§470 Multiple Counts
(U.S.S.G. §3D)
6th Circuit affirms refusal to group witness tampering counts arising from separate incidents. (470) Defendant was convicted of eight counts of witness tampering, among other offenses. At sentencing, the district court declined to group the eight witness tampering convictions. On appeal, the Sixth Circuit affirmed, holding held that the each conviction was based on separate incidents where defendant tried to influence testimony. The district court properly refused to group them under § 3D1.2(a). U.S. v. Johnson, __ F.4th __ (6th Cir. Jan. 31, 2022) No. 19-2488.
10th Circuit reverses because murder-for-hire counts should have been grouped. (470) Defendant was convicted of two counts of murder-for-hire for attempting to kill the same victim. The district court refused to group the two counts under § 3D1.2, which resulted in a higher offense level for engaging in two separate plots to kill the victim. The Tenth Circuit reversed, holding that the two counts should have grouped because the requirements of § 3D1.2 were met. The court found that the two offenses had a “common criminal objective.” U.S. v. Maldonado-Passage, __ F.3d __ (10th Cir. July 14, 2021) No. 20-6010.
6th Circuit affirms grouping each sex trafficking count separately. (470) Defendant was convicted of three counts of sex trafficking a minor for transporting a minor from one state to another for purposes of sex over five days. Under § 3D1.2, counts involving substantially the same harm are grouped together, but the commentary to that guideline states that counts arising out of raping a person on different days are not grouped together. The Sixth Circuit found that although defendant’s actions had not occurred over an extended period of time, the three counts of sex trafficking a minor involved separate instances of harm. For that reason, the district court did not err in declining to group the three counts of sex trafficking. U.S. v. Davis, __ F.3d __ (6th Cir. May 22, 2019) No. 18-3031.
5th Circuit reverses for failure to properly “group” kidnapping and drugs. (470) Defendant pleaded guilty to kidnapping and drug trafficking. The district court found that his guideline range for the kidnapping was 262 to 327 months and his guideline range for the drug trafficking offense was 188 to 235 months. The district court failed, however, to apply the grouping rules in § 3D. It sentenced defendant to 420 months. The Fifth Circuit applied the grouping rules and found that the kidnapping and drug trafficking offenses did not “involve substantially the same harm” under § 3D1.2 and therefore should not be grouped. The court also found that because the drug trafficking counts carried an offense level more than nine levels below the kidnapping offenses, they should not be counted under § 3D1.4(a) & (c). Because the kidnapping counts had the highest offense level and defendant was a career offender, he had a sentencing range of 262 to 327 months. The court remanded to allow the district court to impose sentence under the properly calculated guideline range. U.S. v. Douglas, __ (5th Cir. Dec. 12, 2018) No. 17-30884.
8th Circuit upholds grouping immigration counts together. (470) In 1998, defendant, a citizen of Rwanda, told a number of lies to U.S. officials in order to obtain refugee status in the United States, including that he was the brother of a prominent moderate Hutu politician, Twagiramungu. Years later defendant became a citizen of the U.S. In 2014, after receiving a tip from prosecutors in Rwanda, investigators interviewed defendant, where he recanted many things, and denied telling U.S. officials he was related to Twagiramungu. Defendant was convicted of three counts related to his unlawful procurement of naturalization, and one count of falsely stating to investigators that he never claimed he was related to Twagiramungu. The Eighth Circuit held that that the district court properly grouped the counts for sentencing purposes, even though the charges captured conduct ranging from 1998 to 2014. The conduct affected the same “victim,” i.e., the U.S. government. The lie defendant told in 2014 “was simply another act in the same play—one that continued to ‘corrupt[] the established processes of immigration.’” U.S. v. Ngombwa, __ F.3d __ (8th Cir. June 22, 2018) No. 17-1688.
7th Circuit upholds refusal to “group” drug and felon in possession convictions. (470) Defendant pleaded guilty to three counts: (1) possessing cocaine with intent to distribute, 21 U.S.C. § 841(a)(1); (2) possessing a firearm in furtherance of that crime, 18 U.S.C. § 924(c)(1)(A); and (3) possessing a firearm as a felon, § 922(g)(1). Following U.S. v. Sinclair, 770 F.3d 1148 (7th Cir. 2014), the judge did not group defendant’s first and third counts, and the Seventh Circuit affirmed. Sinclair ruled that a drug-trafficking count under § 841(a) and a felon-in-possession count under § 922(g) could not be grouped when accompanied by a § 924(c) offense for using a firearm to further a felony. The reason is that the § 924(c) conviction itself enlarges the sentence based on the defendant’s use of a weapon to further a felony by requiring a 60-month consecutive mandatory minimum sentence. Because the felon-in-possession count has no impact on the guideline range for the drug count, there is no rationale for grouping. The panel declined to overturn Sinclair despite a circuit split, because the Sinclair court knew it was creating the split. U.S. v. Lamon, __ F.3d __ (5th Cir. June 19, 2018) No. 17-2764.
2nd Circuit upholds grouping and “stacking” child porn sentences. (310)(470)(650) Defendant pled guilty to three counts of production of child pornography and two counts of possession of child pornography. The district court imposed a sentence of 240 months for each of the three production counts (to be served consecutively) and 120 months for each of the two possession counts (to be served concurrently with the other sentences) for a total sentence of 60 years. The Second Circuit upheld the district court’s application of the guidelines’ grouping and stacking provisions. The court was required to group Counts 2 and 3 separately because §3D1.2(d) specifically prohibits counts charging production of child pornography to be grouped together. As for the stacking provision of Chapter 5, §5G1.2(d) provides, “[i]f the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively… to the extent necessary to produce a combined sentence equal to the total punishment.” The district court correctly determined that the guidelines range was 110 years based on the stacking maximums for the three production counts, which each carried a statutory maximum of 30 years, and the two possession counts, which each carried a statutory maximum of 10 years. U.S. v. Brown, 843 F.3d 74 (2d Cir. 2016).
11th Circuit does not group separate counts arising from distinct non-forcible sexual conduct with same victim. (470) Defendant pled guilty to three counts of enticement of a minor to engage in sexual activity, under 18 U.S.C. §2422(b). Counts One and Two involved the same minor victim, and defendant argued that the court erred in not grouping these counts together. He acknowledged that convictions for raping the same person on different days are not to be grouped together, but contended that this non-grouping provision did not apply to cases in which the defendant merely enticed a minor to have consensual sex on more than one occasion. The Eleventh Circuit disagreed. The plain language of §3D1.2, in addition to guidance from the commentary, made clear that counts based on harm to the same victim will not be grouped if the offenses occurred on different occasions and involved “multiple, separate instances of fear and risk of harm.” Defendant used Facebook to entice minor C.R. to have sexual relations with him during two distinct periods of time, each of which resulted in a separate instance of oral sex and sexual intercourse, several weeks apart. Each one of these sexual encounters with C.R., who was unable to consent due to her age, caused a separate harm, even though they occurred with the same victim. U.S. v. Nagel, 835 F.3d 1371 (11th Cir. 2016).
