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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________
No. 91-8381
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES EDWARD CARPENTER
Defendant-Appellant.
______________
Appeal from the United States District Court
for the Western District of Texas
______________
(June 9, 1992)
Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges
GOLDBERG, Circuit Judge:
On appeal from a conviction for possession of a firearm by a
convicted felon, Carpenter contends: [1] that the district court
erred by denying his motion to suppress statements made after
counsel was appointed for him in an unrelated state court case; [2]
that the district court should have excluded all references to a
"crack pipe" discovered next to the firearm in question; and [3]
that the district court erred in making an upward departure of his
sentence. We affirm.

2
I. THE CONFESSION
Arrested on an outstanding warrant for a burglary charge,
Carpenter was placed in the back seat of a police cruiser and
transported to the county jail. Later that day, an officer
discovered a firearm and crack pipe on the back seat floorboard of
the police cruiser and notified a supervisor. Carpenter, the only
arrestee transported in the police cruiser on that day, was the
prime suspect.
Two officers approached Carpenter in the jail to inquire about
the firearm. According to Carpenter, the officers promised him
that if he provided information about the firearm, they would try
to get the burglary charges dropped. The officers testified that
they never made such a promise.1
Three days later, counsel was appointed for Carpenter in
connection with the state burglary case, but the authorities did
not notify his lawyer of the appointment for several days. In any
event, Carpenter's appointed attorney did not speak with him until
weeks later. In the interim, Carpenter was visited twice by Claire
Redman, an agent with the Bureau of Alcohol Firearms and Tobacco.
Agent Redman had received a report from the police department which
indicated that Carpenter qualified as an armed career criminal.
1 The officers did not advise Carpenter of his Miranda
rights prior to questioning him. However, none of the statements
made by Carpenter during that interrogation were used against
him.

3
During her first visit with Carpenter, Agent Redman identified
herself as a federal agent and informed Carpenter that she was
there to speak with him about the firearm discovered in the police
cruiser. Agent Redman advised Carpenter of his Miranda rights and
obtained a signed waiver of his rights. Carpenter then confessed
that the gun and crack pipe belonged to him. He explained that
while he was handcuffed in the back seat of the police cruiser, he
maneuvered his cuffed hands around his waist to remove the gun and
pipe, and then kicked them under the front seat of vehicle.
Four days later, Agent Redman visited Carpenter a second time.
She had reduced Carpenter's verbal statement to writing and asked
him to make any corrections and sign it. He refused, claiming that
he had fabricated the confession because the police officers had
promised to get the burglary charges dropped if he confessed to
possessing the firearm. He confirmed that the written statement
prepared by Agent Redman accurately reflected what he had told her
four days earlier, but declined to sign it because it simply was
not true.
Carpenter was eventually charged in federal court with
possession of a firearm by a convicted felon. He moved the
district court to suppress the confession on the ground that the
appointment of counsel in the state burglary case precluded Agent
Redman from interrogating him about the firearm. The district
court denied the motion.

4
A.
The question presented in this appeal is whether the
appointment of counsel under the Sixth Amendment in connection with
the charged burglary offense constituted an invocation by Carpenter
of his Fifth Amendment right to have counsel present during the
custodial interrogation about the firearm. Guided by the Supreme
Court's decision in McNeil v. Wisconsin, 111 S.Ct. 2204 (1991),
and this circuit's decision in United States v. Cooper, 949 F.2d
737 (5th Cir. 1991), we answer that question in the negative.
In McNeil the Supreme Court held that the invocation of the
Sixth Amendment right to counsel, which attaches only "after the
initiation of adversary judicial criminal proceedings," does not
amount to a per se invocation of the Fifth Amendment right to have
counsel present during custodial interrogations about uncharged
offenses. McNeil, 111 S.Ct. at 2207-08 (quoting Kirby v. Illinois,
406 U.S. 682, 689 (1972)). The Court reasoned that the Sixth
Amendment only applies to the specific offense with which the
suspect has been charged. Once the Sixth Amendment right to
counsel attaches, it prohibits law enforcement officers from
initiating interviews in connection with the charged offense.
Michigan v. Jackson, 106 S.Ct. 1404, 1408-09 (1986). With respect
to an uncharged offense, however, the Sixth Amendment right has not
yet attached, for the Sixth Amendment is not triggered until formal
adversarial proceedings have begun. Thus, the Sixth Amendment bar
to interrogations about the charged offense cannot extend to

