United States Court of Appeals,

Eleventh Circuit.

No. 94-8543.

UNITED STATES of America, Plaintiff-Appellee,

v.

Larry Armstead DIXON, Defendant-Appellant.

Dec. 27, 1995.

Appeal from the United States District Court for the Middle

District of Georgia. (No. 5:93-00077-CR-MAC(WDO), Wilbur D. Owens,

Jr., District Judge.

Before KRAVITCH and COX, Circuit Judges, and CLARK, Senior Circuit

Judge.

KRAVITCH, Circuit Judge:

This case presents the issue of the procedure sentencing

courts must follow when imposing an upward criminal history

departure above category VI, pursuant to U.S.S.G. § 4A1.3. We hold

that sentencing courts need not make step-by-step findings en route

to the ultimate sentencing range; rather, criminal history

departures above category VI will be reviewed for reasonableness,

based on findings as to why an upward departure is warranted and

why the particular sentencing range chosen is appropriate.

I.

Larry Armstead Dixon pled guilty to possession of a stolen

firearm by a convicted felon, in violation of 18 U.S.C. §

922(g)(1). Included in the plea agreement was Dixon's stipulation

to six prior armed robbery and burglary offenses, qualifying him

for an enhanced sentence as an "armed career criminal" under 18

U.S.C. § 924(e) (carrying a mandatory minimum sentence of fifteen

years).
 1

Sentencing took place on April 26, 1994. 

 2The court noted that Dixon's 28 criminal history points

would, extrapolating beyond category VI, place him in a

hypothetical category XI. 

Dixon has a prolific criminal history, including convictions

for numerous violent felonies and drug offenses. The presentence

investigation report ("PSI") calculated that Dixon had accumulated

28 criminal history points, placing him in category VI (the highest

category, for those with thirteen or more points), and that his

total offense level was 30. At sentencing, 1 the district court

found, pursuant to U.S.S.G. § 4A1.3, p.s., that category VI did not

adequately reflect the seriousness of Dixon's past criminal conduct

or the likelihood of recidivism and decided to depart upward.2 The

court then determined Dixon's sentence, as follows:

[W]hat the Court's going to do, pursuant to 4A1.3, is

structure a departure by moving incrementally down the

sentencing table to find a guideline range which is

appropriate in your case. In doing that, the Court determines

that a three-level increase is warranted and that will create

an offense level of 33 and a criminal history category of VI

which will give you a sentencing range of 235 to 293 months.

R2-9. The court proceeded to impose a 250 month sentence.

II.

 Dixon contends that the district court erred in upwardly

departing to a sentencing range three offense levels higher than

Dixon's without first explicitly considering whether the ranges

corresponding to offense levels one and two higher than Dixon's

would have been appropriate. Dixon does not challenge the

reasonableness of the district court's decision to depart upward

pursuant to § 4A1.3 in a situation such as this, where the number

of criminal history points far exceeds the category VI range, nor
 3

Although Brown at one point quotes the amended version of §

4A1.3, 9 F.3d at 909 n. 2, the opinion does not provide the date

on which sentencing occurred, nor does it specify which version

of § 4A1.3 is being applied. Because the opinion does not

mention the 1992 amendment to § 4A1.3, we assume that the

criminal history departure above category VI in Brown was imposed

pursuant to the pre-amendment guideline. 

does he dispute his extensive criminal history as described in the

PSI. Rather, Dixon argues that the district court's procedure for

determining the extent of the departure was flawed because it did

not include step-by-step findings for each rejected sentencing

range.

Section 4A1.3 of the Guidelines was amended in 1992 to include

a procedure for upwardly departing beyond criminal history category

VI:

Where the court determines that the extent and nature of the

defendant's criminal history, taken together, are sufficient

to warrant an upward departure from Criminal History Category

VI, the court should structure the departure by moving

incrementally down the sentencing table to the next higher

offense level in Criminal History Category VI until it finds

a guideline range appropriate to the case.

U.S.S.G. § 4A1.3, p.s. Prior to the addition of this language,

courts in this circuit had reviewed departures above category VI

only for reasonableness, not requiring the sentencing court to

provide explicit justification for rejecting intervening sentencing

ranges before settling on an appropriate range within which to

sentence. See United States v. Brown, 9 F.3d 907 (11th Cir.1993),

cert. denied, --- U.S. ----, 115 S.Ct. 152, 130 L.Ed.2d 91 (1994);3

United States v. Simmons, 924 F.2d 187 (11th Cir.1991). This is in

contrast to the established procedure for upwardly departing from

a criminal history category below IV, which requires the sentencing

court to discuss each category it passes over en route to the
 4

This issue recently was noted, but not decided, in United

States v. Maurice, 69 F.3d 1553, 1558-59 (11th Cir.1995). 

category that adequately reflects the defendant's past criminal

conduct. See United States v. Williams, 989 F.2d 1137, 1142 (11th

Cir.1993); United States v. Johnson, 934 F.2d 1237, 1239-40 (11th

Cir.1991).

This case presents an issue of first impression in this

circuit: whether the 1992 amendment to § 4A1.3 should require

sentencing courts to follow a procedure analogous to the one

mandated by Johnson and Williams when imposing criminal history

departures above category VI.4 Such a procedure would necessitate

findings by the sentencing court as to the appropriateness of the

sentencing range corresponding to each incremental offense level

considered in moving vertically down category VI of the sentencing

table, as described in the amended § 4A1.3.