7th Circuit requires additional consecutive sentence for failure to appear for sentencing. (460)(470) After being convicted of four tax fraud charges, defendant failed to appear for his sentencing hearing. He later pled guilty to failure to appear, in violation of 18 U.S.C. §3146(a)(1). Guideline §3C1.3 requires a three-level enhancement for violations of 18 U.S.C. §3147. Section 3147, in turn, provides that a defendant convicted of an offense while released shall be subject to an additional punishment of no more than 10 years. Defendant argued that the district court erred by imposing the §3C1.3 enhancement. He contended that 18 U.S.C. §3147 (and guideline §3C1.3, in turn) did not apply to him. The Seventh Circuit upheld the §3C1.3 enhancement, ruling that 18 U.S.C. §3147, through guideline §3C1.3, can enhance a sentence for failure to appear under 18 U.S.C. §3146. Section 3147 provides, without exception, that a defendant “convicted of an offense committed while released under this chapter [Chapter 207] shall” be subject to an additional punishment of no more than 10 years. Failure to appear for sentencing, in violation of 18 U.S.C. §3146, of course, was an “offense”“ under Chapter 207 of Title 18, and it was “committed while released.” Imposing an enhancement under §3147 and U.S.S.G. §3C1.3 was not improper double counting. U.S. v. Marcotte, __ F.3d __ (7th Cir. June 13, 2015) No. 15-1266.
2nd Circuit upholds grouping and stacking child porn production and possession counts. (310)(470)(650) Defendant pled guilty to several counts of production and possession of child pornography. The district court grouped three counts together into Group 1 because they involved “substantially the same harm.” U.S.S.G. §3D1.2(b). The court then grouped two production counts separately into Groups 2 and 3 because §3D1.2(d) specifically prohibits grouping counts charging production of child pornography. The court then determined a combined offense level by using the offense level for Group 1, the group with the highest level, increasing that offense level based on the levels of Groups 2 and 3, and decreasing the offense level based on defendant’s acceptance of responsibility. The Second Circuit found no error, much less plain error. The panel also upheld the court’s use of the stacking provisions in Chapter 5 of the Guidelines Manual. The district court correctly found that the guidelines range was 110 years based on stacking the statutory maximums for the three production counts, which each carried a statutory maximum of 30 years, and the two possession counts, which each carried a statutory maximum of 10 years. U.S. v. Brown, __ F.3d __ (2d Cir. June 14, 2015) No. 13-1706.
10th Circuit applies sophisticated means enhancement for using sham corporation. (470) Defendant was convicted of five counts of attempted tax evasion. The district court applied a two-level sophisticated means enhancement under §2T1.1(b)(2) because she “hid assets or transactions through a fictitious entity or corporate shell.” The Tenth Circuit affirmed. The district court’s finding that Rockledge, the corporation she used, was a “sham corporation” was overwhelmingly supported by the evidence presented at trial. U.S. v. Vernon, __ F.3d __ (10th Cir. Feb. 9, 2016) No. 14-3279.
6th Circuit upholds grouping counts separately that arose from crimes distinct in time and injury to victim. (310)(470) Defendant pled guilty to multiple offenses relating to child pornography and defendant’s sexual relationship with a minor. The Sixth Circuit upheld the district court’s decision not to group four of defendant’s five counts of conviction. The two counts of the same substantive crime – producing child pornography – differed in time, manner, and place. In persuading the minor to send him pornographic photos in January and February 2014 (Count 1), defendant harmed her in a vastly different way than videotaping the minor while the two were together in late February and early March in a rented hotel room (Count 3). The harm inflicted by those two incidents in turn had little to do with defendant’s decision to cross state lines to spend a weekend abusing a child (Count 2) or from his decision, two months later, to pick the minor up after she ran away from home and drive her 5.5 hours away in order to abuse her again (Count 5). The conduct underlying each of these counts amounted to a “separate instance” of harm to the minor, and the district court properly declined to group the counts. U.S. v. Bivens, __ F.3d __ (6th Cir. Jan. 29, 2016) No. 15-3375.
11th Circuit upholds separate grouping of fraud and tax counts. (470) Defendant defrauded his employer, and did not report the income he received from the fraud. He was convicted of multiple counts of mail fraud, wire fraud, and filing a false tax return. The Eleventh Circuit rejected defendant’s argument that the district court should have grouped his tax counts together with his mail and wire fraud counts under either § 3D1.2(c) or (d). Subsection (c) applies where “conduct that represents a separate count … is also a specific offense characteristic in or other adjustment to another count.” Under § 2B1.1, the fraud guideline, defendant’s offense level was not increased because he failed to report his income obtained from the mail and wire fraud. Although § 2T1.1 imposes an enhancement if the unreported income is from criminal activity, defendant’s offense was not determined by § 2T1.1, but by § 2B1.1. As for subsection (d), although both § 2B1.1 and § 2T1.1 are included in the “to be grouped” list, they were not “of the same general type.” Moreover, defendant’s fraud and tax offenses were not “closely related.” The tax crimes involved different victims and distinct offense behavior. U.S. v. Doxie, __ F.3d __ (11th Cir. Jan. 4, 2016) No. 15-11161.
11th Circuit allows consideration of robbery accomplice’s conduct. (170)(224)(470) Defendant was convicted of aiding and abetting an attempted armed robbery, but acquitted of aiding and abetting the use of a firearm in furtherance of a crime of violence. He received a five-level enhancement under §2B3.1(b)(2)(C) because his accomplice Clinton brandished a firearm during the attempted robbery, and a two-level enhancement under §2B3.1(b)(3)(A) because a victim suffered bodily injury. For the first time on appeal, defendant argued that the guidelines barred consideration of Clinton’s brandishing a firearm and causing bodily injury because §3D1.2(d) prohibited the grouping of defendant’s attempted robbery count, and therefore Clinton’s acts were not “relevant conduct” under §1B1.3(a)(2). The Eleventh Circuit held that §1B1.3(a)(1)(B) clearly permitted the district court to consider Clinton’s reasonably foreseeable acts. Section §1B1.3(a)(2) did not apply because robbery offenses are not “grouped” under §3D1.2(d). U.S. v. Maddox, __ F.3d __ (11th Cir. Sept. 30, 2015) No. 14-15064.
7th Circuit holds stipulations were sufficient to support multi-count adjustment. (470)(795) Defendant pled guilty to three bank robberies, and signed a stipulation acknowledging his confession to four uncharged robberies. At sentencing, the district court separately calculated the offense levels for all seven bank robberies, see U.S.S.G. § 1B1.2(c), and then applied a multiple-count adjustment under § 3D1.4. Defendant argued on appeal that the district court erred by including the four uncharged robberies when applying the multiple-count adjustment of § 3D1.4. He denied stipulating that he committed those robberies and argued that, instead, he stipulated only to confessing that he committed those offenses. The Seventh Circuit found no error. Defendant could “not disavow his stipulations by quibbling over semantics.” To establish a factual basis for his guilty pleas, defendant stipulated to the facts underlying the three charged robberies. At the same time, he stipulated that the government could prove beyond a reasonable doubt that he had “admitted [to] robbing” the four other banks and that “the FBI has confirmed that [he] robbed” those other banks. This stipulation was sufficiently specific to establish defendant’s commission of the four uncharged robberies, and thus for the court to include those robberies when applying the multiple-count adjustment. U.S. v. Kieffer, __ F.3d __ (7th Cir. July 27, 2015) No. 14-2652.
