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,
which 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 (5th
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 departure 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 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,
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
2
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 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.
3
[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
whether 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 in
4
formulating the guidelines that should result 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 imposition of a sentence different
from that described." Id.
Section 4A1.3 of the guidelines articulates that an
upward departure sanctioned 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 the 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 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
5
guideline range for a defendant with a
Category VI criminal history may be warranted.1
This court's first significant interpretation of § 4A1.3
occurred four years ago in United States v. Lopez, 871 F.2d 513
(5th Cir. 1989). The district court in Lopez 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 category or to go beyond the range
corresponding to the highest Category VI.
However, in such cases the sentencing judge
should state definitively 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.
1
The guidelines have since been amended. See infra.
6
Lopez, applying § 4A1.3 literally, explicitly instructed
district courts considering an upward departure to evaluate the
sentence ranges for each criminal history category above the
defendant's assigned category and explain why it chose a particular
sentencing 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
category2; a few have attempted to limit Lopez to its facts by
denying the benefit of a § 4A1.3 articulation to defendants in high
criminal history categories3; and still others have simply
overlooked Lopez.4 Other circuits have relied on Lopez and
adopted, almost without exception, a strict approach to § 4A1.3.5
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
In United States v. Harvey,6 this court declined to
compel adherence to the procedure 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 guidelines, the
sentence imposed by the district court is limited only by the
statutory maximum sentence and the test of 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 motivated by
aversions both to straitjacketing district courts in the
technicalities of the guidelines and to remanding for resentencing
See 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 cases, like Harvey and the case before us, where it was plain
that the upward departure would be eminently reasonable after it
was 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 like Harvey may seem dubious,7 but
it is not a choice committed to the courts by the sentencing
guidelines. 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, Harvey 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. Williams held that a departure from the
guidelines sentence is infected by reversible error if it was based
7
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
on a misinterpretation of the policy statement accompanying the
guideline. ____ U.S. at ____, 112 S. Ct. at 1119.8 Williams
fortifies our reliance on the Lopez approach to application of
§ 4A1.3.9 Because Lopez and Williams are inconsistent with Harvey,
we must overrule Harvey and its progeny10 to the extent they suggest
that defendants in high criminal history categories deserve less
protection than defendants in low criminal history categories.11
Furthermore, we reaffirm our holding in Lopez that a district court
must evaluate each successive 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 should
8
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
state for the record that it has considered each intermediate
adjustment. Further, it should explain why the criminal history
category 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 adequate 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
explicit, in the court's explanation for its departure from the
category calculated under the guidelines and its explanation for
the category it has chosen as appropriate. In 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 legitimate basis or
bases on which the district court deemed the by-passed category
inadequate.
11
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 guidelines 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.'" United States v. Velasquez-
Mercado, 877 F.2d 632 (5th Cir.) (quoting United States v. Mejia-
Orosco, 867 F.2d 216, 219 (5th Cir.) cert. denied, 493 U.S. 866,
110 S. Ct. 187 (1989)). The specific questions before us today are
whether the district court adequately articulated its decision
based on the Lopez step-by-step approach to criminal history
departures and whether the district court imposed a reasonable
sentence.
Although the court's decision could have been more
explicitly tied to the incremental character of criminal history
12
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 highest category, would have
increased the defendant's maximum sentence only by three months.
The district court specifically concluded that the guidelines did
12
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
not reflect the seriousness of the Lambert's criminal history taken
as a whole.
The district court gave unimpeachable reasons for an
upward departure, and those reasons clearly demonstrate that an
additional three months of 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 sentence 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
articulated basis for departure. We hold that it was. The
ultimate sentence rose from 18 months to 36 months imprisonment,
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.
14