1

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________

No. 91-1856

______________________________

UNITED STATES OF AMERICA

 (PlaintiffAppellee)

v.

DAVID LAMBERT

 (DefendantAppellant)

_________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

_________________________________________________________

(June 8, 1992)

Before WISDOM, GARZA, Reynaldo G., and JONES, Circuit Judges.

GARZA, Reynaldo G., Circuit Judge:

PRELIMINARY STATEMENT

In this case, defendant-appellant complains that the

sentencing court improperly and unreasonably departed upward from

the Sentencing Guideline range. For the reasons discussed below,

we affirm the sentence of the district court. 
2

PROCEDURAL HISTORY

On or about February 21, 1991, David Lambert, appellant

herein, was indicted in the United States District Court for the

Northern District of Mississippi. The indictment charged:

On or about June 15, 1990, in the Northern District of

Mississippi, the defendant, DAVID LAMBERT, did while in

the lawful custody of an institution and facility in

which he was confined by the direction of the Attorney

General of the United States and a judgment and

commitment order of the United States District Court

for conviction of a felony, did [sic] knowingly escape

from said institution and facility, in violation of

Section 751(a) of Title 18, United States Code.

(nm $250,000 or nm 5 years or both)

Lambert pled guilty on April 24, 1991, and a presentence

investigation report was prepared. On July 31, 1991, a

sentencing hearing was conducted. The presentence report

determined that Lambert had an offense level of seven and a

criminal history category of V which provided for an imprisonment

range of 12 to 18 months according to the United States

Sentencing Guidelines. On July 31, 1991, the district court

departed upward from the Guidelines range and sentenced Lambert

to imprisonment for 36 months, twice the maximum Guideline

sentence, and three years of supervised release. The district

court imposed no fine beyond a $50 special assessment due to

Lambert's inability to pay.

FACTS

On June 15, 1990, Lambert was in federal custody and

assigned to the Community Treatment Services Center ("CTSC") at

Tupelo, Mississippi, having been sentenced on June 17, 1986, to
3

serve four years and two years consecutively for a conviction

under Title 18 U.S.C. §§ 2 and 494 (possessing with intent to

alter and publish altered United States postal money orders). 

Lambert was to be eligible for parole on September 21, 1991. On

June 15, 1990, after being assigned to the CTSC for less than one

month, he was given a weekend pass to visit the residence of one

W.C. McHardy in Boyle, Mississippi, and failed to return to the

CTSC. An arrest warrant was issued immediately, but because

Lambert was hiding in a specially arranged compartment in the

home of McHardy, the warrant was not served until February 3,

1991. McHardy was subsequently charged and convicted for

harboring and containing, assisting and abetting an escaped

federal prisoner.

Lambert's presentence report suggested that an upward

departure might be appropriate "since the criminal history

category may significantly under-represent the seriousness of the

defendant's criminal history or the likelihood that he will

commit further crimes." The report cited two reasons for this

assertion. First, Lambert received two convictions in 1978, one

for an armed robbery committed on August 14 and one for a

burglary committed on August 15. These convictions were

consolidated for sentencing so Lambert received only three

criminal history points. Second, the report noted that Lambert

committed two offenses, including the instant conviction, while

in custody. 

At the sentencing hearing, the district judge briefly
4

summarized Lambert's criminal history, which began with an armed

robbery in 1976, for which Lambert received two years

imprisonment. Shortly after being released, Lambert used a

pistol to rob a woman, and the following day committed burglary

in a store owned by the woman's family. Lambert was sentenced to

ten years on the robbery count and six years on the burglary

count, and served the terms concurrently.

Seven years after the commencement of Lambert's

incarceration at the Mississippi State Penitentiary, he was found

in possession of forged U.S. Postal Service money orders. After

Lambert was discharged from the Mississippi facility, he began to

serve a six year term in federal prison, and thereafter committed

the instant offense.

At the sentencing hearing for the instant offense, the court

stated:

What really concerns me, first of all, are two

offenses where weapons were used, first a knife and

then a gun. But to show total disrespect for the law

while you were incarcerated first in the Mississippi

State Penitentiary [and] in there you committed a

federal crime. While incarcerated in the federal

penitentiary you committed another federal crime...

The armed robbery and burglary convictions in 1978

were consolidated for sentencing, and they resulted

only in three criminal history points. You haven't

committed just one offense while in custody; you have

committed two while lawfully incarcerated on other

charges. 

If ever there was an instance where the guidelines

did not adequately consider the seriousness of the

offense that you have committed, considering your

criminal history as a whole, this is that case.

I'm of the opinion that your criminal history,

particularly the two offenses committed while in lawful
5

custody on other offenses, are significantly more

serious than that of most defendants who are in this

same criminal history category. And you're in a

criminal history category of V, even after giving you

the two points for the acceptance of responsibility. 

VI is the highest.

But I do not believe that the guidelines in this

case adequately reflect the seriousness of the offense

nor do they adequately provide punishment commensurate

to the gravity of the offense in this case considering

your criminal history category as a whole.

[Emphasis added].

Accordingly, the court departed upwards in sentencing

Lambert. Lambert appeals.

