dissenting.
I cannot join the court’s opinion because I believe that it is inconsistent with our two prior decisions in this case, United States v. Shoupe, 929 F.2d 116 (3d Cir.1991) (“Shoupe I”), and United States v. Shoupe, 988 F.2d 440 (3d Cir.1993) (“Shoupe II”).
When the district court first sentenced the defendant in 1990, it granted a downward departure based on the following factors: the defendant’s age and immaturity at the time of the first offenses counted for career-offender purposes, the time between his prior crimes, his alleged cooperation with the authorities in connection with those offenses, and his family responsibilities. The government appealed, and in Shoupe I, we reversed. We noted that under 18 U.S.C. § 3553(b) a sentencing court may not grant a departure “ ‘unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guideline that should result in a sentence different from that described.’ ” 929 F.2d at 119 (quoting 18 U.S.C. § 3553(b)). Concluding that all of the factors cited by the district court had been “ ‘adequately taken into consideration by the Sentencing Commission in formulating’ the career offender guideline,” 929 F.2d at 119-20 (quoting 18 U.S.C. § 3553(b)), we held that the district court’s downward departure was improper, and we remanded for resentencing.
On remand, the defendant again sought a downward departure based on many of the same mitigating factors considered in Shoupe I. The defendant argued that Shoupe I, while prohibiting a departure pursuant to 18 U.S.C. § 3553(b) and its implementing guideline (U.S.S.G. § 5K2.0), did not foreclose a departure pursuant to U.S.S.G. § 4A1.3, which permits a departure if a defendant’s “criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” The district court rejected this contention, holding that Shoupe I precluded such a departure based on the factors that the defendant cited.
In Shoupe II, however, our court reversed. The Shoupe II panel acknowledged that the defendant could not obtain a departure under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0 based on the same factors considered in Shoupe I. But the Shoupe II panel drew a sharp distinction between, on the one hand, a departure under 18 U.S.S.G. § 3553(b) and U.S.S.G. 5K2.0 and, on the other hand, a departure under U.S.S.G. § 4A1.3. See 988 F.2d at 444-447. Among other things, the court noted that in U.S.S.G. § 4A1.3, “the Commission specifically provided district courts with flexibility to adjust the cnminal history category.” 988 F.2d at 445 (emphasis added). The court further observed that a departure under Section 4A1.3 is “structurally” unlike a departure under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0. Id. When a departure is granted under Section 4A1.3, the court wrote, the sentencing judge must look to the sentencing range that would apply if the defendant’s criminal history category were adjusted. See id. at n. 7. By contrast, the court stated, departures under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0 are relatively “unstructured.” Id.
On remand, the district court reduced the defendant’s criminal history category from *840VI to III and thus reduced his sentence from 168 months to 121 months. However, the district court concluded that Shoupe I and Shoupe II prohibited a reduction in-the defendant’s offense level based on the factors considered in Shoupe I.
Reviewing this decision, the majority now concludes that the district court erred in refusing to reduce the defendant’s offense level as well as his criminal history category. The majority notes that the career-offender provision of the guidelines (U.S.S.G. § 4B1.1) increases both a defendant’s offense level and criminal history category. The majority thus reasons that, if a defendant who falls within the career-offender guideline is eligible for a departure under U.S.S.G. § 4A1.3 because his criminal history category overrepresents the seriousness of his past criminal conduct or likelihood of recidivism, the defendant should be eligible for a reduction in both the offense level and a criminal history category. Assuming that the majority’s approach is correct as a general proposition, I do not think that its use in this case can be reconciled with Shoupe I and Shoupe II.
Shoupe I, rightly or wrongly, held that, under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0, the defendant could not obtain a downward departure based on the factors cited by the district court. Shoupe II, rightly or wrongly, held that Shoupe I did not apply to a departure under U.S.S.G. § 4A1.3. The language of Section 4A1.3 seems quite clear in restricting such departures to changes in the criminal history category. Such departures are triggered when “the criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3 (emphasis added). This provision adds:
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.
Id. (emphasis added). Thus, I do not see how a Section 4A1.3 departure (as distinct from a departure under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0) can alter a defendant’s offense level.
We are bound by Shoupe I and Shoupe II whether or not we think that they were correctly decided, and under those decisions, I think that the defendant has already received the only downward departure that is possible based on the factors in question. I would therefore affirm the judgment of the district court.