UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 91-1856

_______________________

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

DAVID LAMBERT,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

_________________________________________________________________

February 16, 1993

Before POLITZ, Chief Judge, WISDOM, REYNALDO G. GARZA , KING,

GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS , JONES, SMITH, DUHÉ, WIENER,

BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This case concerns § 4A1.3 of the Sentencing Guidelines,

w hich enunciates the procedure a district court must follow when

departing upward from the guidelines sentence because a defendant's

criminal history score inadequately reflects his culpability. A

divided panel of this court affirmed Lambert's conviction but noted

the intracircuit conflict in our approach to § 4A1.3. Proceeding

en banc

, we resolve the conflict by reaffirming the methodology for

a § 4A1.3 criminal history departure first expressed in United

States v. Lopez

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

decisions in United States v. Harvey

, 897 F.2d 1300, 1306 (5th2

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

United States v. Geiger

, 891 F.2d 512 (5th Cir. 1989), cert.

denied

, 494 U.S. 1087, 110 S. Ct. 1825 (1990), are overruled.

Under the Lopez approach, as explained herein, the district court's

sentence passes muster.

I.

BACKGROUND

Appellant Lambert pled guilty in April, 1991 to escaping

from a federal halfway house. 18 U.S.C. § 751(a ). The district

court sentenced him to 36 months' imprisonment, twice the possible

maximum term computed in accord with the guidelines.

The presentence report had suggested that Lambert's

sentence might deserve an upward de parture from the guidelines

range because his criminal history category (V) tended to

understate the seriousness of his criminal history or his potential

for recidivism. Persuaded by the Presentence Investigation Report,

the district court briefly summarized Lambert's criminal history at

the sentencing hearing. In 1976, Lambert committed an armed

robbery, for which he received two year s 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,

six years on the burglary count, and served the terms concurrently.

Seven years after the commencement of Lambert's incar ceration at

the Mississippi State Penitentiary, he was found in possession of

forged U.S. Postal Service money orders. After Lambert was3

discharged from the Mississippi facility, he began to serve a sixyear term in federal prison a nd thereafter committed the instant

offense.

At the sentenci ng 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 penitentiar y 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 ev er there was an instance where the

guidelines did not adequately consider the

seriousness of the offense that you have

committed, consider ing your criminal history

as a whole, this is that case.

I'm of the opinion that your criminal

history, particularly t he two offenses

committed while in lawful custody on other

offenses, are significantly more serious than

that of most defe ndants who are in this same

cr iminal history category. And you're in a

criminal history category of V, even after

giving you the two points for the a cceptance

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.4

[Emphasis added].

Accordingly, the court departed upward in sentencing

Lambert. On appeal, Lambert's sentence was initially affirmed.

II.

DISCUSSION

Sentencing under the guidelines is based primarily on the

evaluation of two variables: the offense level and the defendant's

criminal history score. Each of these variables is assigned a

point score according to the instructions given in the guidelines.

The defendant's criminal history score, with which we are here

concerned, is calculated by assigning points to prior convictions

depending upon such factors as the length of the sentence and

whe ther the instant offense was committed within two years of

release from prison or while under any criminal sentence. The

defendant is assigned to a criminal history category (from I to VI)

based upon the criminal history point score. The sentencing range

is then determined by cross-referencing the offense level with the

defendant's criminal history category on the guidelines' sentencing

table. The table sets sentencing ranges that allow the district

court some latitude to fine tune the sentence to the character of

the particular defendant and the circumstances of the offense.

A district court is not, however, utterly a slave to the

guideline grids; it may depart upward or downward from the sentence

range specified by the guidelines when it finds "an aggravating or

mitigating circumstance of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commission in5

formulating the guidelines that should resu lt in a sentence

different from that described." 18 U.S.C. § 3553(b). When

sentencing a defendant, the court "shall state in open court the

reasons for its imposition of the particular sentence." 18 U.S.C.

§ 3553(c). If the court departs, i .e.

, imposes a sentence outside

the range prescribed by the guidelines, the court must also state

"the specific reason for the imposit ion of a sentence different

from that described." Id

.