ANALYSIS

Lambert contends that the district court failed to provide

acceptable reasons for the departure, and that, even if

acceptable reasons existed, the departure was unreasonable. In

reviewing a challenge to a sentence, we must accept the factual

findings of the district court unless clearly erroneous. "A

departure from the guidelines will be affirmed if the district

court offers 'acceptable reasons' for the departure and the

departure is 'reasonable.'" United States v. Velasquez-Mercado,

872 F.2d 632 (5th Cir.)(quoting United States v. Mejia-Orosco,

867 F.2d 216, 219 (5th Cir. 1989)), cert. denied, 493 U.S. 866

(1989).

I. The District Court Provided Acceptable Reasons for the Upward

Departure.

18 U.S.C. § 3553(b) authorizes the trial court to sentence a
6

defendant for an imprisonment term outside the range established

by the Guidelines if the court finds that an aggravating or

mitigating circumstance exists of a kind or to a degree not

adequately taken into consideration by the Sentencing Commission

in formulating the Guidelines. Guideline § 4A1.3, p.s.

implements 18 U.S.C. § 3553(b) and provides further guidance by

stating that "[a] departure under this provision is warranted

when the criminal history category significantly under-represents

the seriousness of the defendant's criminal history or the

likelihood that the defendant will commit further crimes." 

18 U.S.C. § 3553(c)(2) requires the sentencing court, at the

time of sentence, to articulate specific reasons for imposing a

sentence outside the range provided for by the Guidelines. We

have stated:

When a district court relies on Section 4A1.3 to depart

from the established guidelines, it should articulate

its reasons for doing so explicitly. We do not, of

course, require sentencing judges to incant the

specific language used in the guidelines, and, indeed,

such a ritualistic recital would make the sentence less

comprehensible to the defendant and our review more

difficult. What is desirable, however, is that the

court identify clearly the aggravating factors and its

reasons for connecting them to the permissible grounds

for departure under section 4A1.3.

United States v. de Luna-Trujillo, 868 F.2d 122, 124 (5th Cir.

1989).

The district court evinced concern over Lambert's use of

weapons in two of his past crimes, something not taken into
 

1 Guidelines § 5K2.6, p.s. lists the possession or use of

weapons or dangerous instrumentalities to commit crimes as a

ground for departing above the normal Guideline range. While we

note that the Guidelines refer here to departures due to the

gravity of the crime rather than to departures due to the underrepresentation of criminal history, we nevertheless find this

instructive because criminal history categories may not take into

account the gravity of past wrongdoing.

7

consideration by the Guidelines.1 The court also mentioned the

fact that Lambert had committed two offenses, armed robbery and

burglary, which added only three criminal history points to his

calculation because the Mississippi court had consolidated the

offenses for sentencing. 

Guidelines § 4A1.2(a)(2) allows for related cases to be

treated as one for sentencing purposes. Lambert argues,

therefore, that the Sentencing Commission fully considered the

effect of consolidated sentences such as the Lambert's in

formulating the Guidelines. As the Supreme Court has recently

concluded, "it is an incorrect application of the Guidelines for

a district court to depart from the applicable sentencing range

based on a factor that the Commission has already fully

considered in establishing the guideline range..." Williams v.

United States, 60 U.S.L.W. 4206, 4208 (U.S. March 10, 1992). If

the sentencing court relied on an incorrect factor in deciding to

depart, then there has been an incorrect application of the

Sentencing Guidelines under 18 U.S.C. § 3742(f)(1) and "a remand

is appropriate unless the reviewing court concludes, on the

record as a whole, that the error was harmless, i.e., that the

error did not affect the district court's selection of the
8

sentence imposed." 60 U.S.L.W. at 4209.

We do not believe, however, that the district court

misapplied the Guidelines. Comment 3 to section 4A1.2 states: 

The court should be aware that there may be instances

in which this definition is overly broad and will

result in a criminal history score that underrepresents

the seriousness of the defendant's criminal history and

the danger that he presents to the public. For

example, if the defendant was convicted of a number of

serious non-violent offenses committed on different

occasions, and the resulting sentences were treated as

related because the cases were consolidated for

sentencing, the assignment of a single set of points

may not adequately reflect the seriousness of the

defendant's criminal history or the frequency with

which he has committed crimes. In such circumstances,

an upward departure may be warranted. Note that the

above example refers to serious non-violent offenses. 

Where prior related sentences result from convictions

of crimes of violence, § 4A1.1(f) will apply.

An upward departure in criminal history due to the crimes

committed against the Mississippi family seems especially

apropos. The crimes, performed on different days, were certainly

serious. In fact, Lambert threatened Ms. Breaux in Mississippi

with a pistol. Certainly Lambert had become no less violent then

when he committed his 1976 offense involving a knife. 

Nevertheless, Lambert escapes application of section 4A1.1(f)

because the consolidated crimes did not involve a series of

violent offenses. 

The district court also pointed out that Lambert displayed

contempt for the law by committing crimes while in lawful custody

for other offenses. While the Guidelines do take into account

the obvious fact that Lambert was in custody when he escaped,

they fail to consider that he was in custody when he was in
9

possession of forged money orders.

Lambert argues that the district court failed to state its

reasons for departing with sufficient clarity, and cites United

States v. Shaw, 891 F.2d 528 (5th Cir. 1989), where we remanded

the case after the district court had given a 60 month sentence

to a defendant whose Guideline range was from 30 to 37 months. 

We note that the district court in Shaw was not as precise as the

sentencing court in this case regarding the reasons for its

sentence. More importantly, however, the district court in Shaw

was apparently unaware that it had departed. Id. at 529. This

was an incorrect application of the Guidelines which mandated a

remand under the emerging jurisprudence which recently culminated

in the Supreme Court's opinion in Williams, supra. 

