                  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