Secti o n 4A1.3 of the guidelines articulates that an

upward departure sanc tioned by § 3553(b) "is warranted when the

criminal history category significantly under-represents the

seriousness of the defendant's criminal history or the likelihood

that t he defendant will commit further crimes." At the time of

sentencing, the Sentencing Commission's § 4A1 .3 offered the

following guidance:

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 defendant with

a Category IV criminal history to gui de its

departure. The Commission contemplates that

t here may, on occasion, be a case o f an

egregious, serious criminal record in which

even the guidel ine 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 the1 The guidelines have since been amended. See infra

.

6 guideline range for a defendant with a

Category VI criminal history may be warranted. 1

This court's first significant interpretation of § 4A1.3

o ccurred four years ago in U nited States v. Lopez

, 871 F.2d 513

(5th Cir. 1989). The district court in L opez had found that the

defendant's criminal history score was zero, placing him in

Category I, the lowest possible category. But rather than impose

the guidelines-determined sentence, the district court departed

from the guidelines and imposed a sentence equal to the maximum

sentence for that offense for a defendant with a Category V

criminal history. Noting that the district court had not

considered any intermediate sentence ranges, this court vacated the

district court's sentence, explaining:

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.

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 cat egory or to go beyond the range

corresponding to the highest Category VI.

However, in such cases the sentencing judge

should state definitively tha t 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 515.2 See United States v. Carpenter , 963 F.2d 736, 745 (5th

Cir. 1992); United States v. Lee , 955 F.2d 14, 15-16 (5th Cir.

1992); United States v. Jones , 905 F.2d 867, 869-70 (5th Cir.

1990).

3 See United States v. Williams , 937 F.2d 979, 984 (5th

Cir. 1991); Cantu-Dominguez , 898 F.2d at 971 (following Lopez

, but recognizing the limitation announced in Harvey ); United

States v. Harvey , 897 F.2d 1300, 1306 (5th Cir. 1990).

4 See

, e.g.

, United States v. Carter , 953 F.2d 1449 (5th

Cir. 1992); United States v. Sanchez , 893 F.2d 679 (5th Cir.

1990); United States v. Campbell , 878 F.2d 164 (5th Cir. 1989);

United States v. Geiger , 891 F.2d 512 (5th Cir. 1989); United

States v. Lopez-Escobar , 884 F.2d 170 (5th Cir. 1989); United

States v. Rivera , 879 F.2d 1247 (5th Cir. 1989).

5 See Taylor v. United States , 493 U.S. 906, 110 S. Ct.

265 (1989) (Stevens, J., concurring in the denial of cert.)

(agreeing with Lopez ); 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. Summers , 893 F.2d 63, 68 (4th Cir.

1990); United States v. Coe , 891 F.2d 405, 412-14 (2d Cir. 1989).

7 Lopez

, applying § 4A1.3 literally, explicitly instructed

district courts considering an upward de parture to evaluate the

sentence ranges for each criminal history category ab ove the

defendant's assigned category and explain why it chose a particular

sentencin g range rather than some lesser range associated with a

lower criminal history score.

After Lopez , some panels of this court have adopted its

ruling

, without regard to the defendant's criminal history

categor y 2 ; a few have attempted to limit L opez to its facts by

denying the benefit of a § 4A1.3 articulation to defendants in high

criminal history categories 3 ; and still others have simply

overlooked Lopez

. 4 Other circuits have relied on L opez and

adopted, almo st without exception, a strict approach to § 4A1.3. 5See also 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); United States v. Jackson , 883 F.2d 1007, 1009 (11th Cir.

1989); United States v. Cervantes , 878 F.2d 50, 54 (2d Cir.

1989). See generally United States v. Jackson , 921 F.2d 985, 991

(10th Cir. 1990) (en banc). The Court found in Jackson that even

though the degree of departure arrived at by the sentencing court

was not presumptively unreasonable, it had failed to explain the

degree of departure and why it decided to exceed criminal history

category VI. Thus even Jackson --a case that refuses to apply §

4A1.3 strictly--requires a remand in this case.

6 897 F.2d 1300 (5th Cir.), cert. denied , ____ U.S. ____,

111 S. Ct. 568, 112 L.Ed.2d 574 (1990).

8 In United States v. H arvey

, 6 this court declined to

compel adherence to the procedu r e recognized in Lopez

,

characterizing the earlier case as "narrow" and " confined to those

cases with 'low criminal history scores.'" 877 F.2d at 1306.