7th Circuit remands where court may have engaged in “accidental double counting. “(470) Defendant was convicted of possessing crack, being a felon in possession of a firearm, and using a firearm in furtherance of a drug trafficking crime. His guideline range was 360 months to life and the court imposed a sentence of 420 months. The Seventh Circuit remanded, because the “prison sentence appear[ed] to involve an accidental double counting. “The judge stated that he was sentencing the defendant to 360 months on the drug charge (including a concurrent 180 months on the felon-in-possession charge), and to another 60 months for carrying a gun in furtherance of a drug offense; the total was 420. Although the judge was required to make the 60-month sentence run consecutively to the sentence for the drug offense, 18 U.S.C. §924(c)(1)(D)(ii), he could have sentenced the defendant to only 360 months, the bottom of the guidelines range, by apportioning 60 of those months to the gun-in-furtherance count and the remaining 300 to the drug and felon-in-possession counts. See U.S.S.G. §5G1.2(e). Although the judge never said that he intended to sentence the defendant at the bottom of the guidelines range, it was clear that he did not want to impose a below-guidelines sentence, and he may have believed that he would have been doing so if he had imposed a 360-month sentence. This would have been a mistake, based on a failure to consider the apportionment option. U.S. v. Poke, __ F.3d __ (7th Cir. July 15, 2015) No. 14-2331.
Supreme Court holds that increase of 6 to 21 months shows “prejudice” for ineffective assistance claim. (470) Defendant argued that his attorney was ineffective in failing to argue that the money laundering counts should have been “grouped” for sentencing with the counts for labor racketeering and tax evasion. Absent this ineffective assistance, he argued, his guidelines range would have been 63-78 months. Thus, he claimed his 84-month sentence was an unlawful increase of between six and 21 months. The Seventh Circuit found it unnecessary to decide whether counsel was ineffective, ruling that an increase of 6-21 months was not significant enough to amount to prejudice. In a unanimous opinion written by Justice Kennedy, the Supreme Court reversed, holding that “[a]lthough the amount by which a defendant’s sentence is increased by a particular decision may be a factor to consider in determining whether counsel’s performance in failing to argue the point constitutes ineffective assistance, … it cannot serve as a bar to a showing of prejudice.” The court’s ruling abrogated the Seventh Circuit’s prior decisions in Durrive v. U.S., 4 F.3d 548 (7th Cir. 1993) and Martin v. U.S., 109 F.3d 1177 (7th Cir. 1996), which were based on an incorrect reading of Lockhart v. Fretwell, 506 U.S. 364 (1993). As the court explained last term, Lockhart did not supplant the analysis in Strickland v. Washington, 466 U.S. 668 (1984). The question of whether the counts should have been grouped was left for the lower courts to decide. Glover v. U.S., 531 U.S. 198, 121 S.Ct. 696 (2001).
1st Circuit says sentence above statutory maximum was not plain error because it was concurrent with valid sentence on another count. (470) Defendant received two concurrent sentences of 84 months each for wire fraud and money laundering. The wire fraud sentence was illegal because the maximum sentence was only five years. Nevertheless, the defendant failed to object at sentencing, and the First Circuit held that under plain error review, the sentence did not affect his substantial rights because he received a valid concurrent sentence on the money laundering count. The court noted that the Fourth Circuit reached the same result in U.S. v. Ellis, 326 F.3d 593, 599-600 (4th Cir. 2003). The district court here made it clear at sentencing that the 84-month sentence was being guided not by the applicable statutory maximums, but rather by balancing the 18 U.S.C. §3553(a) factors and the advisory guideline range of 84-105 months. The First Circuit distinguished U.S. v. Klopf, 423 F.3d 1228 (11th Cir. 2005) which held that vacating the sentence for one count disrupts the sentencing package and requires resentencing for all counts. However, the court did reverse defendant’s four year term of supervised release because it exceeded the three year maximum under the money laundering statute. U.S. v. Matos, 611 F3d 31 (1st Cir. 2010).
1st Circuit upholds separate grouping of counts involving theft of different types of pain medications. (470) Defendant, a registered nurse who worked at a hospital, took for her own use pain medications meant for patients who were in pain and were recovering from surgery. In some cases, she substituted a vial of saline solution for a vial of pain medication intended for patients’ pain pumps. In another case, she removed a patient’s Fentanyl patch, cut out a piece of it, and reaffixed it to the patient. The district court divided the counts into two groups for sentencing purposes. The victims in the first group were the hospital and its patients, who could have received adulterated vials of medicine. The victim of the other group was the patient from whom defendant cut out a part of a Fentanyl patch. The First Circuit affirmed. Those who faced the risk of receiving adulterated vials of pain medication for their pain pumps and the hospital were sufficiently different from the skin-patch victim to take into account at sentencing. U.S. v. Stella, 591 F.3d 23 (1st Cir. 2009).
1st Circuit upholds separate grouping of murder-for-hire counts of different victims. (470) Defendant was convicted of five counts of using interstate commerce facilities in the commission of murder-for-hire of his wife and daughter. The sentencing court put into one group the four counts relating to defendant’s wife, and grouped separately the count relating to his daughter. The First Circuit upheld the separate grouping of the counts relating to his wife and daughter, rejecting defendant’s claim that all five counts involved substantially the same harm. Crimes involving multiple victims, even if the offenses arose out of a single event, are properly grouped separately. U.S. v. Vasco, 564 F.3d 12 (1st Cir. 2009).
1st Circuit holds that fraud and tax evasions counts were improperly grouped together. (470) Defendant pled guilty to fraud and tax evasion based on his participation in a scheme to defraud several food distributors, and failing to report the fraudulent income. Because § 2T1.1(b) (1) required the court to add two levels to the tax evasion offense level for failure to report criminally derived income, the court found that grouping was required under § 3D1.2(c) because the fraud conduct embodied the same conduct. Nonetheless, the First Circuit found that grouping of the fraud and tax evasion counts improper. Even when one count embodies conduct treated as an adjustment to a second count, the counts cannot be properly grouped under § 3D1.2(c) unless they are “closely related.” The fraud and tax evasion counts here were not closely related. The two crimes involved different victims, caused different harms, and involved different conduct. Moreover, if grouping were permitted, there would be no punishment consequences for the tax evasion conduct. Defendant’s offense level for the grouped offenses would be the same as his offense level for the fraud counts alone. Grouping also was not proper under § 3D1.2(d). In addition to requiring that the counts be based on the amount of harm or loss, grouping under § 3D1.2 (d) also requires that the offenses be of “the same general type.” Note 6 to § 3D1.2. U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004).
