dissenting:
Defendant Alvin Thomas Harrison, Jr., was indicted in 12 counts for participation in an international conspiracy to distribute and sell controlled substances. Pursuant to a plea agreement, he pled guilty to one count of conspiring, over a period from December 1990 to February 1992, to import marijuana and cocaine in violation of 21 U.S.C. § 963. At sentencing, the probation office calculated that Harrison’s offense level was 27 and that, with 45 criminal history points, his criminal history category was VI, for a sentencing range of 130-162 months imprisonment. Departing upwardly because that criminal history category did not adequately represent Harrison’s past criminal conduct, the district court sentenced Harrison to 235 months imprisonment. On appeal Harrison challenges the upward departure. For the reasons that follow, I would affirm.
Harrison has an exceptionally long history of criminal conduct, repeatedly and predictably committing crimes over a ten-year period during which he was an adult. He was convicted on 18 separate occasions, and on most occasions, the prosecutor aggregated several different violations committed at different times. During the ten-year period, Harrison was convicted of over 30 separate breaking and enterings, usually of commercial establishments, although this is not firmly established in the record. He was arrested on numerous other occasions for criminal conduct where the charges were dismissed, usually because the prosecuting witness did not appear. These included arrests for six other breaking and enterings, assault on a female, and resisting arrest. The aggregate criminal history points assessed in the pre-sentence investigation report by the probation officer total 45. The report advised Harrison that he should be prepared at sentencing to present evidence and make argument regarding the possibility that the court would depart upwardly if Harrison’s criminal history category did not adequately reflect the seriousness of Harrison’s past criminal conduct.
*120In sentencing Harrison, the district court concluded that:
[T]he defendant’s criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct, or the likelihood that he will commit other crimes, and the repetitive nature and seriousness of his prior criminal conduct involving breaking and entering offenses, warrants upward departure to punishment commensurate with career offender provisions.
The district court could not sentence Harrison as a career offender because it could not be determined from the record whether any of Harrison’s breaking and entering convictions involved a dwelling or an establishment with persons in it so as to present “a serious potential risk of physical injury to another.” See U.S.S.G. § 4B1.2(1)(ii). Only two such predicate offenses would be required to sentence Harrison as a career offender. See U.S.S.G. § 4B1.1. Nevertheless, the court found that the accumulation of Harrison’s past criminal conduct was equivalent in seriousness to career offender status. Since career offender status specifies sentencing at a particular offense level and criminal history category, the court proceeded to that level and category to sentence Harrison. Presumably applying the guidelines of U.S.S.G. § 4B1.1, the court sentenced Harrison to 235 months imprisonment.
I believe that the district court’s method fully complied with the Sentencing Guidelines and with our precedents in United States v. Cash, 983 F.2d 558 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2380, 124 L.Ed.2d 284 (1993), and United States v. Rusher, 966 F.2d 868 (4th Cir.), cert. denied, — U.S. , 113 S.Ct. 351, 121 L.Ed.2d 266 (1992).
The Sentencing Guidelines provide that the court may depart upwardly when “reliable information indicates that 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, p.s. The information may relate either to prior sentences or to prior similar adult criminal conduct not resulting in a conviction. Id. The policy statement provides that when the court concludes from a review of this information that the defendant’s criminal history “was significantly more serious than that of most defendants in the same criminal history category,” it may consider an upward departure. Id. When departing upward, the court should attempt to evaluate the defendant’s past criminal conduct and place it by analogy within the existing Sentencing Guideline structure. For instance, the Guidelines instruct that if the court finds that Criminal History Category III significantly under-represents the defendant’s criminal history, and the seriousness of the defendant’s criminal past most closely resembles that of “most defendants” with a criminal history category of IV, the court may proceed to sentence the defendant under Category IV. Id.
In Rusher, we held that when departing upward, the court is not authorized by the Sentencing Guidelines to exercise unguided discretion by simply selecting a sentence which the court finds appropriate and then working backwards to find a guideline range that matches the selected sentence. To sentence in that fashion would violate the structure and procedures imposed by the Sentencing Guidelines. In Rusher, the district court asked the probation officer, “How far do I have to deviate upward, to what criminal offense level, to give him 120 months?” Holding that method improper, we stated:
The court essentially bypassed the criminal history categories entirely in its desire to impose a particular sentence. This cannot be done under the sentencing guidelines regime. Sentencing is not purely a matter of judicial discretion, but must be done by reference to the guidelines and their stated criminal history categories.
966 F.2d at 883.
In Cash, however, we approved a district court’s upward departure, moving directly to the career offender level even though the defendant’s conduct did not strictly meet the requirements of career offender status because the predicate offenses were subject to constitutional challenge. 983 F.2d at 562. We held that if the past criminal conduct of a defendant would place him in career offender status but for the fact that one or both of the prior predicate offenses may not be counted *121because of a constitutional infirmity, the court could still sentence at the career offender level by departing upward based on the underlying conduct. In proceeding directly to career offender status, we authorized the court to skip over any criminal history categories between the originally specified category and career offender status, since a finding that the defendant’s conduct was tantamount to career offender status “includes an implicit finding that each successive criminal history category that would not produce a career offender status inadequately represents the seriousness of the defendant’s criminal conduct.” Id. In Cash, therefore, we concluded, despite any dicta to the contrary in Rusher, that a level-by-level consideration was not always necessary. See id. at 561-62 & n. 7.
In this case, even though the reason for finding Harrison’s past conduct to be commensurate with career offender status was not the same as that relied on in Cash, the methodology utilized was the same in both eases. In both cases, the technical definition of career offender status could not be met, but the district courts found that the past conduct was commensurate with career offender status. In Cash, there were constitutional challenges to the predicate crimes of violence; in this case the record was insufficient to determine whether, in at least two breaking and enterings, there was a risk of physical injury to others. In this case there is the additional fact that Harrison’s past criminal conduct was constant and repeated over a period of 10 years. Not only did Harrison break into and enter over 30 different establishments and buildings, he was arrested for having assaulted a female and he resisted arrest, neither of which yielded criminal charges because the prosecuting witnesses did not wish to proceed. The Sentencing Guidelines assign 45 points to Harrison’s criminal past, a criminal history level that is more than three times the highest on the Sentencing Guidelines chart and more than I have ever seen while sitting on this court. While the particular circumstances of Harrison’s criminal conduct eoncededly do not satisfy the statutory definition of a career offender, the district court did not abuse its discretion in finding his conduct to be commensurate with career offender status. Evaluating Harrison’s criminal history through another method corroborates the district court’s conclusion. If we were to extend the criminal history category chart, extrapolating horizontally beyond the existing sentencing table, as authorized in Cash, 983 F.2d at 561, Harrison would merit a criminal history category of approximately XVI. And, at an offense level of 27, his projected sentence would be far greater than that selected by the district court.
Once we determine that the district court did not abuse its discretion in finding that Harrison should be sentenced at a level commensurate with career offender status, then the appropriate sentencing range is readily obtained. Section 4B1.1 specifies that for the crime of which Harrison was convicted (providing for a maximum statutory sentence of 40 years), he should be sentenced at an offense level of 34 with a criminal history category of VI. With a three-level reduction for acceptance of responsibility, the sentencing range would be 188-235 months imprisonment. The district court sentenced Harrison to 235 months, at the top of the specified range.
Accordingly, I would affirm the judgment of the district court and I respectfully dissent.