Under Harvey and cases that have followed it, a district court need

consider higher criminal history categories only when the defendant

has a low criminal history score; when the defendant is already in

one of the higher categories, however, a district court may

exercise its discretion and depart upward, as long as the sentence

is reasonable. Id . That is, once the district court can provide

adequate justification for departing from the g u idelines, the

sentence imposed by the district court is limited only by the

statutory maximum sentence and the test o f reasonableness. This

line of reasoning is also followed by our cases which ignore Lopez

altogether. See supra note 4.

Harvey and its progeny were apparently mot i vated by

aversions both to straitjacketing district courts in the

technicalities of the guidelines and to remanding for resentencing7 See

, e.g. , Bruce M. Selya & Matthew R. Kipp, An

Examination of Emerging Departure Jurisprudence Under the Federal

Sentencing Guidelines , 67 Notre Dame L. Rev. 1, 49 (1991). While

Selya and Kipp are correct that a court reviewing a sentence

should not focus exclusively on "the intricacies of the

calculations that produced it," there is no reason to think that

Congress intended such departure sentences to be made almost

entirely outside the scope of the Guidelines.

9 in cases, like Harvey and the case before us, where it wa s plain

that the upward departure wou ld be eminently reasonable after it

w as properly explained by the district court. The cost of a

resentencing proceeding is very high--in court time and in imposing

on the prison system and the marshals to assure a defendant's

removal from prison to court. Whether this cost is offset by the

additional assurance of uniformity and adherence to proper

guidelines procedures in cases li ke H arvey may seem dubious, 7 but

i t is not a choice committed to the courts by the sen tencing

guidelin es. The Commission made that decision by writing its

policy statement in § 4A1.3, which directs a district court to

proceed in a methodical step-by-step manner in which it carefully

considers each intermediate criminal category en route to the

sentence it ultimately settles upon. Thus, although pursuing good

intentions, Harve y essentially waived § 4A1.3 for defendants in

high criminal history categories. Harvey misapplied § 4A1.3.

Moreover, following Williams v. United States

,

____ U.S.

____, 112 S. Ct. 1112 (1992), it cannot be contended that courts

may discount the Sentencing Commission's policy statements

explaining the guidelines. W illiams held that a departure from the

guidelines sentence is infected by reversible error if it was based8 18 U.S.C. § 3742(f) states that a sentence must be

reversed on appeal if it was imposed "as a result of an incorrect

application of the sentencing guidelines."

9 See United States v. Ayers , 946 F.2d 1127, 1130-31 (5th

Cir. 1991).

10 See, e.g.

, Williams , 937 F.2d at 984; United States v.

Rogers , 917 F.2d 165, 169-70 (5th Cir. 1990); United States v.

Fields , 923 F.2d 358, 361 (5th Cir. 1991); United States v.

Rogers , 917 F.2d 165, 169-70 (5th Cir. 1990).

11 See

, e.g.

, Williams , 937 F.2d at 984; United States v.

Rogers , 917 F.2d 165, 169-70 (5th Cir. 1990); United States v.

Fields , 923 F.2d 358, 361 (5th Cir. 1991); United States v.

Rogers , 917 F.2d 165, 169-70 (5th Cir. 1990).

10 on a misinterpretation of the policy statement accompanying the

guideline. ____ U.S. at ____, 112 S. Ct. at 1119. 8 W illiams

fortifies our reliance on the Lopez approach to application of

§ 4A1.3. 9 Because L opez and Williams are inconsistent with Harvey

,

we must overrule Harvey and its progeny 10 to the extent they suggest

that defendants in high criminal history cate gories deserve less

protection than d efendants in low criminal history categories. 1 1

Furthermore, we reaffirm our holding in Lopez that a district court

must evaluate each succes sive criminal history category above or

below the guideline range for a defendant as it determines the

proper extent of departure.

We recognize that in some cases the district court may be

justified in imposing a sentence that reflects a much higher

criminal history category or in going beyond the guidelines

completely. When making such a departure, the district court

should consider each intermediate criminal history category before

arriving at the sentence it settles upon; indeed, the court should11

state for the record th at it has considered each intermediate

adjustment. Further, it should explain why the criminal history

c ategory as calculated under the guidelines is inappropriate and

why the category it chooses is appropriate. If the district court

finds that it is necessary to go beyond the guidelines, the court

must give ad equate reasons why the guideline calculation is

inadequate and why the sentence it imposes is appropriate.

