he is sentenced. See 18 U.S.C. § 3553(f)(1), (2). Mr. Hernandez has nine criminal history points, see PSI ¶ 35, and pled guilty to violations of two firearm possession offenses, and therefore the relief afforded by section 3553(f) is not available to him. B. Criminal History Mr. Hernandez argues that the court should depart from the applicable sentencing range because his criminal history category overstates the seriousness of his past criminal conduct. See U.S.S.G. § 4A1.3 (policy statement) (authorizing departure when a defendant’s criminal history category “significantly over-represents the seriousness of a defendant’s criminal history category or the likelihood that the defendant will commit further crimes”); see also United States v. Shoupe, 988 F.2d 440, 446-47 (3d Cir.1993) (<HOLDING>). Specifically, Mr. Hernandez contends that the
holding that a court may depart downward from the applicable guideline range under section 4a13 holding that district court must provide reasonable notice of intent to upwardly depart from guideline range holding that where the guideline range is higher than the statutory maximum sentence the court should depart from the lowest range that could support the statutory maximum holding that conduct contained in dismissed counts may be considered by a district court in determining whether to depart from the applicable guideline range holding that consideration by a sentencing court of acquitted conduct was appropriate in establishing the applicable guideline range or in determining the sentence to impose within the guideline range