II. The Extent of the District Court's Departure was Reasonable.

Lambert argues that even if an upward departure was

warranted, the extent of the departure was unreasonable. We do

not agree.

Lambert maintains that the district court erred in failing

to consider a sentence within the next highest criminal history

category, i.e., category VI. Guidelines § 4A1.3, p.s., states,

in pertinent part:

In considering a departure under this provision,

the Commission intends that the court use, as a

reference, the guideline range for a defendant with a

higher or lower criminal history category, as

applicable. For example, if the court concludes that

the defendant's criminal history category of III

significantly under-represents the seriousness of the

defendant's criminal history, and that the seriousness
10

of the defendant's criminal history most closely

resembles that of most defendants with a Category IV

criminal history, the court should look to the

guideline range specified for a defendant with a

Category IV criminal history to guide its departure. 

The Commission contemplates that there may, on

occasion, be a case of an egregious, serious criminal

record in which even the guideline range for a Category

VI criminal history is not adequate to reflect the

seriousness of the defendant's criminal history. In

such a case, a decision above the guideline range for a

defendant with a Category VI criminal history may be

warranted. However, this provision is not symmetrical. 

The lower limit of the range for a Category I criminal

history is set for a first offender with the lowest

risk of recidivism.

[Emphasis added].

Lambert contends that this policy statement requires that

the district court clearly state that it considered a sentence

within Criminal History Category VI and specifically explain why

such a sentence is inadequate. As explained below, we have held

that it is appropriate, as a prophylactic measure, for sentencing

courts to take such measures when the defendant's criminal

history category is low and it is not therefore initially

apparent that the risk of recidivism is great. We do not,

however, read the policy statement as mandating a step by step

procedure, especially not where the criminal history category is

high. The policy statement indicates that the sentencing court

should look to the next highest category if the seriousness of

the defendant's criminal history most closely resembles that of

most defendants with the next highest category. It does not say

that the sentencing court must do so if the seriousness of the

defendant's criminal history does not resemble that of most
 

2 In Williams, the district court had departed on grounds

that were in part contrary to Section 4A1.3, p.s., in that it

relied inter alia on defendant's arrest record. The dissent

argued that a violation of a policy statement is not a violation

of a Guideline. The majority answered by saying that

to say that guidelines are distinct from policy

statements is not to say that their meaning is

unaffected by policy statements. Where, as here, a

policy statement prohibits a district court from taking

a specified action, the statement is an authoritative

guide to the meaning of the applicable guideline. An

error in interpreting such a policy statement could

lead to an incorrect determination that a departure was

appropriate.

Williams v. United States, 117 L.Ed.2d 341, 353 (1992)(emphasis

added).

The Supreme Court clearly resolved that Section 4A1.3's

prohibition against relying on arrest records for departure

purposes was a correct interpretation of the Guidelines by the

Sentencing Commission. We do not believe that the Supreme Court

meant that an authoritative guide to the meaining of Guidelines

is an infallible guide. While the Supreme Court stated that a

misapplication of a policy statement could lead to misapplication

of the Guidelines "where ... a policy statement prohibits a

district court from taking a specified action," it did not state

that it must so lead, especially in a case where, as here, the

policy statement does not prohibit the district court from taking

a specified action, but merely explains how that action should be

taken. Even if our interpretation of Williams is in error,

however, it would not alter the outcome of the case before us as

we conclude that the district court did not misapply the policy

statement.

11

defendants with the next highest category. We read the policy

statement to mean that the Sentencing Commission intended that

the court explain why it reached the level of departure that it

did, not why it did not reach some other level.2

Clearly, the higher the criminal history category, the

greater the chance of recidivism. In United States v. Lopez, 871

F.2d 515 (5th Cir. 1989), the defendant scored a zero in the
12

criminal history calculation which, along with her offense level

of nine, rendered a sentencing range between four to ten months. 

The district court, however, more than doubled the maximum and

sentenced her to two years imprisonment, which was at the top of

the range for a defendant with a criminal history category of V. 

In such a situation, we held that such a sentence is improper

unless the district court states that it has considered sentences

corresponding to lower criminal history categories and explains

why such sentences are inadequate. Id. at 515. 

We have held, however, that Lopez is most applicable in

cases where the defendant's criminal history category is low. 

United States v. Harvey, 897 F.2d 1300, 1306 (5th Cir.), cert.

denied, 111 S.Ct. 568 (1990). In cases such as the one before

us, where the defendant has been in the criminal justice system

virtually his entire adult life and has shown a consistent

disrespect for the law, it is not so important that the

sentencing court explain fully why sentences corresponding to

lower criminal history categories do not suffice. In Harvey, the

defendant had a base offense level of 9 and a criminal history

category of V. After various adjustments, the applicable

sentencing range was between 18 to 24 months. The district

court, however, more than doubled the maximum amount and

sentenced Harvey to the statutory maximum of 60 months, without

explicitly stating that it had considered a sentence within the

category VI range and had found it inadequate. Relying on United

States v. Geiger, 891 F.2d 512 (5th Cir. 1989), cert. denied, 494
13

U.S. 1087 (1990), we affirmed, stating that "Lopez was confined

to those cases where a defendant's criminal history category is

low," and is not as applicable in a case where the criminal

history category was V. 897 F.2d at 1306.