We do not, however, require the district court to go

through a ritualistic exercise in which it mechanically discusses

each criminal history category it rejects en route to the category

that it selects. Ordinarily the district court's reasons for

rejecting intermediate categories will clearly be implicit, if not

explic it, in the court's explanation for its departure from the

category calc ulated under the guidelines and its explanation for

the category it has chosen as appropriate. I n a very narrow class

of cases, we can conceive that the district court's departure will

be so great that, in order to survive our review, it will need to

explain in careful detail why lesser adjustments in the defendant's

criminal history score would be inadequate. Also, in some cases it

will not be evident simply from the stated ground for departure why

a sentence commensurate with a bypassed criminal history category

was not selected; in that event, the appellate court must be able

to ascertain from the reasons given for the sentence selected, read

in the context of the record as a whole, the legitima te basis or

bases on which the district court deemed the by-passed category

inadequate.12 We find additional support for these requirements in the

Sentencing Commission's November 1, 1992, amendment to § 4A1.3

regarding departures above criminal history Category VI. According

to the amendment, when a district court intends to depart above

Category VI, it should still stay within the gu idelines by

considering sentencing ranges for higher base offense levels. This

amendment emphasizes the Commission's concern for systematic,

uniform sentences even in cases where a departure is appropriate.

In addition, it virtually compels the district court to follow an

approach to departures that considers the guidelines grid on a step

by step basis and carefully to explain the basis for the sentence

it settles upon.

III

APPLICATION

"A departure from the guidelines will be affirmed if the

district court offers 'acceptable reasons' for the departure and

the departure is 'reasonable.'" U nited States v. VelasquezMercado , 877 F.2d 632 (5th Cir.) (quoting United States v. MejiaO rosco , 867 F.2d 216, 219 (5th Cir.) c ert. denied

, 493 U.S. 866,

110 S. Ct. 187 (1989)). The specific questions before us today are

whether the district court ad equately articulated its decision

based on the Lopez step-by-step a pproach to criminal history

departures and whether the district court i mposed a reasonable

sentence.

Although the court's decision cou ld have been more

explicitly tied to the incremental character of criminal history12 Even if we were to conclude that the district court did

not follow Lopez here, because it failed precisely to articulate

the impact of category VI on appellant's ultimate sentence, we

would not reverse, because the error here is harmless. Under

Williams

,

3 [O]nce the court of appeals has decided that the

district court misapplied the guidelines, 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 sentence imposed.

Williams , 112 S. Ct. at 1120-21.

The linchpin of this case is the fact that a criminal history

category of VI would only increase Lambert's sentence by 3

months. The district court's § 3553 reasons very adequately

state why a three month upward departure is inadequate.

13 departures, we are satisfied that the appellate record presents a

basis upon which we may reasonably conclude that the district court

thoroughly considered the appropriate guidelines in arriving at its

ultimate sentence. 12 In this case, Lambert's presentence report

calculated a criminal history category of V. The district court

set out specifically the factors that the guidelines did not take

into account: that Lambert used weapons in two of his crimes, that

two of his previous crimes were committed while serving time for

other crimes, and that two crimes were counted as only one because

they had been consolidated. The court explicitly noted that an

upward departure of one level would put Lambert in criminal history

category VI, the highest category. Departing up one level, to

criminal history category VI, the h ighest category, would have

increased the defendant's maximum sentence only by three months.

The district court specifically concluded that the guidelines did14

not reflect the seriousness of the Lambert's criminal history taken

as a whole.

T he district court gave unimpeachable reasons for an

upward departure, and those reasons clearly demonst rate that an

additional three months o f incarceration would have been

inadequate. We think that this appeal is one of the cases in which

the district court's explanation for its sentence also explains why

it rejected a lesser departure. Indeed, it is not clear what else

the court could have said to explain its senten ce other than to

repeat the various factors in the defendant's criminal history for

which the guidelines did not account. As we have earlier stated,

we will not require the district court to ritualistically discuss

each criminal history category it rejects.

The final question is whether the 18-month departure

imposed by the district judge was reasonable in light of his

articulat ed basis for departure. We hold that it was. The

ultimate sentence rose from 18 months to 36 months impris onment,

but this result is not disproportionate in light of Lambert's

consistent, serious criminal history.

For the foregoing reasons, the judgment of the district

court is AFFIRMED

.