1st Circuit holds that consecutive sentences may be imposed on grouped counts. (470) Defendant argued that the district court improperly refused to group his drug and money laundering counts; the government argued that the separate grouping was proper. The First Circuit found that both parties misunderstood the district court’s actions. The district court did, in fact, group the two counts for sentencing purposes. The court’s imposition of consecutive sentence did not constitute a rejection of the grouping. Section 5G1.2(d) provides that if the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the court should impose consecutive sentences to the extent necessary to produce a combined sentence equal to the total punishment. Defendant’s guideline “range” was a life sentence. Each offense of conviction carried a statutory maximum of 20 years. Therefore, the sentencing court indicated that it would exercise its “discretion” under § 5G1.2(d) and impose consecutive sentences on the two counts to get as close to a life term as possible. Section 5G1.2(d) is mandatory, not discretionary. The grouping of defendant’s two counts pursuant to § 3D1.2 did not preclude the imposition of consecutive sentences on each of them. “Grouping and stacking are separate concepts relevant in different stages of the sentencing process.” U.S. v. Chase, 296 F.3d 247, 251 (4th Cir. 2002). U.S. v. Garcia-Torres, 341 F.3d 61 (1st Cir. 2003).
1st Circuit holds that court should have bundled counts according to those that contained exact same victims. (470) Defendant made four threatening phone calls and one threatening visit to a family, each time threatening different combinations of family members. The district court grouped the five counts into three groups, making one group for each of the three members of the family. This resulted in those counts that had more than one victim being placed into more than one group. The First Circuit ruled that the court should have split each count by victim, bundling counts according to those that contained the exact same primary victims. The same prohibition against grouping within a single count indictment would apply to multiple grouping within any given single count of a multi-count indictment. Had the district court bundled the counts according to those that had the exact same victims, it would resulted in the same guideline range reached by the court under the application of the guidelines it adopted. Therefore, the error was harmless. U.S. v. Nedd, 262 F.3d 85 (1st Cir. Sept. 4, 2001).
1st Circuit says money laundering offenses listed on same row of § 3D1.2(d) are grouped “automatically.” (470) Following § 3D1.2(d), the district court grouped together defendants’ two money laundering counts (§ 2S1.2) with his four counts of engaging in monetary transactions with the proceeds of illegal activity (§ 2S1.1). Some cases have suggested that inclusion on the list of offenses under § 3D1.2(d) does not mean that grouping is automatic. The First Circuit found that these cases only question whether it is imperative to group all offense covered by guidelines listed in paragraph 2 of § 3D1.2(d), and not those offenses listed in the same row of that paragraph (each row is set off by a semicolon). See e.g. U.S. v. Harper, 972 F.2d 321 (11th Cir. 1992) (refusing to group offenses under §§ 2S1.1 and 2D1.1, stating that “grouping is not automatic” for offenses on the list in paragraph 2 of § 3D1.2(d)). The panel also concluded held that counts under guideline §§ 2S1.1 and 2S1.2, which are listed in the same row of paragraph 2 of § 3D1.2(d) “are to be grouped automatically.” Since the grouping was proper, the district court was required to aggregate the total value of the funds involved in all the grouped offenses. U.S. v. Zanghi, 189 F.3d 71 (1st Cir. 1999).
1st Circuit says environmental guideline applied to defendant who illegally shipped freon into U.S. (470) Defendant operated a Canadian company that shipped freon to U.S. customers without required consumption allowances. The district court sentenced defendant under the customs tax guideline, which bases the offense level on the amount of lost customs taxes. Because no duty was payable on the importation of freon, defendant’s base offense level would have been 4. Note 2 to § 2T3.1 says that where the duties evaded does not adequately reflect the harm, an upward departure may be warranted, using an “alternative measure of the ‘duty’ evaded.” The district court, viewing excise taxes as an “alternative measure,” applied an 13-level enhancement based on the amount of federal excise taxes that U.S. customers avoided by buying from defendant. The First Circuit held that under the grouping rules, the district court should have sentenced defendant under the environmental guideline, since it carried a higher offense level (6 versus 4 under the customs guideline). See § 3D1.3(a). Also, the commentary to § 2T3.1 says that if the offense involved a contraband item covered by another guideline, a court should apply that offense guideline if it would result in a greater offense level. The district court may have incorrectly thought that the enhanced offense level of 17, reached under its alternative measure approach, was the proper comparison. However, the alternative measure may only be implemented by a departure from the guideline. Thus, the controlling offense level after the grouping was 6 under the environmental offense guideline, assuming no specific offense adjustments. Although it is possible that the court could then depart upward to impose the same sentence, this was a decision for the district court to make in the first instance. U.S. v. LeBlanc, 169 F.3d 94 (1st Cir. 1999).
1st Circuit rejects grouping of money laundering and fraud counts. (470) Defendant ran a fraud scheme that solicited borrowers to pay “advance fees” for loan transactions that he never intended to consummate. He was convicted of fraud and money laundering. The First Circuit held that the district court properly treated the fraud and money laundering convictions in separate groups. Section 3D1.2(d) applies where the offense level for a given set of counts “is determined largely on the basis of the total amount of harm or loss.” Subsection (d) does not encompass fraud and money laundering because the offense level for money laundering is generally not determined on the basis of the total harm. The base offense level for any money laundering offense is 23. The offense level is subject only to modest increases on the basis of amount laundered, at least until that amount becomes very large. For example, there is no increase if the laundered amount is no more than $100,000. In defendant’s case, the amount laundered was between $100,000 and $200,000, and there was just a one-level increase. Thus, in this case at least, the offense level for money laundering was not based on aggregate harm and did not fall under subsection (d). U.S. v. Kneeland, 148 F.3d 6 (1st Cir. 1998).
1st Circuit remands where court computed two guideline ranges for separate groups. (470) Defendant pled guilty to charges stemming from two separate boat trips to smuggle aliens into the United States. Each incident was the subject of a different indictment. The district court calculated a guideline range of eight to 10 months for one incident and a range of four to 10 months for the other. The court then departed upward to a five year sentence, followed by a consecutive four year sentence. The 1st Circuit ruled the district court properly grouped the counts relating to each smuggling incident separately under § 3D1.2(b), application note 3, example 7. However, the court should not have used separate guideline ranges for each of the two indictments. If the court had followed § 3D1.4, defendant would have had a guideline range of 12 to 18 months. Because it was unclear whether the court would still have departed upward to a nine-year sentence if it had calculated defendant’s guideline range properly, remand was necessary. U.S. v. Hernandez-Coplin, 24 F.3d 312 (1st Cir. 1994).
1st Circuit groups defendant’s failure to appear for sentencing with his earlier conviction. (470) Defendant was convicted of credit card fraud, but failed to appear for sentencing. A year later, he was apprehended and convicted for failing to appear. The 1st Circuit reversed the district court’s sentence on the failure to appear count because 5G1.3 required application of the grouping rules in a case in which a defendant’s second crime occurred after conviction for the first but before defendant began serving the earlier sentence. Under 3D1.2(c), the counts would have been grouped had sentencing occurred in a single proceeding because defendant’s failure to appear constituted an adjustment (obstruction of justice) to his sentence for the first offense. Accordingly, defendant’s sentence for the first and second offense combined could not exceed the sentence that would have been imposed under the grouping rules if the sentences had been imposed in the same proceeding. Notwithstanding the defendant’s failure to object below, the court remanded for resentencing. U.S. v. Agoro, 996 F.2d 1288 (1st Cir. 1993).