5
interrogations about uncharged offenses. Law enforcement officers
can interrogate a suspect about an uncharged offense without
offending the Sixth Amendment.2 Id.
Unlike the Sixth Amendment right to counsel, which applies
only to the charged offense, the Fifth Amendment right to the
assistance of counsel during custodial interrogations is not
offense-specific. Once a suspect indicates that he wants the
assistance of counsel during a custodial interrogation -- a
constitutional right guaranteed to him by the Fifth (not Sixth)
Amendment, Miranda v. Arizona, 384 U.S. 436 (1966) -- law
enforcement officers may not approach the suspect to interrogate
him about the subject offense, Edwards v. Arizona, 101 S.Ct. 1880,
1884-85 (1981), or any other offense. Arizona v. Roberson, 108
S.Ct. 2093, 2098-99 (1988). The Fifth Amendment shields the
suspect from interrogation about any offense, charged or uncharged.
Id. But a suspect must expressly invoke the Fifth Amendment
shield. This the suspect can do by communicating his preference
not to be interrogated without first receiving the assistance of
counsel. Simply invoking the Sixth Amendment right to counsel with
respect to a charged offense, however, does not constitute an
exercise of a suspect's Fifth Amendment right to be represented by
counsel during custodial interrogations about uncharged offenses.
McNeil, 111 S.Ct. at 2207-08.
2 We elaborate later on the prohibition of interrogations
about uncharged, but extremely closely related offenses. See
infra at 7-9.

6
In United States v. Cooper, 949 F.2d 737 (5th Cir. 1991), this
court's first application of McNeil, we held that a "request for
appointed counsel in state court was not sufficient to invoke [the]
Fifth Amendment right to counsel" "in unrelated future custodial
interrogations." Id. at 742. In Cooper police arrested the
defendant for aggravated robbery and found a sawed off shot-gun in
the trunk of his car. An attorney was appointed to represent the
defendant in the aggravated robbery case. Six days later, a
federal agent interrogated him about the firearm after
administering the Miranda warnings. This court concluded that the
federal agent did not violate the defendant's Fifth Amendment
rights by interrogating him about the federal firearm offense even
though counsel had been appointed in the state aggravated robbery
case.
In the case at bar, as in Cooper,
although [Carpenter] accepted representation in state
court on the specific charge of [burglary], he did not
request that counsel represent him in unrelated future
custodial interrogations. He did not even make a
statement that can be reasonably construed as a desire
for such representation. Neither did [he] request the
presence of counsel when the federal agent advised him of
his constitutional rights before commencing the custodial
interrogation.
Cooper, 949 F.2d at 742. Having never invoked his Fifth Amendment
right to have the assistance of counsel during custodial
interrogations,3 Carpenter's contention that the confession was
3 Nor did Carpenter's counsel demand that Carpenter not be
interrogated in counsel's absence. Arguably, if counsel had done
so, that might, depending on the circumstances, constitute an