Nevertheless, in United States v. Jones, 905 F.2d 867 (5th

Cir. 1990), we remanded for resentencing notwithstanding the fact

that the defendant had a criminal history category of V. In

Jones, the district court had sentenced the defendant to a prison

term four times the applicable Guideline maximum. Relying on

United States v. Landry, 903 F.2d 334 (5th Cir. 1990)(vacating

sentence 3.5 times greater than the Guideline maximum), we

remanded for a more complete explanation of the departure. What

disturbed us most in Jones, however, was that the sentencing

court did not fully explain why it departed at all. The district

court recited the defendant's criminal history, but did not state

why category V was inadequate. To then depart to such a great

extent was unacceptable. 

In the case before us, the district court was more explicit

than were the courts in Lopez, Jones or Landry. Moreover, the

extent of the departure was less than in any of these cases,

including Harvey. Therefore, we find that Harvey governs this

case, and we hold that the district court did not err in failing

to be more explicit than it was. We do not require that

sentencing courts make explicit analogies to other criminal

history categories in all cases because, as was explained in one

scholarly article,
 

3 We view departures from the upper criminal history

categories under Guidelines § 4A1.3 as basically "unguided,"

i.e., as similar to departures under § 5K2.0, as opposed to

"guided" departures, such as those under Guidelines § 2G1.1,

comment (n.1)(with respect to offense of interstate

transportation of prostitutes, where the defendant did not commit

the offense for profit and the offense did not involve physical

force or coercion, a downward departure of 8 levels is

recommended).

 

4 This article was authored by the Honorable Bruce M.

Selya, Judge, United States Court of Appeals for the First

Circuit, and his former law clerk, Matthew R. Kipp.

14

[r]equiring courts to look to analogies on all

occasions would prove unduly burdensome, adding

needlessly to the strain which guideline sentencing has

already put on overtaxed judicial resources. Thus, in

light of the diverse and unforeseen situations that

sentencing courts confront, as well as Congress' intent

not to desiccate the limited discretion that remains

after implementaion of the Guidelines, any absolute

requirement to link unguided3 departures to the

Guidelines unjustifiably infringes on the domain of the

sentencing court, increasing complication and

uncertainty in the law without securing any practical

advantage. The concern should be with the

reasonableness of the sentence imposed, not with the

intricacies of the calculations that produced it.

Selya and Kipp,4 An Examination of Emerging Departure

Jurisprudence Under the Federal Sentencing Guidelines, 67 Notre

Dame Law Review 1, 49 (1991).

Nor do we believe that the district court abused its

discretion in the amount of the departure. As we stated in

affirming a sentence of 36 months when the Guideline range was

between ten and sixteen months,

[w]e will not disturb a sentence that falls within the

statutory limits, even though an upward departure from

the Guidelines, absent a "gross abuse of discretion."

United States v. Perez, 915 F.2d 947, 948 (5th Cir. 1990)(quoting

United States v. Murillo, 902 F.2d 1169 (5th Cir. 1989)). See
 

5 As author of this opinion, I have no objection to the

suggestion of my colleagues that we take this question en banc to

settle our jurisprudence.

 

6 United States v. Lopez, 871 F.2d 513 (5th Cir. 1989).

 

7 United States v. Harvey, 897 F.2d 1300, 1306 (5th

Cir.), cert. denied, 111 S. Ct. 568 (1990).

15

also United States v. Campbell, 878 F.2d 164 (5th Cir.

1989)(affirming sentence 3 1/2 times the Guideline maximum). 

CONCLUSIONS

The district court sufficiently explained its reasons for

departing in this case. Moreover, doubling the maximum Guideline

sentence was not unreasonable. Therefore, the decision of the

sentencing court is 

AFFIRMED.5

JONES, Circuit Judge, concurring specially:

Because I believe it is possible, although not

necessarily wise, to reconcile the district court's sentencing

procedure in this case with our Lopez6-Harvey7 line of cases, I

concur in the result reached by Judge Garza's opinion. As will

be seen, I also agree with much of Judge Wisdom's analysis and

would urge the court to consider this issue en banc.

A couple of additional facts bolster my decision. 

First, while Lambert's pre-sentence report calculated a criminal
16

history category of V with a corresponding suggested imprisonment

range of 12 to 18 months, the sentencing range for a defendant

with a criminal history category VI would have elevated the

maximum sentence to only 21 months. The statutory maximum, on

the other hand, is five years, and the district court imposed a

sentence of 36 months. Measured against the statutory maximum

and the patent inadequacy of the sentence under a criminal

history category V, as the district court specifically

recognized, Lambert's 36-month sentence does not seem improper. 

My colleagues do not disagree on the reasonableness of the

ultimate sentence.

The point Judge Wisdom's dissent powerfully asserts is

that § 4A1.3 required the district court to articulate additional

reasons why Category VI would have been inadequate here. But it

is not clear to me that the Commentary to the Guidelines requires

the step-by-step process in a case like this. I think there is a

common-sense reason for the rule stated in Harvey, that a

district court's articulation of its departure need not

necessarily proceed step-by-step when the defendant is already at

a high criminal history category. When the history is Category

V, as here, the district court has only two possible upward

departures. Those are specified in Category VI and above to the

statutory limit. When the defendant's previous criminal record

indicates not only violent crimes but a propensity to return to

crime every time he got out of the penal system, it is obvious

beyond peradventure that elevating him to a criminal history
 

8 United States v. Perez, 915 F.2d 947, 948 (5th Cir.

1990).

