995) (<HOLDING>); United States v. Poff, 926 F.2d 588, 590-91
holding that defendant must have opportunity to respond to governments substantial assistance motion because that response is essential predicate to exercise of courts discretion and distinguishing cases holding denials of 5k11 motions unreviewable because those cases concerned underlying merits of courts discretionary judgments not their very exercise holding that discretionary denials of motions to reopen are reviewed only for abuse of that discretion holding that although not essential to the outcomes of two previous cases the court of appeals should have followed the texas supreme courts statements in those cases holding failure to exercise discretion is abuse of discretion holding that even though the state trial court rendered its judgments in the defendants prior cases on the same day with their sentences to run concurrently the district court did not clearly err in finding that those prior cases were not consolidated for sentencing due to cases separate indictments and judgments and the absence of a consolidation order