7
extracted in contravention of the Fifth Amendment must fail.
B.
McNeil and Cooper leave open one avenue for challenging the
admissibility of a confession when a defendant has invoked his
Sixth Amendment right to counsel with respect to a charged offense
but has not expressly invoked his Fifth Amendment right to have
counsel present during custodial interrogations. If the charged
and uncharged offenses are "so inextricably intertwined" or
"extremely closely related," then the Sixth Amendment (not the
Fifth Amendment) prohibits interrogation about the uncharged
offense. See Cooper, 949 F.2d at 743 ("Recently, a number of
courts have interpreted the Supreme Court's language and
disposition in [Maine v.] Moulton[, 474 U.S. 159 (1985)] to mean
that the Sixth Amendment prohibits use of incriminating statements
invocation of Carpenter's Fifth Amendment right to the assistance
of counsel during custodial interrogations about any subject
matter. Compare McNeil, 111 S.Ct. at 2212 (Stevens, J.,
dissenting) (observing that a suspect or his lawyer can invoke
the Fifth Amendment right to have the assistance of counsel
during custodial interrogations by expressing that wish when
invoking the Sixth Amendment right to counsel at a preliminary
hearing: "If petitioner in this case had made such a statement
... the entire offense-specific house of cards that the Court has
erected today would collapse, pursuant to our holding in Arizona
v. Roberson ....") with id. at 2211 (majority opinion) ("We have
in fact never held that a person can invoke his Miranda rights
anticipatorily, in a context other than `custodial interrogation'
-- which a preliminary hearing will not always, or even usually,
involve ....") and United States v. Wright, ___ F.2d ___, 1992 WL
82026 at *2 (9th Cir. Apr. 27, 1992) ("[T]he request by [the
defendant's] counsel at a plea hearing to be present at
interviews with her client did not trigger the Miranda-Edwards
rule for subsequent custodial interrogations regarding unrelated
criminal activity."). We need not, and therefore do not, decide
that question today.

8
about uncharged crimes that are extremely closely related to the
charge crime."). Support for this rule is derived from the Supreme
Court's decision in Moulton, vacating "all of defendant Moulton's
convictions -- burglary and theft -- even though at the time of the
surreptitious recording, formal charges on the burglary offense had
not been commenced." Id. at 743 n.18 (quoting People v. Clankie,
530 N.E.2d 448, 451 (Ill. 1988)). When the offenses are so closely
related, the protections afforded by the Sixth Amendment, see
Michigan v. Jackson, supra, will extend even to those offenses with
respect to which the government has not yet initiated formal
charges. Cooper, 949 F.2d at 743; see also People v. Crane, 585
N.E.2d 99 (Ill. 1991).
Contrary to Carpenter's suggestion, however, we do not find
the firearm offense and the state burglary offense to be
"inextricably intertwined" or "extremely closely related." The
state burglary charge predated the federal firearm charge; a
warrant was issued for his arrest on the burglary charge before the
events leading up to the firearm charge. In fact, the only
connection between the two crimes is that Carpenter possessed the
firearm when he was arrested on the warrant for the burglary
charge. To be sure, Carpenter does not even argue that the firearm
was in any way linked to the burglary. Accordingly, we hold that
Agent Redman did not infringe upon Carpenter's Fifth or Sixth
Amendment rights when she interrogated Carpenter about the firearm.
The district court correctly denied the motion to suppress.

9
II. THE CRACK PIPE
When the officers discovered the firearm on the back seat
floorboard, they found a crack pipe beside it. The pipe had
recently been used to smoke crack, and there was fresh residue on
it. Carpenter moved to exclude the pipe or any reference to it.
The district court granted the motion in part and denied it in
part. The district court excluded the pipe itself, concluding that
the prejudicial effect of its admission -- in light of the fact
that it had residue on it, had been recently used to smoke crack,
and came from Carpenter's pocket -- outweighed its value to the
government. However, the court allowed the government witnesses to
testify that they discovered the pipe and that Carpenter confessed
to having placed it on the back seat floorboard. The district
court also admitted into evidence a photograph of the back seat
floorboard of the police cruiser depicting the pipe along side of
the firearm.
Carpenter attacks the district court's ruling in two ways.
First, he argues that the prejudicial impact of that evidence
substantially outweighed its probative value, and second, that the
evidence constituted extrinsic evidence which should have been
excluded under Rule 404(b) of the Federal Rules of Evidence.
In support of affirmance, the government contends that the crack
pipe was intrinsic evidence, so intertwined with the possession and
recovery of the firearm as to be part of a single criminal episode,
and that evidence concerning the crack pipe was admissible to