17

category that would at most increase his incarceration by three

months is inadequate. We can see this inadequacy, the district

court could see this inadequacy, and I think it elevates the

intricacy of the Guidelines beyond all reason to require a remand

when the sentence will not change and all we are requiring the

district court to do is to state the obvious.

However, I agree with Judge Wisdom that the Supreme

Court's recent Williams decision implies a more hypertechnical

review of departure sentences than we have sanctioned in cases

like Perez8. I also agree that Williams requires district courts

to employ Guideline commentary seriously. But I think both those

approaches can be reconciled with our Lopez-Harvey rules in the

following way. When a criminal history category is low, the

step-by-step analysis is appropriate because there are a number

of intermediate sentencing decisions that the district court

might make. Section 4A1.3 tells the district courts to make

these intermediate decisions systematically. Where, however, we

are at history Category V, as I said before, there are only two

upward possibilities. In this case, at least, the district

court's preference for a sentence above Category VI is so plainly

understood as to easily permit appellate review and to satisfy

the rationale of § 4A1.3.

Under these narrow circumstances, I do not believe that

the district court misapplied § 4A1.3, as Judge Wisdom contends. 
18

On the other hand, because our court's jurisprudence construing

§ 4A1.3 is very difficult to interpret, and because it may well

conflict with decisions from most other circuits, I believe we

should consider the standard for evaluating departures based on

criminal history en banc. I urge the court to do so.

WISDOM, Circuit Judge, concurring and dissenting.

The majority recognizes that our Court's decisions on the

proper application of Guideline § 4A1.3 are inconsistent and

unclear. This case deserved oral argument before our panel and

now deserves oral argument before the en banc Court. I therefore

concur in the suggestion for rehearing.

The majority has tried bravely to find a path of reason

through the thicket of our Court's inconsistencies in applying a

guideline that is clear yet very possibly unreasonable. The

majority has tried to temper that rule with its own idea of the

rule's more reasonable construction. Because that construction

results in a misapplication of the Guidelines, because it

contradicts my interpretation of our first panel opinion on this

issue, because almost every other circuit court to have

considered the question disagrees, and because it seems to

contradict the approach of the Supreme Court's most recent

opinion on the Guidelines, I respectfully dissent.
 

9 I also read § 4A1.3 to state that departing above a

criminal history category of VI should be done in only the very

rare case. The argument could be made that Lambert's is not the

sort of "egregious, serious criminal record in which even the

guideline range for a Category VI criminal history is not

adequate to reflect the seriousness" of his criminal history. I

do not make that argument here; a departure above a criminal

history category of VI is not presumptively invalid in this case. 

What I do argue is that the district court did not reach the

I. The Letter of the Law

The conclusion to U.S.S.G. § 4A1.3 (Adequacy of Criminal

History Category) provides that:

In considering a departure under this provision,

the Commission intends that the court use, as a

reference, the guideline range for a defendant with a

higher or lower criminal history category, as

applicable. For example, if the court concludes that

the defendant's criminal history category of III

significantly under-represents the seriousness of the

defendant's criminal history, and that the seriousness

of the defendant's criminal history most closely

resembles that of most defendants with a Category IV

criminal history, the court should look to the

guideline range specified for a defendants with a

Category IV criminal history to guide its departure. 

The Commission contemplates that there may, on

occasion, be a case of an egregious serious criminal

record in which even the guidelines range for a

Category VI criminal history is not adequate to reflect

the seriousness of the defendant's criminal history. 

In such a case, a decision above the guidelines range

for a defendants with a Category VI criminal history

may be warranted. 

Without requiring the court to go through an extensive

elaboration of its method in departing upwards, this rule clearly

requires the court to depart upwards gradually, one step at a

time, to explain why each step it leaves behind is inappropriate

for the defendant, and to stop at the criminal history category

that most accurately reflects the defendant's actual criminal

history.9 
20

sentence it imposed in the manner that the Guidelines insist it

must. 

 

10 871 F.2d 513 (5th Cir. 1989).

 

11 Lopez, 871 F.2d at 515.

18 U.S.C.S. § 3742 controls our appellate review of

sentencing decisions. Subsection 3742(f)(1) requires us to

remand sentences that result from "an incorrect application of

the sentencing guidelines". Both the government and the majority

concede that the court's departure did not precisely follow §

4A1.3. The question before us is whether the district court

correctly applied the guidelines. The answer, unavoidably, is

"No". I would remand for resentencing.

II. Fifth Circuit Precedent

The first panel of this Court to consider § 4A1.3 seemed to

agree with the position I take. In United States v. Lopez10 we

wrote:

The Guidelines require sentencing courts first to

consider upward adjustments of the criminal history

category, where a defendant's score appears

inadequately to reflect his or her history, before a

departure sentence may be justified on this basis. 

Where this is not done, resentencing is appropriate.11

Lopez apparently reads § 4A1.3 as I would, as a rule requiring

the sentencing court to follow the step-by-step procedure

whenever it departs because of an inadequately representative

criminal history category. Lopez involved a defendant with a

very low criminal history category (I) to whom the court applied

a criminal history category of V. Later panels of this Court
21

 

12 897 F.2d 1300, 1306 (5th Cir.), cert. denied, 111 S. Ct.

568 (1990).

have since tried -- as the majority here tries -- to limit the

rule of Lopez to its facts by denying the benefit of § 4A1.3 to

defendants who start off with high criminal history categories. 

