concurring.
I concur in Judge Benton’s opinion for the court, which I believe comports with our court’s governing precedent concerning waiver. Even were Harrison’s claim subject to review for plain error, however, I do not believe the district court’s imposition of sentence “seriously ,affect[ed] the fairness, integrity or public reputation of judicial proceedings,” as required before a court of appeals should exercise its discretion to correct a plain error. United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation and citation omitted). See also United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (holding that discretion to correct plain error should be employed “solely in those circumstances in which a miscarriage of justice would otherwise result.”) (internal quotation and citation omitted).
On review of the governing law and the record in this case, I respectfully disagree with the dissent’s assertion that Harrison “will serve roughly five to ten additional years than he would have served under the prior sentencing scheme.” Post at 16. Harrison had no entitlement to a downward departure of any degree, and despite some preliminary discussion concerning the degree to which the court was authorized to depart from the guideline range under appropriate circumstances, the record ultimately does not establish that the district court thought the sentence imposed was inappropriate. The district court recognized that the Ex Post Facto Clause applied to changes in the sentencing guidelines, (S. Tr. 22-23), and the court of course had authority to consider a downward departure greater than either party sought. See Burns v. United States, 501 U.S. 129, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991).3 The court explained to Harri*809son that it had departed downward from the applicable sentencing guideline range, but that it “also had to consider the need to punish you and deter you from any other criminal conduct.” (S. Tr. 29). The court concluded: “So it’s my belief that this 168 months, being the low end of the sentencing guideline, is appropriate in your case.” (Id).
Whatever the district court believed, I conclude that the absence of a greater reduction in sentence did not seriously affect the fairness, integrity or public reputation of judicial proceedings. It is questionable whether Harrison deserved a downward departure at all, given his record of nine prior drug convictions based on at least six separate incidents between 1989 and 1991 when he was 29 to 31 years old, (PSR ¶¶ 34-39)4, a violation of probation adjudicated in 1992, (PSR ¶¶ 34-37), a shoplifting conviction in 2001, (PSR ¶ 40), and his instant conviction at age 44 for possession with intent to distribute 1.49 kilograms of cocaine. (PSR ¶ 21). Cf. United States v. Hutman, 339 F.3d 773, 776 (8th Cir.2003) (concluding after a survey of precedent that “a downward departure from career offender status may be appropriate for a relatively young defendant with a brief criminal career”). But accepting that the parties agreed to a downward departure, I think a departure of more than one criminal history category would have been “unreasonable” under the circumstances of this case. See 18 U.S.C. § 3742(e)(3). Accordingly, even were the matter before us on plain error review, I do not believe appellant has demonstrated that the district court’s decision to limit the reduction to 20 months, thus resulting in a term of imprisonment of 168 months for this career offender, constituted a miscarriage of justice warranting relief under Federal Rule of Criminal Procedure 52(b).
. Although the sentencing transcript shows that the government agreed to Harrison’s request for a departure of one criminal history category, we do not know from this record whether the parties specifically had negotiated a one-category departure, such that an effort by Harrison to gain a greater departure might have jeopardized the government's agreement to any departure at all.
. The presentence report reflects that four convictions were for sale of cocaine and five convictions were for possession of cocaine. Based on the sentences associated with each conviction, it appears that all of the offenses were punishable by a term of imprisonment exceeding one year.