10
corroborate the confession that Carpenter later recanted.
A.
The district court wisely decided to exclude the actual pipe,
recognizing that its prejudicial effect outweighed its probative
value. The pipe had no evidentiary value other than to corroborate
Carpenter's later recanted confession. Yet admitting the actual
pipe into evidence would have created the substantial risk that the
jury would have inferred that Carpenter had smoked crack cocaine on
the day of his arrest, a fact clearly not relevant to the firearm
offense with which Carpenter was charged. Indeed, the government
appreciated the risk that the evidence would be considered by the
jury as a reflection of Carpenter's bad character. It advised the
court that it had no intention to offer the pipe into evidence "for
any purpose to show that [Carpenter] smoked "crack" cocaine or
anything, but that this item is a corroborative tool that
corroborates the statement that he made about the firearm."
We agree with the government that evidence that a crack pipe
was discovered along side of the firearm on the back seat
floorboard was relevant insofar as it corroborated Carpenter's
recanted confession. Cf. United States v. Blake, 941 F.2d 334, 338
(5th Cir. 1991) (because the defendant disavowed his confession,
extrinsic evidence of unrelated drug activity to which the
defendant allegedly confessed as part of his confession to the
charged crime was admissible on rebuttal to corroborate officers'

11
testimony about the confession). The government was entitled to
show the jury that the physical evidence substantiated Carpenter's
confession to Agent Redman. In that way, the government could
establish that Carpenter had not fabricated the confession, as
Carpenter later claimed he had done. Thus, although the court
properly excluded the pipe itself, it did not err by admitting the
testimony about, and a photograph of, the crack pipe. In
comparison with the actual pipe, the testimony and photograph were
substantially less prejudicial, yet highly probative.
B.
Evidence that the crack pipe was discovered beside the firearm
was plainly intrinsic, not extrinsic, evidence, because Carpenter's
possession of it was "inextricably intertwined" with his possession
of the firearm; both were part of the "single criminal episode"
involving his arrest. See United States v. Torres, 685 F.2d 921,
924 (5th Cir. 1982) (holding that evidence of sample drug
transactions which were "necessary preliminaries" for the charged
transaction was relevant intrinsic evidence and therefore
admissible). Intrinsic evidence of this kind is not excludable
under Rule 404(b). Id.; United States v. Williams, 900 F.2d 823,
825 (5th Cir. 1990). Thus, the district court committed no error
in denying Carpenter's motion to exclude the crack pipe on that
basis.
III. SENTENCING

12
A separate sentencing enhancement information was filed with
the court, pre-trial, alleging that Carpenter was an "armed career
criminal" within the meaning of 18 U.S.C. � 924(e)(1). His
guideline range for the offense was 33-41 months taking into
account his criminal history (category 5), but as an armed career
criminal, Carpenter was subject to a mandatory minimum sentence of
180 months.
The government moved the court for an upward departure on the
ground that Carpenter's criminal history score under the guidelines
did not adequately depict the severity of Carpenter's criminal
past. Although Carpenter objected generally to an upward
departure, Carpenter did not lodge any objections to the matters
presented in the Presentence Investigation Report or otherwise
contest the accuracy of its contents. Carpenter did argue that the
government had failed to prove, by a preponderance of the evidence,
that he had committed the burglary offense for which he was
arrested and which led to the firearm charge.
In imposing sentence, the district court concluded that an
upward adjustment from the mandatory minimum 180 months was
appropriate in light of Carpenter's extensive criminal history:
The Guideline range in this case, in the Court's view,
because of the statute, is 180 months to 180 months, in
effect. It would be the Court's determination that the
Defendant's criminal history is not adequately reflected
and that a -- an upward departure would be appropriate.
To depart across the chart in the criminal history
category does not really seem applicable, since the
criminal history category doesn't extend. So the Court