In my view, such a limitation of the rule reads Lopez with

inappropriate narrowness and misapplies the clear mandate of the

Guidelines themselves. 

In United States v. Harvey,

12 the Court wrote that "[i]t is

important to note, however, that the [Lopez] Court's holding was

narrow, and was confined to those cases with 'low history scores'

. . . . As mentioned above, Lopez was confined to those cases

where a defendant's criminal history category is low." I do not

read Lopez so to hold. The only statement in Lopez implying such

a limitation on a rule that lacks such a limitation is the

following:

In so holding, we emphasize that in some cases

involving defendants with low criminal history scores,

it may be justified to impose a sentence reflecting a

much higher criminal history category or to go beyond

the range corresponding to the highest category VI. 

However, in such cases the sentencing judge should

state definitely that he or she has considered lesser

adjustments of the criminal history category and must

provide the reasons why such adjustments are

inadequate.

871 F.2d at 515. I do not read this to modify the holding, as

quoted above, to apply § 4A1.3 only to cases where the criminal

history category is low. The statement merely applies the

Court's holding to the facts before it, and confirms that the

departure may go off the charts even when the criminal history
22

 

13 905 F.2d 867, 869 (5th Cir. 1990).

 

14 937 F.2d 984 (5th Cir. 1991).

 

15 Id. at 984.

category is low, so long as the court justifies it in the manner

mandated by § 4A1.3. Such a statement does not mean that

departing above a category of VI need not be so justified if the

criminal, in the majority's words, "has shown a consistent

disrespect for the law".

The misreading of Lopez in Harvey has been both avoided and

repeated, and the Court has refused to resolve the conflict. In

United States v. Jones,

13 the Court chose to apply Lopez as the

original case on the subject, "necessarily leaving to the en banc

court the resolution of any inconsistency or conflict." In

United States v. Williams,

14 however, the Court followed Harvey

in holding that the sentencing court is not required to state

that lesser adjustments were considered and found inadequate. 

Ignoring the real holding of Lopez, which simply applies § 4A1.3,

as well as the wiser course followed in Jones, the Court in

Williams felt confident in stating that the "Guidelines and our

precedent . . . do not support" a detailed justification of

upward departures: "Lopez dealt with the very narrow situation

where the criminal history category was underrepresented and the

district court made a drastic upward departure which did not

neglect the discrepancy."15 Again, although a holding must be

limited to the facts of the case before it, nothing in Lopez

suggests that its holding should be limited to its facts, nor --
23

 

16 In Jones the Court showed how the sentencing court's

departure was inadequately explained by showing how it failed to

comply with § 4A1.3:

The court's explanation for departing from the

scheme of the guidelines does not comport with the

statutory and guideline requisites. The court bypassed

Criminal History Category VI, one step above Jones'

category of V, but did not state its reasons for doing

so. More fundamentally, it did not specify why

Criminal History Category V was inadequate.

Jones, 905 F.2d at 870 (footnote omitted).

if we so limit it -- did the Lopez panel have the authority to

prevent the application of § 4A1.3 in other, different cases. 

I cannot accept the majority's attempt to distinguish Lopez

and Jones. We are told that Lopez, in which the defendant's

criminal history category was I, means that § 4A1.3 applies

rigorously only when the criminal history category is low. Then

we are told that the remand in Jones (in which the criminal

history category was V) was required not because of § 4A1.3 but

because the departure was inadequately explained. That

contention misreads the plain language of Jones, in which the

Court wrote that the departure was inadequately justified because

the sentencing court failed to follow the procedures of § 4A1.3. 

There is nothing in Jones to suggest that the district court

could adequately justify a departure without also complying with

§ 4A1.3.16

In effect, the majority is stating that literal compliance

with § 4A1.3 is required only when the criminal history category

is low; in every other case, in contravention of § 4A1.3 itself,

almost any reference to the grounds for departure will be

considered adequate to support a greatly increased sentence. No
24

 

17 See United States v. Taylor, 937 F.2d 676, 683 (D.C.

Cir. 1991); United States v. Johnson, 934 F.2d 1237, 1239 (11th

Cir. 1991); United States v. Lassiter, 929 F.2d 267, 270 (6th

Cir. 1991); United States v. Thomas, 906 F.2d 323, 329 (7th Cir.

1990); United States v. Thomas, 914 F.2d 139, 144 (8th Cir.

1990); United States v. Summers, 893 F.2d 62, 68 (4th Cir. 1990);

United States v. Coe, 891 F.2d 405, 412-14 (2d Cir. 1989).

 

18 See, e.g., Taylor, 937 F.2d at 683; United States v.

Polanco-Reynoso, 924 F.2d 23, 25 (1st Cir. 1991); United States

v. Fayette, 895 F.2d 1375, 1379 (11th Cir. 1990); United States

v. Kennedy, 893 F.2d 825, 829 (6th Cir. 1990); Summers, 893 F.2d

at 68; Coe, 891 F.2d at 412; United States v. Jackson, 883 F.2d

1007, 1009 (11th Cir. 1989); United States v. Cervantes, 878 F.2d

50, 54 (2d Cir. 1989). In the law review article cited by the

majority, Judge Seelya of the 1st Circuit also cites Lopez for

the proposition that in the 5th Circuit "the sentencing court

must follow [the] course" of § 4A1.3 strictly. Bruce M. Seelya

and Matthew R. Kipp, An Examination of Emerging Departure

Jurisprudence Under the Federal Sentencing Guidelines, 67 Notre

Dame L. Rev. 1, 41 n. 212. The majority thus finds less

precedential value in our own earlier holding than do the judges

of several other courts.

other opinion has yet inserted this distinction into the

Guidelines. The majority has erred in ignoring the

straightforward interpretation of § 4A1.3 in Lopez and Jones.