1st Circuit says defendant was not entitled to be sentenced as if charged in single indictment. (470) Defendant was sentenced on an arson count consecutively to an earlier sentence on a gun-sale count. He claimed that he would have received a lesser sentence if he had been charged with the two crimes in a single indictment. While recognizing that the multiple-count rules might lead to different sentences, the 1st Circuit rejected defendant’s right to the lesser sentence, noting that the lack of similarity between the crimes precluded their being charged in a single indictment. In an appropriate case, the effect of separate proceedings might be adjusted through a departure. U.S. v. Flowers, 995 F.2d 315 (1st Cir. 1993).
1st Circuit finds no ex post facto problem where earlier embezzlements were “relevant conduct” for later ones. (470) From 1987 to 1991, defendant embezzled large sums of money from his employer. During this period, §2B1.1(b)(1) was amended to increase the base offense level. The district court applied the amendment, even though some of the embezzlements occurred earlier. The 1st Circuit affirmed, although it rejected the government’s contention that defendant committed a continuing offense. Defendant was formally sentenced for some offenses which were completed before the guideline increase, but this did not prejudice him, because under the “relevant conduct” section of the guidelines, his sentences for the post-amendment conduct would be based on the full amount embezzled. Even if some of the sentences for the earlier embezzlements could not be supported, this did not affect defendant since all of his sentences were to be served concurrently. U.S. v. Regan, 989 F.2d 44 (1st Cir. 1993).
1st Circuit reviews grouping decision under clearly erroneous standard of review. (470) The 1st Circuit rejected a de novo standard review of the district court’s decision to group defendant’s offenses into four groups under guideline section 3D1.2. Central to the district court’s decision to group the counts was a finding that defendant’s offenses did not constitute a single ongoing plan. Because this was a finding of fact, 18 U.S.C. section 3742(e) required a clearly erroneous standard of review. The court also found that the statute’s requirement that an appellate court give “due deference” to the district court’s application of the guidelines to the facts translated into a clearly erroneous standard of review. “This is not a situation where the court has committed pure legal error by misinterpreting the words of the guideline.” The issue was “a mixed question of law and fact.” U.S. v. Pilgrim Market Corporation, 944 F.2d 14 (1st Cir. 1991).
1st Circuit upholds decision to separately group offenses involving sale of adulterated food. (470) Defendant pled guilty to eight counts involving the sale, storage and transportation of adulterated meat and poultry products. The 1st Circuit upheld the district court’s decision to group the eight counts into four different groups. Although the counts involved the same victim, the public, they did not evidence a common scheme or plan. Some of the charges involved selling rodent-infested meat on several different occasions, and unless defendant had “some Pied Piper arrangement,” this could hardly be part of a common scheme or plan. There also was evidence that the contamination was caused by several different sources. Finally, the difference in dates between the groups also negated the finding of a common scheme or plan. The court also rejected defendant’s claim that the offenses should have been grouped under guideline section 3D1.2(d) as offenses involving substantially the same harm. U.S. v. Pilgrim Market Corporation, 944 F.2d 14 (1st Cir. 1991).
1st Circuit gives “due deference” to district court’s determination of how to group counts. (470) Defendant challenged the district court’s grouping of his counts under guideline § 3D1.2. The 1st Circuit found that the determination of whether and how to group counts under the multiple counts provisions of the guidelines more closely resembles an application of the guidelines to the facts than a finding of fact. Accordingly, an appellate court should give “due deference” to the grouping determinations of the district court. U.S. v. Cousens, 942 F.2d 800 (1st Cir. 1991).
1st Circuit upholds separate grouping of firearms counts. (470) Defendant pled guilty to nine separate firearms violations. The district court grouped seven of those counts together under guideline § 3D1.2 because the offenses were committed close together, out of a common fund of money, and for a common scheme or plan. Each of the other two counts were grouped separately. The 1st Circuit upheld the separate grouping of the firearms counts, concluding that the differences between the separate counts and the remaining seven counts were sufficient to justify separate grouping. Defendant purchased the weapon in one of the separate counts almost two years before he purchased the guns identified in the seven grouped counts. The guns involved in the other separate count, though purchased only five weeks after the guns purchased in the grouped counts, included a pistol purchased from a different seller. This weapon was allegedly purchased for self defense purposes, while the remaining firearms were allegedly purchased for hunting and target practice. U.S. v. Cousens, 942 F.2d 800 (1st Cir. 1991).
1st Circuit affirms grouping continuing criminal enterprise charge with substantive counts. (470) Defendant was convicted of conducting a continuing criminal enterprise and numerous substantive drug counts. Under guideline § 3D1.2(d), the district court grouped all of the counts together. The substantive drug offenses all had the same base offense level of 36 under guideline § 2D1.1, while the CCE charge carried a base offense level of 32 under guideline § 2D1.5. Defendant complained that, by operation of the grouping principles, the CCE offense took on the higher offense level of the surrounding substantive offenses. Were the CCE offense level calculated separately, the base offense level would be 32, with no upward adjustment for his role in the offense. The 1st Circuit found no merit in this argument, since the guidelines expressly mandate such grouping. Moreover, there is nothing surprising, or unfair, about this result. The CCE base offense level is a minimum, and when a defendant is also convicted of substantive counts involving vast amounts of drugs, it makes sense for the offense level to increase. U.S. v. David, 940 F.2d 722 (1st Cir. 1991).
1st Circuit upholds grouping third firearms offense separately from two earlier firearms offenses. (470) A jury found defendant guilty of unlawfully possessing firearms on three separate occasions. Since defendant was also found in possession of drugs on the first two occasions, the first two counts were grouped together. The 1st Circuit found that it was proper to group the third count separately from the first two. The first two counts involved possession of drugs and guns in the same house in the same town. The third count involved different officers, finding a different weapon, without drugs, in a different home, in a different town. The difference in place, time, nature of the guns, lack of drugs and intervening arrests, supported the conclusion that the third offense did not share a “common criminal objective” with the first two offenses, nor was it part of a common scheme or plan. U.S. v. Wheelwright, 918 F.2d 226 (1st Cir. 1990).
1st Circuit upholds upward departure to ten years for fourteen bank robberies. (470) The multiple count section of the guidelines, U.S.S.G. 3D1.4, provides no additional time if more than five robberies are committed. The commentary states that “departure would be warranted in the unusual case where the additional offenses resulted in a total significantly more than five units.” Based on the commentary, the court departed upward from 57-71 months to 120 months, because of defendant’s nine additional robberies and one attempted robbery. The 1st Circuit affirmed, holding that the departure was “not unreasonable” even though the extent of departure was approximately equal to the underlying punishment. U.S. v. Chase, 894 F.2d 488 (1st Cir. 1990).