13
would determine that the 180-month range under a Category
5 would be a Level 30. A departure would be appropriate
upwards two levels to a 32, where the range would then be
188 to 235 months.
R. 6 at 16. The district court imposed a sentence of 230 months
incarceration.
A.
Carpenter first challenges the upward departure on the ground
that the district court erred in enhancing his sentence based on
the alleged burglary offense for which he was arrested. He argues
that the government failed to prove, by a preponderance of the
evidence, that he committed that offense.4 We have reviewed the
sentencing transcript and find no merit in that claim.
B.
Carpenter submits that the upward departure was "cruel and
unusual" because it resulted in a double penalty for the same
conduct. He observes that his sentence was already enhanced under
the armed career criminal statute, which imposes a mandatory
4 The burglary charge was dismissed by the state because of
insufficient evidence. That fact is of no moment for sentencing
purposes, however; see United States v. Lee, 955 F.2d 14 (5th
Cir. 1992) (approving upward departure based on history of
similar offenses not prosecuted to conviction); the standard of
proof necessary to support an enhancement in this circuit --
preponderance of the evidence -- is not nearly as demanding as
the "beyond a reasonable doubt" standard necessary to support a
conviction. See generally Kinder v. United States, ___ U.S. ___,
60 U.S.L.W. 3796-97 (May 26, 1992) (White, J., dissenting from
the denial of certiorari) (urging Court to resolve the conflict
in the circuits on the standard of proof necessary to support
factual findings at sentencing).

14
minimum 180 month sentence on a defendant who, with three prior
convictions, is convicted of carrying a firearm. In Carpenter's
view, the district court was penalizing him twice based on the
seriousness of his criminal history: once by enhancing his
guideline sentence to 180 months pursuant to � 924(e), and a second
time by departing upward from 180 to 230 months.
Carpenter's argument is foreclosed by this circuit's decision
in United States v. Fields, 923 F.2d 358, 362 (5th Cir. 1990). In
Fields we held that an upward departure of a sentence already
enhanced under 18 U.S.C. � 924(e)(1) was permissible. Like this
case, the applicable guideline range in Fields was 33-41 months,
and the defendant was subject to the sentence enhancement under 18
U.S.C. � 924(e), requiring the imposition of a mandatory minimum
180 months. The district court in Fields departed upwards based on
the defendant's criminal history and imposed a sentence of 204
months. This court affirmed, writing:
The guidelines themselves acknowledge that a departure is
in order when a defendant's criminal history score "does
not adequately reflect the seriousness of the defendant's
past criminal conduct or the likelihood that the
defendant will commit other crimes."
Id. (quoting U.S.S.G. � 4A1.3). We observed that � 924(e)
authorizes a mandatory minimum sentence of 180 months, but allows
a maximum sentence of life in prison. Thus, a district court has
the discretion to impose a sentence in excess of 180 months when
the circumstances warrant it.

15
Carpenter's reliance on United States v. Munoz-Romo, 947 F.2d
170 (5th Cir. 1991) is misplaced. That case merely holds that a
district court cannot impose separate sentences for violations of
18 U.S.C. � 922(g) [possession of a firearm by a convicted felon]
and 18 U.S.C. � 924(e) [mandatory minimum 15 year sentence for
persons convicted under 922(g) who also have three prior felony
convictions]. We explained that � 924(e) is an enhancement
statute, and "an enhanced sentence is designed to be used instead
of the regular, or shorter, sentence." Id. at 181. Here the
district court imposed a single sentence in conformity with the
mandatory minimum.
C.
"Since [Carpenter's] maximum sentence in the guideline range
was 41 months, and the minimum sentence called for by � 924(e)(1)
is fifteen years (180 months), 180 months became [Carpenter's]
guideline sentence." Fields, 923 F.2d at 361. In his third
argument attacking the sentence, Carpenter contends that the
district court did not adequately articulate its reasons justifying
a 230 month sentence, an upward departure of 50 months from the 180
month guideline sentence. Carpenter finds support for his argument
in a line of Fifth Circuit cases demanding that when a district
court departs from the guideline sentence based on the defendant's
criminal history, it explicitly articulate the aggravating factors
justifying the upward departure. E.g., United States v. Martinez-
Perez, 916 F.2d 1020, 1024 (5th Cir. 1990) (district court erred in