III. Case Law in Other Circuits

A strict construction of § 4A1.3 accords with almost every

circuit court to have considered the question. The D.C., 2nd,

4th, 6th, 7th, 8th, and 11th Circuits have unequivocally

confirmed a strict reading of § 4A1.3.17 (Many other circuits

have cited Lopez to support that reading.)18 The 10th Circuit,

sitting en banc, has refused to require a mechanistically

sequential application of § 4A1.3, but in the same case it

vacated and remanded a sentence very similar to the sentence
25

 

19 United States v. Jackson, 921 F.2d 985, 991 (10th Cir.

1990) (en banc). The Court found in Jackson that even though the

sentencing court had adequately justified its grounds for

departure and even though its degree of departure was not

presumptively unreasonable it had failed to explain the degree of

departure. See Jackson, 921 F.2d at 992. ("The court only

offered its reasons for departing but did not provide any

justification for the degree of departure. The court did not

rely on the Guidelines to find analogous levels and principles to

guide its degree of departure.") (I discuss and distinguish

these tests further in note 18, below). I therefore read even

Jackson -- a case that refuses to apply § 4A1.3 strictly -- to

require a remand in this case.

 

20 See United States v. Figaro, 935 F.2d 5, 8 (1st Cir.

1991); United States v. Aymelek, 926 F.2d 64, 70 and n. 4 (1st

Cir. 1991); Polanco-Reynoso, 924 F.2d at 25.

 

21 See Figaro, 935 at 8-9; Aymelek, 926 F.2d at 70; United

States v. Rodriguez-Cardona, 924 F.2d 1148, 1157 (1st Cir. 1991).

 

22 See United States v. Rodriguez-Castro, 908 F.2d 438,

442-43 (9th Cir. 1990); United States v. Cervantes-Lucatero, 889

F.2d 916, 919 (9th Cir. 1989).

 

23 United States v. Diaz-Villafane, 874 F.2d 43, 49-50 (9th

Cir. 1989). The Supreme Court's recent decision in Williams v.

United States, 117 L.Ed.2d 341 (1992), would presumably reverse

this last result; it confirms that § 3742(f)(1) requires

appellate courts to reverse for incorrect applications of the

Guidelines even where the departure in question would be

reasonable under § 3742(f)(2).

imposed in this case.19 The 1st Circuit, although it

acknowledges the unavoidably clear meaning of § 4A1.3,20 has

affirmed upward departures that lacked a step-by-step explanation

when there were alternate justifications for the departure.21

Although the 9th Circuit similarly affirms the plain meaning of §

4A1.3,22 it has in at least one case suggested that a district

court's non-compliance with § 4A1.3 can be reviewed only for

reasonableness under 18 U.S.C.S. § 3742(f)(2).23 In sum, no

other circuit court holds that the application of § 4A1.3 is
26

 

24 Seelya and Kipp, supra note 10. Seelya and Kipp

acknowledge that their position goes against all but two circuit

courts. Id. at 41 n. 212. Moreover, the language they use, even

the language quoted by the majority above, is advisory, and

critical -- not descriptive -- of the state of the law. They

purport to say not what the Guidelines say, but what they should

say. See id. at 49.

required in decreasing proportion to the defendant's criminal

history category.

I therefore find no support for the majority position in the

Guidelines themselves or in the well-reasoned precedents of this

or other circuits. Without the rule, there might be no logical

reason to demand that district courts jump through this

procedural hoop; the majority quotes academic support for that

position.24 But the rule is there. I do not think that we may

replace the Guidelines with our own conception of how they should

most reasonably be construed. I find final support for this

strict constructionism in the Supreme Court's most recent opinion

on the Guidelines. Although only tangentially related to the

issues of this case, Williams v. United States confirms that

procedural provisions such as § 4A1.3 must be strictly obeyed.

IV. Williams v. United States

In Williams v. United States the Court determined in which

cases an appellate court must reverse a sentence when the

district court has departed for one permissible and one

impermissible reason. Although its holding on this question does

not affect this case, the Court's opinion in several ways

supports an affirmance of the broad holding in Lopez. First, the
27

 

25 The majority finds some distinction between what the

Court calls an "authoritative guide" and an "infallible guide". 

See slip op. at 10-11 n.2. I find this either a distinction

without a difference or a distinction irrelevant in a court whose

function is to enforce authoritative law. I do not contend that

§ 4A1.3, or any subsection of the sentencing guidelines, is

infallible; like other laws, however, if it is authoritative and

if its applies we must enforce it whatever we think of its

correctness. 

The majority also finds a distinction between a "policy

statement that prohibits a district court from taking a specified

action", Williams, 117 L.Ed.2d at 353, and a policy statement

that requires a court to obey a carefully specified procedure. 

It would presumably contend that a policy statement that

prescribes a specific method of departing upwards in a limited

category of cases does not prohibit a district court from acting

otherwise. I do not read the Court's opinion in Williams so

narrowly. Nowhere does the Supreme Court suggest that using such

a distinction -- either between prohibitive and prescriptive

policy statements, or between applying the Guidelines with

greater or lesser precision according to our view of the

defendant's character -- would meet with its approval. 