2nd Circuit upholds separate grouping of kidnapping and passport fraud. (470) Defendant was convicted of making a false statement on a passport application, international parental kidnapping, and conspiracy. He argued that the district court erred in “grouping” the convictions for kidnapping and conspiracy to commit kidnapping, but not the conviction for passport fraud, because, in defendant’s view, all three charges arose from a common scheme as part of “a single criminal episode” under § 3D1.2 note 3. The Second Circuit upheld the separate grouping. The victims of the kidnapping and conspiracy to kidnap were the same—defendant’s wife and their son. However, society at large was the victim of defendant’s passport fraud. U.S. v. Hasan, 586 F.3d 161 (2d Cir. 2009).
2nd Circuit upholds separate grouping of sexual offenses against same victim on different days. (470) While serving as a guard in a prison, defendant engaged in sexual activity with four female inmates, some of them on more than one occasion. Defendant challenged the district court’s decision to group separately sexual offenses against the same inmate, committed on different days. Reviewing the issue de novo, the Second Circuit held that the district court was correct not to group the separate acts of sexual misconduct occurring with the same inmate on different days. The use of force is not a requirement under § 3D1.2 for placing the same crimes against the same person in separate groups. Crimes do not necessarily involve substantially the same harm, which is the test for grouping under § 3D1.2, just because force is used. Also, two episodes of sexual misconduct that society has legitimately criminalized occurring with the same person on different days are not “substantially the same harm” for purposes of § 3D1.2. U.S. v. Vasquez, 389 F.3d 65 (2d Cir. 2004).
2nd Circuit adopts “either/or approach” to review of judge’s application of guidelines to facts. (470) While serving as a guard in a prison, defendant engaged in sexual activity with four female inmates, some of them on more than one occasion. At issue was whether the district court correctly decided not to group together the sexual offenses against the same inmate on different days. In determining the standard of review for this decision, the Second Circuit held that the statutory requirement of “due deference to the district court’s application of the guidelines to the facts,” 18 U.S.C. § 3742(e), required it to select either “de novo” review or “clearly erroneous” review, depending on the primary nature of the issue. To apply the “either/or approach” here, the court must determine whether the district court’s grouping decision involved primarily an issue of fact or law. While the application of the grouping rules might, in some circumstances, present primarily an issue of fact warranting clearly erroneous review, the panel found that the grouping determination here was proper for de novo review. The narrow issue in dispute was whether grouping of offenses involving the same person on different days is proper when force is used. That is a legal issue. The grouping issue turns on the meaning of “substantially the same harm” in § 3D1.2, an issue of guideline interpretation. U.S. v. Vasquez, 389 F.3d 65 (2d Cir. 2004).
2nd Circuit says obstruction increase was not double counting where base offense level came from fraud, not perjury, conviction. (470) Defendant was convicted of several counts of fraud and perjury. The district court grouped defendant’s perjury with his underlying fraud offense, using the fraud as the base offense level, and then enhanced that by two levels for the perjury. The Second Circuit rejected defendant’s argument that the obstruction increase resulted in double counting for the perjury offense. Defendant’s sentence was calculated using the underlying fraud count as the base. Absent the two-level obstruction increase, the sentence would not have reflected defendant’s perjury. U.S. v. Fiore, 381 F.3d 89 (2d Cir. 2004).
2nd Circuit says guidelines mandated grouping of obstruction count with fraud count to avoid double counting. (470) The district court divided defendant’s convictions into two groups: the first consisting of a Hawaii passport fraud, bail-jumping and obstruction of justice counts, and the second count containing only a New York passport fraud count. The Second Circuit found that the court’s enhancement of the New York passport count by two levels under § 3C1.1 for obstruction of justice, while at the same time separately grouping an obstruction count predicated on the same underlying behavior, violated § 3D1.2(c). Note 5 to § 3D1.2 provides that when conduct that represents a separate count is also a specific offense characteristic, the count represented by the conduct is to be grouped with the count to which it constituted an aggravating factor. This provision mandated the grouping of the obstruction count and the New York passport fraud count once the court enhanced the latter by two levels based on the same obstructive behavior. U.S. v. Leung, 360 F.3d 62 (2d Cir. 2004).
2nd Circuit holds that fraud and tax evasion counts should have been grouped under § 3D1.2(d). (470) Section 3D1.2(c) provides for grouping when one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts. Section 3D1.2(d) provides for grouping when the offense “is determined largely on the basis of harm or loss … or some other measure of aggregate harm.” The difference between which guideline is used for grouping is significant. Offenses grouped under § 3D1.2(a)-(c) are treated under a single offense level because they have enough in common to be treated as one crime (§ 3D1.2(a)), have already compensated for the offense within the guidelines themselves (§ 3D1.2(c)), or share a single scheme or plan. (§ 3D1.2(b)). In contrast, § 3D1.3(b) creates a unique mechanism for offenses grouped under § 3D1.2(d) by using the aggregate amount of money or drugs involved in the offenses to set the offense level for the grouped counts. The Second Circuit held that defendant’s fraud and tax evasion counts should have been grouped under § 3D1.2(d), not § 3D1.2(c). See U.S. v. Petrillo, 237 F.3d 119 (2d Cir. 2000). Both tax evasion and mail fraud follow offense level schedules that trigger substantially identical offense level increments based on the amount of loss. The court’s error was plain and affected substantial rights, since it decreased defendant total offense level by at least one, and possibly two, levels. U.S. v. Gordon, 291 F.3d 181 (2d Cir. 2002).
2nd Circuit upholds separate grouping of fraud and money laundering offenses. (470) Defendants were involved in an extensive securities fraud scheme. The Second Circuit upheld the district court’s decision to group the fraud and money laundering counts separately. The victims of the fraud and money laundering offenses were distinct – the individual investors suffered defendants’ fraud, while the public as a whole was the victim of defendants’ attempts to conceal their relationship to one another and the source of their illegally obtained funds. For example, when asked about the source of the funds obtained from one entity, defendant lied to the NASD, claiming that the funds were compensation for consulting services. This impeded the discovery of the source of the funds, and delayed the revelation of the fraudulent scheme to the public. U.S. v. Szur, 289 F.3d 200 (2d Cir. 2002).
2nd Circuit groups money laundering and embezzlement separately. (470) Defendant was convicted of multiple counts of embezzlement from employee benefit plan funds, money laundering, and related charges. The district court refused to group the embezzlement and money laundering counts together, finding they involved separate victims and separate offense. This was in accord with U.S. v. Napoli, 179 F.3d 1 (2d Cir. 1999), which ruled that the victims of fraud counts are those persons who have lost money or property as a direct result of the fraud, while the victim of money laundering is ordinarily society at large. Defendant pointed to a Napoli footnote stating that the case did not decide whether “the function of money laundering can sometimes be so highly interwoven into a fraud scheme that the fraud victim is the direct victim of the money laundering as well,” such that the counts should be grouped together. Defendant urged the court to find his actions “so highly interwoven” as to require grouping. The Second Circuit once again did not reach the issue, finding that defendant’s acts of embezzlement and money laundering were not so interlaced that “the fraud victim [was] the direct victim of the money laundering as well.” The court rejected U.S. v. Cusumano, 943 F.2d 305 (2d Cir. 1991), in which the Third Circuit permitted grouping of money laundering and pension embezzlement counts because the pension plan and its beneficiaries were victims of both offenses. U.S. v. McCarthy, 271 F.3d 387 (2d Cir. 2001), abrogation on other grounds recognized by U.S v. Robinson, 430 F.3d 537 (2d Cir. 2005).