16
making upward departure because it did not articulate why the
defendant's criminal history score did not adequately reflect the
defendant's criminal past); United States v. Jones, 905 F.2d 867,
870 (5th Cir. 1990) ("A recital of past convictions followed by the
statement that the Guidelines do not adequately reflect this
history or deter recidivism, as here, amounts to little more than
an expression of personal disagreement with the Guidelines.");
United States v. Lopez, 871 F.2d 513, 515 (5th Cir. 1989) (vacating
sentence and remanding so that district court could articulate
basis for upward departure). But see United States v. Harvey, 897
F.2d 1300, 1306 (5th Cir. 1990) (upholding upward departure in the
face of defendant's argument that district court failed to
expressly articulate why the criminal history category did not
adequately reflect defendant's criminal past).
A district court has the discretion to impose a sentence in
excess of the recommended guideline range provided: (1) that the
court articulates acceptable reasons justifying the upward
departure, and (2) that the departure is reasonable. Fields, 923
F.2d at 361 (citing 18 U.S.C. � 3742(e)(3), (f)(2)). One
acceptable reason for a departure is that the "Criminal History
Category" into which the defendant falls does not "adequately
reflect the seriousness of the defendant's past criminal
conduct...." U.S.S.G. � 4A1.3. By way of example, this might
happen when a defendant's prior convictions are stale (i.e., beyond
the limitations period), when a defendant's prior sentences have

17
been consolidated, when the defendant has been afforded extreme
leniency by a sentencing court, or when the defendant has committed
offenses while on bail, parole or probation.5 Jones, 905 F.2d at
869.
At Carpenter's sentencing, the government argued that an
upward departure was warranted on this basis. Relying on the
Presentence Investigation Report, the government explained that two
convictions, a juvenile adjudication for burglary and a misdemeanor
conviction for theft, were not counted against Carpenter because
they were outside the limitations period. The theft conviction was
a violent purse snatching which would have qualified as a felony
but was instead filed as a misdemeanor. Carpenter pled guilty to
the offense and received a probationary sentence, but because of
subsequent misconduct, his probation was revoked. That saved him
from other criminal charges: A purse snatching (theft) charge and
a drug possession charge were dropped by the state once Carpenter's
probation was revoked. The guidelines also did not account for
Carpenter's burglary offense which, as we have indicated in Part
III.A. of this opinion, the government proved by a preponderance of
the evidence. Finally, the government pointed out that Carpenter
had been charged with murder and pled guilty to the lesser offense
of voluntary manslaughter, receiving an 18 year sentence of which
he served six before being paroled.
5 We make no effort to catalog all of the potential bases
for concluding that a defendant's criminal history score is
inadequate.

18
From the context of the court's sentencing decision, it is
abundantly clear that the district court agreed with the government
that an upward departure was warranted based on Carpenter's
criminal history. Critically, Carpenter's criminal history was the
only matter considered by the court at sentencing, and Carpenter
did not contest the government's position. True, the district
court did not expressly adopt the government's arguments. See
United States v. Lange, 91-8147, slip op. at 6-7 (5th Cir. Dec. 4,
1991) (unpublished disposition). But there is no room for doubt
that the court based its decision to depart on the grounds urged by
the government. This is not a case like Jones in which we could
not decipher why the district court concluded that "aspects of the
defendant's criminal history [were] not adequately considered by
the Guidelines." 905 F.2d at 870. Nor is this a case like
Martinez-Perez in which we were dissatisfied with the following
explanation by a district court: "The Court has departed a few
months from the guidelines because the guidelines do not take into
consideration appropriately your criminal involvement, particularly
matters involving the same type of offense." 916 F.2d at 1024. In
Martinez-Perez
all of [the defendant's] prior convictions of any
significance were considered in calculating his Criminal
History Category. The only prior conviction outside the
limitations periods of � 4A1.1 was a petty shoplifting
conviction in 1976. While we have previously stated that
offenses outside the limitations period may be considered
in the district court's decision to depart from the
Guidelines, [the defendant]'s one long-past misdemeanor
conviction is hardly sufficient justification for
departure.
Id. at 1025. In Carpenter's case, as the government illustrated