 

26 I therefore take issue not only with the majority result

but with the categorization of its analysis. The majority

considers the only questions before it whether the district court

provided "acceptable reasons" for the upward departure and

whether its departure was reasonable. It fits the issue of §

4A1.3 into the second question. The question whether the

Court finds little, if any, distinction between a "policy

statement" and a "true" guideline; although § 4A1.3 is a "policy

statement", it must be obeyed.25 Second, the Court reminds us

that in certain situations we must reverse a sentence imposed

below: whenever the sentence was imposed as a result of an

incorrect application of the guidelines. Third, in the face of a

sharp dissent, it notes that a general test of reasonability

cannot be used to forgive an improper application of the

Guidelines. Even if the sentence imposed was within the

statutory minimum, it must be vacated if it was imposed through

an improper application of the Guidelines.26
28

sentencing court has complied with the procedure set out in §

4A1.3, however, is distinct from the question of reasonability. 

I concede that the district court gave adequate grounds for a

departure and I concede that its departure may have been

reasonable. Regardless of its possible compliance with those two

issues, however, the sentencing court failed to comply with a

third and separate procedural requirement that applies only to

cases in which the sentencing court feels that the defendant's

criminal history category significantly underrepresents his true

criminal history. See United States v. Hazel, 928 F.2d 420, 427

(Mikva, J., concurring in part and concurring in the result): 

Section 4A1.3, by dictating how a district court should

calculate the scope of a departure, is fundamentally

unlike the other departure sections in the Guidelines

which leave the degree of a departure entirely to the

district court's discretion. See U.S.S.G. §§ 5K1.1

(substantial assistance), 5K2.0 (other factors not

considered by the Commission). Indeed, § 4A1.3 is more

akin to the adjustments specified in Chapter 3 of the

Guidelines which provide for automatic departures in

certain circumstances.

 

27 See 117 L.Ed.2d at 350-51: "The District Court

determined that Williams' criminal history category was

inadequate because it did not include two convictions that were

too old to be counted in the Guidelines' criminal history

calculation, see USSG § 4A1.3 (Nov. 1991), and because it did not

reflect several prior arrests. Citing these two factors, the

court looked to the next highest criminal history category, for

which the guidelines range was 21 to 27 months. The court then

sentenced Williams to 27 months' imprisonment and explained that

it was selecting a sentence at the high end of the guidelines

range because Williams had previously been convicted for the same

offense and because he had threatened an undercover agent in this

case." (emphasis added) (citations to the record omitted).

Finally, although it was irrelevant to the issues on which

certiorari had been granted in Williams, the Court set out the

method by which the district court departed upwards; in every way

that method complied fully with the requirements of § 4A1.3.27

To follow Harvey and the 5th Circuit's Williams case would

contradict the Supreme Court's Williams case by suggesting that

we can ignore a district court's inattention to § 4A1.3 if the
29

 

28 915 F.2d 947, 948 (5th Cir. 1990) ("We will not disturb

a sentence that falls within the statutory limits, even though an

upward departure from the Guidelines, absent a 'gross abuse of

discretion'.")(quoting United States. v. Murillo, 902 F.2d 1169

(5th Cir. 1989). See slip op. at 14.

 

29 §3741(f)(1) states that if a court of appeals determines

that a sentence 

was imposed in violation of law or imposed as a result

of an incorrect application of the sentencing

guidelines, the court shall remand the case for further

sentencing proceedings with such instructions as the

court considers appropriate . . . .

defendant's criminal history was already high and if the sentence

itself falls within the statutory limits. Insofar as the quoted

phrase from United States v. Perez28 suggests that we can only

review a sentence within the statutory limits for a gross abuse

of discretion, it clearly violates Williams v. United States and

Guideline § 3742(f)(1)29 as clarified by the Supreme Court in

that case. That phrase applies only to testing the reasonability

of a sentence. At the very least, the phrase is misleading in

its suggestion that we continue to approve clear violations of

the Guidelines as long as the departure is not off the charts. 

The discretion the Guidelines grant to sentencing courts -- or to

us -- does not go so far.

V. Conclusion

So long as we are going to continue disposing of cases

addressing this issue summarily, I feel bound to follow Lopez. 

Our first case on the subject reads § 4A1.3 to apply to every

case in which the sentencing court departs because the criminal
30

 

30 I would also have thought that it was precluded by the

Constitution. Nor does the majority's extreme position have even

expediency on its side. The result of this case will further

complicate the already difficult job of the district courts in

applying the Guidelines. How will a sentencing judge know when

the defendant before him deserves the protection of § 4A1.3? 

What if a defendant with a criminal history category of II or III

(relatively low) has nevertheless "shown a consistent disrespect

for the law"? How will a district court know when the Guidelines

are "not so important"?

history category is inadequate. 

The revisionistic jurisprudence the majority chooses to

follow would class these requirements as technical niceties whose

neutral enforcement by the federal courts is "not so important"

when the defendant has broken the law more than once. I can find

no support in the Guidelines (and the majority cites none) for

arguing that a defendant whose criminal history category is high

deserves less protection from the requirements of the Guidelines

than one whose criminal history category is low. The unequal

application of such protection is unjustified in the light of the

unambiguous language of the law.30 I therefore dissent.