Other circuits to have considered the issue of departures

above category VI in light of the 1992 amendment have declined to

require step-by-step findings. See United States v. Daughenbaugh,

49 F.3d 171, 174-75 (5th Cir.) (requiring "only that the district

court consider each intermediate adjustment and state that it has

done so, and explain why the guideline category is inappropriate

and why the category chosen is appropriate; stating that such an

explanation will ordinarily make sufficiently clear why the

intermediate adjustments are inadequate"), cert. denied, --- U.S.

----, 116 S.Ct. 258, --- L.Ed.2d ---- (1995); United States v.

Thomas, 24 F.3d 829, 834-36 (6th Cir.) (rejecting the requirement

that a district court "provide a mechanistic recitation of its
rejection of the intervening, lower guideline ranges"), cert.

denied, --- U.S. ----, 115 S.Ct. 453, 130 L.Ed.2d 362 (1994);

United States v. Harris, 13 F.3d 555, 558-59 (2d Cir.1994) (reading

the amended § 4A1.3 "as merely suggesting an approach, rather than

mandating a step-by-step analysis").

As these other circuits have recognized, there is an important

distinction between upwardly departing from criminal history

categories below VI and above VI. When departing from a category

below VI, courts can juxtapose the defendant's past conduct with

the guideline criteria for each criminal history category; this

allows for incremental findings based on the objective criminal

history criteria explicated in the guidelines, and thereby for

meaningful appellate review. On the other hand, a court following

the amended § 4A1.3 procedures for departing above category VI

increases the defendant's offense level only as a proxy for

increasing the effect of the defendant's criminal history on his or

her ultimate sentence. The guidelines provide no objective

criteria for determining how far down the offense level axis the

sentencing court need travel in order to reflect accurately the

defendant's criminal history. Instead, the sentencing court must

use its discretion in determining which offense level corresponds

to the appropriate sentencing range for a given defendant.

This does not mean that the sentencing court is free to ignore

the procedure described in amended § 4A1.3. The 1992 amendment was

designed to clarify the proper approach to criminal history

departures above category VI and to disapprove alternative

approaches courts had taken, for instance moving horizontally on
the criminal history axis of the sentencing table to fictitious

categories above VI. See, e.g., United States v. Cash, 983 F.2d

558, 561 (4th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct.

2380, 124 L.Ed.2d 284 (1993); United States v. Streit, 962 F.2d

894, 905-06 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 431,

121 L.Ed.2d 352 (1992); United States v. Glas, 957 F.2d 497 (7th

Cir.1992); United States v. Jackson, 921 F.2d 985, 993 (10th

Cir.1990) (en banc). We hold that district courts, in following

the methodology described in amended § 4A1.3 for imposing criminal

history departures above category VI, need not explicitly discuss

their reasons for bypassing incremental offense level sentencing

ranges. Rather, the magnitude of these upward departures will be

reviewed for reasonableness, based on findings by the district

court as to (1) why the extent and nature of the defendant's

criminal history warrants an upward departure from category VI, and

(2) why the sentencing range within which the defendant is

sentenced is appropriate to the case.

In this case, the district court stated that it had moved

incrementally down category VI until it found a guideline range

appropriate to Dixon's case. Prior to making this determination,

the court referenced the detailed catalogue of Dixon's extensive

criminal history contained in the PSI and noted his total of 28

criminal history points. Dixon does not dispute the reasonableness

of the departure. On these facts, we conclude that the district

court provided adequate findings in support of its decision to

depart upward from criminal history category VI to impose a

sentence of 250 months.
III.

 Dixon also contends that he was not given adequate notice of

the possibility of an upward departure. Before imposing an upward

departure "on a ground not identified as a ground for upward

departure either in the presentence report or in a prehearing

submission by the Government," a district court must give

"reasonable notice that it is contemplating such a ruling." Burns

v. United States, 501 U.S. 129, 137-39, 111 S.Ct. 2182, 2187, 115

L.Ed.2d 123 (1991); e.g., United States v. Valentine, 21 F.3d 395,

397 (11th Cir.1994). This requirement of reasonable notice follows

from the mandate of Fed.R.Crim.P. 32(c)(1) that the parties be

given "an opportunity to comment upon the probation officer's

determination and on other matters relating to the appropriate

sentence."

Dixon's PSI included the following language relevant to upward

departure:

Part E. FACTORS THAT MAY WARRANT UPWARD DEPARTURE

Pursuant to U.S.S.G. § 4A1.3, adequacy of criminal

history category, states that if reliable information

indicates the criminal history category does not adequately

reflect the seriousness of the defendant's past criminal

conduct, or the likelihood that the defendant would commit

future crimes, the Court may consider imposing a sentence

departing from the otherwise applicable guideline range. In

this case, the defendant has 28 criminal history points,

making him a criminal history category of VI. Defendant's

extensive history of crime involves mostly burglaries, armed

robberies and firearm charges. The seriousness of his

criminal actions is reflected in the large number of criminal

history points that he has acquired.

Dixon argues that although this language may have given notice that

his criminal history could warrant a sentencing departure, it

failed to inform him that this departure might be upward. We find
it impossible to believe that the probation officer's focus on

Dixon's 28 criminal history points, his "extensive history of

crime," and the "seriousness of his criminal actions" could have

been interpreted as harbingers of a downward departure, however.

Indeed, Dixon objected to Part E of the PSI in his Objections to

the Pre-Sentencing Investigation Report, specifically arguing

against an upward departure. And he again raised the possibility

of, and argued against, upward departure at the sentencing hearing.

We thus conclude that the PSI gave Dixon reasonable notice that his

criminal history might serve as a ground for upward departure.

We AFFIRM Dixon's sentence.