2nd Circuit upholds separate grouping of fraud and money laundering counts. (470) Defendant devised a scheme to transfer his failing company’s assets to himself and his wife. He withdrew over one million dollars from the company and deposited this money into five different accounts under his or his wife’s name. Defendant then transferred the money a second time into secret accounts that he had set up using his wife’s maiden name, his mother-in-law’s home address, and false social security numbers. The Second Circuit held that the district court properly declined to group defendant’s money laundering and bankruptcy fraud counts under § 3D1.2. As in most cases involving these offenses, defendant’s fraud and money laundering conduct involved different harms to different victims. Defendant caused injury to the banks by fraudulently conveying assets of his company, and he caused injury to society at large by laundering these assets to deter others from discovering his criminal activity. U.S. v. Sabbeth, 262 F.3d 207 (2d Cir. 2001).
2nd Circuit holds that victims of transportation of stolen goods and money laundering were not the same. (470) Defendant participated in a conspiracy to steal automobile airbags and resell them to the public. The district court found that, under U.S. v. Napoli, 179 F.3d 1 (2d Cir. 1999), the victims of defendant’s money laundering activities were distinct from the victims of his conduct in transporting stolen goods, and thus did not involve “substantially the same harm,” for grouping purposes. See USSG § 3D1.2(b). The Second Circuit rejected defendant’s attempt to distinguish Napoli, and upheld the separate grouping. The panel rejected a distinction between the so-called “concealment” money laundering found in Napoli, and the “promotion” money laundering allegedly involved here. While there is a circuit split on whether money laundering and fraud counts ought to be grouped for sentencing purposes, none of the circuits has, to date, adopted a rule under which promotion money laundering results in grouping, while concealment money laundering does not. The victims of defendant’s conduct in transporting stolen airbags were not the same as the victims of his money laundering activity. Although footnote 8 in Napoli suggested grouping might be appropriate where the money laundering is “so highly interwoven into a fraud scheme that the fraud victim is the direct victim of the money laundering as well,” this was not such a case. U.S. v. Kalust, 249 F.3d 106 (2d Cir. 2001).
2nd Circuit rules tax evasion and mail fraud counts should be grouped together. (470) The district court refused to group defendant’s various mail fraud and tax evasion counts. Defendant argued that because the counts were substantial similar charges whose offense levels were determined by the total amount of harm or loss, the counts should have been grouped. The government agreed, in response to the Second Circuit’s decision in U.S. v. Napoli, 179 F.3d 1 (2d Cir. 1999). Napoli held that money laundering and fraud offense should not be grouped under § 3D1.2(d) since the offense level for money laundering is not “based primarily on the amount of money involved.” By contrast, both tax evasion and mail fraud follow offense level schedules that trigger substantially identical offense level increments based on the amount of loss. Moreover, the offenses here were both frauds, were part of a single continuous course of criminal activity, and involved the same funds. Although tax and fraud offenses involved different victims, this alone is not dispositive. See Note 6 to § 3D1.2. Based on Napoli, the Second Circuit agreed with the parties that the mail fraud and tax evasion counts should have been grouped. U.S. v. Petrillo, 237 F.3d 119 (2d Cir. 2000), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).
2nd Circuit holds that tax evasion, fraud and conversion should be grouped together. (470) The district court ruled that defendant’s tax evasion counts should be grouped separately from his fraud and conversion counts. The Second Circuit disagreed. Grouping is appropriate under § 3D1.2(d) when the offenses are of the “same general type.” U.S. v. Napoli, 179 F.3d 1 (2d Cir. 1999). The offense level tables for tax evasion, fraud, and conversion all increase at the same rate and use the same monetary division points. The unity of these tables showed that the offenses were of “the same general type.” Under § 3D1.2(d), defendant’s fraud and conversion constituted relevant conduct so long as the fraud and conversion “were part of the same course of conduct or common scheme or plan as the offense of conviction.” They were, since a large portion of the income that defendant failed to report on his tax returns was derived directly from the fraud and conversion. Thus, the correct analysis did not include the multi-count approach under § 3D1.4, but instead aggregated the loss attributable to all of defendant’s offenses. U.S. v. Fitzgerald, 232 F.3d 315 (2d Cir. 2000).
2nd Circuit rules conviction for failure to appear had to be grouped with underlying offense. (470) Defendant pled guilty to making false statements to federal agents and then failed to appear at his scheduled sentencing hearing. Guideline § 3D1.2(c) required that defendant’s failure to appear conviction be grouped with his false statement conviction. However, § 3D1.1(b) excludes from § 3D1.2 any count for which the statute requires a consecutive sentence. See also § 5G1.2(a) (a sentence imposed on a count for which the statute requires a consecutive sentence shall be determined by that statute). The failure to appear statute, 18 U.S.C. § 3146(b), says that any term of imprisonment for failure to appear shall be consecutive to the sentence for the underlying offense. The Second Circuit held that because § 3146 does not require that a term of imprisonment be imposed (a court may order a fine only), §§ 3D1.1(b) and 5G1.2(a) did not apply; thus, the failure to appear conviction should have been grouped with the underlying offense. This reading is consistent with Amendment 579 in the 1998 guidelines, implemented after defendant was sentenced. Note 3 to § 2J1.6 now states that a failure to appear count and the counts for the underlying offense are to be grouped together under § 3D1.2(c) and specifies that § 3D1.1(b) does not apply. Amendment 579 is a clarification that must be given effect on direct review. U.S. v. Kirkham, 195 F.3d 126 (2d Cir. 1999).
2nd Circuit groups money laundering and fraud counts separately. (470) Defendant participated in a scheme to lure foreign buyers to make sizeable deposits for the delivery of non-existent cigarettes. The Second Circuit held that the district court properly refused to group his fraud and money laundering counts together under either § 3D1.2(b) or (d). Section 3D1.2(b) only allows for grouping when counts involve the same victim. Section 3D1.2(d) requires grouping when “the offense level is determined largely on the basis of the total amount of harm or loss … or some other measure of aggregate harm …” Note 6 says that two counts that measure harm in quantities should be grouped only if the counts are also of the “same general type.” The offense level for fraud depends primarily on the amount of loss involved. By contrast, because the money laundering guideline sets the base offense level at either 20 or 23, the total offense level is based primarily on the base offense level, rather than the amount of money involved. Finally, grouping fraud and money laundering counts would produce anomalous result in cases where only a small portion of the funds obtained by a fraud are laundered. Grouping such counts would actually increase the defendant’s sentence. U.S. v. Napoli, 179 F.3d 1 (2d Cir. 1999).