19
and the district court agreed, Carpenter's criminal history score
did not adequately portray his criminal past. Two convictions were
unaccounted for because of the limitations period, he had several
more prior convictions than needed to qualify as an armed career
criminal, he had committed offenses while on probation and parole,
and he had received especially lenient treatment for killing a man,
all reasons enough to justify an upward departure. Yet these
aggravating factors were not considered in ascertaining the
applicable Criminal History Category. The district court was
justified, therefore, in relying on these factors to support the
upward departure.6 See Fields, 923 F.2d at 361.
We also believe that the 50 month upward departure was
reasonable. In selecting a 230 month sentence, the district court
first considered, in line with our case law, an adjustment of
Carpenter's Criminal History Category from a category 5 to a
category 6. See Jones, 905 F.2d at 870 (vacating sentence and
remanding so that district court could consider lesser adjustments
of the criminal history category); United States v. Lopez, 871 F.2d
513, 515 (5th Cir. 1989) ("[T]he sentencing judge should state
definitively that he or she has considered lesser adjustments of
the criminal history category and must provide reasons why such
6 We would certainly have preferred that the district court
restate the reasons why Carpenter's criminal history score was
not an accurate portrayal of his criminal past. Ordinarily, we
would vacate and remand. We need not do so in this case,
however, because Carpenter did not contest the government's
arguments and the Presentence Investigation Report's factual
assertions concerning his criminal history.

20
adjustments are inadequate."). But see Harvey, 897 F.2d at 1306
("[T]he Court's holding [in Lopez] was narrow, and was confined to
those cases with `low criminal history scores.'"). Because
Carpenter was subject to the mandatory minimum sentence of 180
months required by 18 U.S.C. � 924(e)(1), however, the district
court recognized that adjusting the Criminal History Category was
not workable: Carpenter's guideline range would have shifted from
a range of 33 to 41 months under Criminal History Category 5 (and
Offense Level 14), to a range of 37 to 46 months under Criminal
History Category 6 (and the same Offense Level 14), still below the
mandatory minimum 180 month sentence that had to be imposed.
Unable to follow the directive of Lopez and Jones, the
district court extrapolated a formula of its own. It turned to the
Guidelines "Sentencing Table," and under category 5, located the
range within which a sentence of 180 months would fall. That
corresponded to an offense level of 30 (which provided for a
guideline range of 151 to 188 months). The court then reasoned
that Carpenter's criminal history warranted a two point upward
adjustment to an offense level of 32, providing for a guideline
sentencing range of 188 to 235 months. The court chose a sentence
of 230 months, comfortably within its newly formulated guideline
range.
We know of no authority sanctioning the district court's
methodology. Likewise, we know of no authority condemning it.

21
Because guideline sentencing ranges recommended by the Sentencing
Table do not account for the � 924(e) enhancement, the district
court was left to improvise. Although we do not ratify the
methodology employed by the district court, we nevertheless affirm
the sentence because, ultimately, the departure reflected a
reasonable upward adjustment. See United States v. Webb, 950 F.2d
226, 232 (5th Cir. 1991) ("We hold that the amount of the
departure, five years [60 months], was reasonable, particularly in
light of the facts of Webb's past and that his base sentence was
the minimum statutory penalty of fifteen years.") (emphasis in
original); Fields, 923 F.2d at 362 (24 month upward departure from
the mandatory minimum 180 month sentence required by � 924(e) was
reasonable); United States v. Geiger, 891 F.2d 512, 513-14 (5th
Cir. 1989) (upholding a 120 month sentence even though guidelines
recommended a maximum sentence of 27 months), cert. denied, 110
S.Ct. 1825 (1990); accord United States v. Briggman, 931 F.2d 705,
710 (11th Cir.), cert. denied, 112 S.Ct. 370 (1991) (upward
departure of fifteen years from statutory minimum sentence of
fifteen years reasonable based on defendant's past criminal
history). In view of the unique aspects of Carpenter's criminal
history, we find nothing unreasonable about the 50 month upward
departure from the 180 month guideline sentence.7
7 We simply decide the case before us today. Nothing in
this opinion should be read to intimate that a 50 month upward
departure from a 180 month guideline sentence is reasonable per
se.

22
AFFIRMED.