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 *720Court’s most recent opinion on the Guidelines, I respectfully dissent.
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.1
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. Lopez2 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, resen-tencing is appropriate.3
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 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,4 the Court wrote that “[i]t is important to note, how*721ever, 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 YI. 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 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,5 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,6 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.”7 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 — 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 § 4A1.3.8
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 other opinion has yet inserted this distinction into the Guide*722lines. 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 § 4A1.3.9 (Many other circuits have cited Lopez to support that reading.)10 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 imposed in this case.11 The 1st Circuit, although it acknowledges the unavoidably clear meaning of § 4A1.3,12 has affirmed upward departures that lacked a step-by-step explanation when there were alternate justifications for the departure.13 Although the 9th Circuit similarly affirms the plain meaning of § 4A1.3,14 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).15 In sum, no other circuit court holds that the application of § 4A1.3 is 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.16 But the rule is there. I do not think that we may replace the Guidelines with our own conception of *723how 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 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.17 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.18
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 § 4A1.3.19
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 *724inattention to § 4A1.3 if the 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. Perez20 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)21 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 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.22 I therefore dissent.
. 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 sentence it imposed in the manner that the Guidelines insist it must.
. 871 F.2d 513 (5th Cir.1989).
. Lopez, 871 F.2d at 515.
. 897 F.2d 1300, 1306 (5th Cir.), cert. denied, — U.S. —, 111 S.Ct. 568, 112 L.Ed.2d 574 (1990).
. 905 F.2d 867, 869 (5th Cir.1990).
. 937 F.2d 979, 984 (5th Cir.1991).
. Id. at 984.
. 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 *722Category 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).
. 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 63, 68 (4th Cir.1990); United States v. Coe, 891 F.2d 405, 412-14 (2d Cir.1989).
. 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 Selya 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. Selya and Matthew R. Kipp, An Examination of Emerging Departure Jurisprudence Under the Federal Sentencing Guidelines, 67 No-tre 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.
. 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.
. See United States v. Figaro, 935 F.2d 4, 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.
. 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).
. 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).
. 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, — U.S. —, 112 S.Ct. 112, 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).
. Selya and Kipp, supra note 10. Seelya and Kipp acknowledge that their position goes against all but two circuit courts. Id. at 41 n. *723212. 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.
. The majority finds some distinction between what the Court calls an “authoritative guide” and an "infallible guide”. See Maj. op. at 717 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 it 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, — U.S. at —, 112 S.Ct. at 1119, 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.
. 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 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.
. See - U.S. at -, 112 S.Ct. at 1117, 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 *724USSG § 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).
. 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 Maj. op. at 718.
. § 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. ...
.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"?