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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 93-7074
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LARRY DALE PENNINGTON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________
(December 8, 1993)
Before VAN GRAAFEILAND*, SMITH, and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Larry Pennington appeals the upward departure from the
Sentencing Guidelines range for his conviction on two counts of
conspiracy to violate federal laws. Although we find that an
upward departure was appropriate, we conclude that the district
court misapplied the guidelines' upward departure methodology, so
we remand for resentencing.
* Circuit Judge for the Second Circuit, sitting by designation.

I.
On January 25, 1992, Pennington and others broke into a
trucking depot in Batesville, Mississippi, and stole a 1989
Freightliner truck and Lufkin trailer containing approximately
$19,000 worth of furniture, which was to be transported to Destin,
Florida. Pennington helped to destroy the truck and to attempt to
sell the property. When arrested, Pennington voluntarily revealed
his involvement in other truck and trailer thefts, leading to the
recovery of eleven rigs.
Pennington was charged on a two-count information of conspir-
acy to violate federal laws by stealing freight from interstate
depots and by receiving stolen interstate motor vehicles and
changing their vehicle identification numbers, in violation of
18 U.S.C. § 371. Pennington pled guilty to both counts and was
sentenced on January 19, 1993.
The presentence investigation report ("PSR") indicated that
Pennington had an offense level of 17 and a criminal history
category of VI, which yielded an imprisonment range of 51 to 63
months. The government filed written motions for an upward
departure under U.S.S.G. § 4A1.3, based upon an inadequate criminal
history and a downward departure under § 5K1.1 based upon substan-
tial assistance.
Pennington objected to the upward departure, but the court
adopted the PSR and departed from the guidelines range because of
Pennington's criminal history and the large amount of money
involved in the thefts. Pennington was sentenced to 84 months'
2

imprisonment (42 months on each count to run consecutively) and
three years' supervised release.
II.
Pennington challenges his sentence on two grounds. First, he
asserts that the upward departure was calculated based upon a
faulty extrapolation of the criminal history category instead of
using a higher base offense level. Second, he contends that the
downward departure reflected only his substantial assistance with
authorities but not his acceptance of responsibility.
We review a departure under a two-prong test: "A departure
from the guideline will be affirmed if the district court offers
`acceptable reasons' for the departure and the departure is
`reasonable.'" United States v. Velasquez-Mercado, 872 F.2d 632,
635 (5th Cir.), cert. denied, 493 U.S. 866 (1989). The reasons
articulated by the district court are findings of fact that we
review for clear error. United States v. Murillo, 902 F.2d 1169,
1173 (5th Cir. 1990).
A.
The motion for upward departure set forth an extrapolated
criminal history table. As Pennington received 26 points for his
criminal history and category VI is assigned to those with 13
points or higher, the government created "suggested" categories
VII-X, extrapolated from the ranges for criminal history levels
I-VI. The imaginary category X had a range of 99-111 months.
3

Pennington asserts three flaws in his sentence. First, he
challenges the court's assessment of his prior history points
without considering the non-violent nature of his prior theft-
related crimes. Second, he argues that instead of the extrapola-
tion of criminal history categories, § 4A1.3 provides for a
departure by moving incrementally down the sentencing table to the
next highest offense level until the court finds an appropriate
guideline range. Third, Pennington contends that the suggested
extrapolation is excessive, providing for twelve-month increases
per category increase, even though the actual table increases the
ranges by only 3, 3, 7, 9, and 5 months as the categories increase.
The district court's conclusion that Pennington's criminal
history category was inadequate was not clearly erroneous.
Pennington had a long history of crime that, although non-violent,
demonstrated a disrespect for the law not adequately reflected by
a category VI criminal history. Furthermore, several prior
convictions were not included in his criminal history category
calculation; these convictions alone justified a departure.
As for the method of departure, a November 1, 1992, amendment
to § 4A1.3 clarified the recommended approach to determine an
upward departure. This court recently considered this issue in
United States v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en
banc), in which we determined that "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."
4

Although we agree that the reasons stated by the district
court warranted an upward departure, the method of departure was
inappropriate, and the government acknowledges that the district
court did not follow the methodology mandated by Lambert. The
Sentencing Commission expressed its intent that courts reach
"systematic, uniform sentences even in cases where a departure is
appropriate." Id. Accordingly, we must remand for resentencing in
order to maintain the consistency of district courts' application
of the guidelines.
B.
Pennington argues that the downward departure reflected his
cooperation with government authorities but not his acceptance of
responsibility. He contends that he is entitled to a further
three-level decrease in his base level offense for his acceptance
of responsibility.
It appears that the sentencing court did consider both
Pennington's assistance and his acceptance of responsibility.
Although the court need not automatically grant a downward
departure merely because the government moves for it, see United
States v. Damer, 910 F.2d 1239, 1241 (5th Cir.), cert. denied, 498
U.S. 991 (1990), the court sentenced Pennington to 84 months, a
downward departure from the imaginary 99-111-month range. And
although the net effect of the upward and downward departures was
a net increase, we find this result acceptable in those rare cases
in which a court departs in both directions. See, e.g., United
5

States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990).
Pennington was not entitled to a downward departure as a matter of
right, and a net increase cannot be characterized as a misapplica-
tion of the guidelines where both upward and downward departures
are granted.
C.
In his addendum to his notice of appeal, Pennington raises
additional grounds of error. We find no error in the amount of his
fine and restitution. Furthermore, the district court has
discretion to impose the sentences consecutively, as opposed to
concurrently.
III.
We find the district court's reasons for departure not clearly
erroneous. Nevertheless, because we find a misapplication of the
method of calculating an upward departure under the guidelines, we
VACATE Pennington's sentence and REMAND for resentencing consistent
with our recent decision in Lambert.
6