2nd Circuit refuses to group tax and money laundering offenses together. (470) Defendant was an officer of a corporation that agreed to purchase real estate for $950,000. The deal called for a secret $100,000 cash payment to the seller at closing. When the sellers refused to accept $50,000 cash and a $50,000 cashier’s check, defendant drafted six checks totaling $50,000, each made payable to “cash” for an amount less than $10,000. Defendant arranged for the checks to be cashed, and then delivered the remaining $50,000 in cash to complete the transaction. In addition, defendant used a large number of his corporation’s checks for personal expenses. The corporation improperly deducted those items as corporate expenses on its tax returns, and defendant did not declare that income on his personal returns. Defendant pled guilty to one count of filing a false tax return and one count of conspiring to structure financial transactions to evade reporting requirements. The Second Circuit upheld the district court’s refusal to group the tax and money laundering counts together. The two offenses were not closely related, and did not involve the same victim, thus negating the possibility of applying §§ 3D1.2(a) and (b). Section 3D1.2(d) applies only if the offense level is determined largely on the basis of total loss. However, for his structuring offense, defendant received an offense level of 6 without any increase for the amount of funds involved. U.S. v. Bove, 155 F.3d 44 (2d Cir. 1998).
2nd Circuit holds that firearms counts should be grouped with armed robbery count. (470) Defendants argued that their armed postal robbery count should have been grouped with their felon in possession of a firearm count and their possession of a firearm with an obliterated serial number count. The Second Circuit agreed. Under note 5 to § 3D1.2, the unlawful possession of a firearm is grouped with armed robbery because the conduct embodied in possessing a firearm is substantially the same as possessing that firearm during a robbery. Here, the only act of possession the prosecution attempted to show was possession during the postal robbery. Thus, the conduct embodied in the possession of a firearm by a felon was indistinguishable from and temporally related to the offense conduct of possessing that firearm during the robbery. Moreover, § 3D1.2(d) mandates that all § 2K2.1 offenses be grouped. U.S. v. Gelzer, 50 F.3d 1133 (2d Cir. 1995).
2nd Circuit rules that adjustments are properly based on combined offense behavior. (470) Defendant fraudulently borrowed money from a bank to buy a building, and then burned the building to collect the insurance proceeds. The district court grouped the mail fraud and arson counts together because they were part of one continuous scheme. The Second Circuit ruled that the court properly applied the adjustments based on the combined offense behavior taken as a whole. The court calculated the offense level for the arson count (the offense with the highest offense level), and correctly followed the cross-reference to the fraud guideline. The offense level for fraud was calculated as a component of the offense level for arson. The enhancement for victimizing a financial institution and the enhancement for defendant’s role in the offense were proper. Having obtained the benefit of considering the bank and insurance frauds as continuous for grouping purposes, defendant could not demand that they be treated separately for the purpose of making adjustments. U.S. v. Mizrachi, 48 F.3d 651 (2d Cir. 1995).
2nd Circuit remands where court refused to make multiple count adjustment. (470) Defendant mailed three threatening letters to various people involved in his civil litigation, including a panel of district court judges. He was convicted of three different counts, but the district judge refused to make a multiple count adjustment. The judge completely discounted the convictions on the first two counts for sentencing purposes, stating that he did so because he thought the first two letters would never have been prosecuted had defendant not written the third letter to the judges. The 2nd Circuit remanded for resentencing. Prosecutors are given wide discretion in their charging decisions, and although a trial judge might disagree, it is not grounds for ignoring the guidelines. U.S. v. Malik, 16 F.3d 45 (2nd Cir. 1994).
2nd Circuit upholds leadership enhancement where CCE offense was not basis for combined offense level. (470) Defendant was convicted of multiple drug offenses, including running a continuing criminal enterprise (“CCE”). He argued that the district court misapplied the multicount provisions of the guidelines. He contended that because he was convicted of the CCE offense, which includes a leadership role within its elements, he could not receive a leadership enhancement under section 3B1.1(a). The 2nd Circuit found the multi-count provision was correctly applied. The district court treated all 14 counts as part of one “group,” and then aggregated the drug quantities under the non-CCE counts. Because the offense level produced by the aggregated drug offenses (40) was higher than that produced by the CCE count (32), the court used the offense level for the non-CCE counts as the combined offense level for the group. Under section 3D1.3(b), the court properly used the offense level for the substantive offenses because it was greater than the offense level for the CCE offense. U.S. v. Eng, 14 F.3d 165 (2nd Cir. 1994).
2nd Circuit upholds refusal to group counts of mailing threatening letters. (470) Defendant was convicted of mailing threatening letters to the same victim in March, May and July 1991. The 2nd Circuit upheld the district courts refusal to group these counts. They were properly treated separately since each letter inflicted separate psychological harm. Application note 4 to section 3D1.2 states that offenses that involve multiple, separate instances of fear and risk of harm, such as robbery of the same victim on multiple occasions, should not be grouped. U.S. v. Miller, 993 F.2d 16 (2nd Cir. 1993).
2nd Circuit says court must apply grouping rules in deciding extent of departure. (470) Defendant, the director of a halfway house, pled guilty to bribery for demanding and receiving sexual favors in exchange for money, drugs and promises of favorable treatment. The district court departed upward because (a) defendant’s conduct was an abuse of the warden/inmate relationship, (b) the affair had a widely disruptive impact upon the halfway house and the federal corrections system, and (c) defendant facilitated one inmate’s drug abuse. By analogizing each ground for departure to a different offense under the guidelines, the court made three different additions to defendant’s base offense level. The 2nd Circuit held that the district court violated U.S. v. Kim, 896 F.2d 678 (2nd Cir. 1990), by failing the apply the grouping rules in sections 3D1.1 through 3D1.5 in determining the extent of its departure. When conduct not taken into account by the guidelines provides the basis for an upward departure, the court should not impose a sentence that exceeds what would have been imposed under other guidelines that do take such conduct into account. U.S. v. Alter, 985 F.2d 105 (2nd Cir. 1993).
2nd Circuit affirms possible incorrect grouping because court also justified sentence on proper departure grounds. (470) Defendants were convicted of RICO and mail fraud charges, but they were sentenced under the environmental guideline, section 2Q1.2. The district court found that because the fraud offenses and the environmental offenses could not be grouped together, guideline section 3D1.4 required a two level adjustment. The 2nd Circuit found this problematic, because the underlying premise of grouping under section 3D is that there have been multiple counts and multiple convictions. Here no counts of the indictment charged defendants with violation of federal environmental laws, and accordingly, the only offenses subject to multiple count rules were the RICO and mail fraud offenses. However, resentencing was not necessary, because the district court ruled in the alternative that it would depart upward by two levels because the environmental guideline did not take into account the fact that defendants had defrauded various agencies and individuals. U.S. v. Paccione, 949 F.2d 1183 (2nd Cir. 1991).
2nd Circuit upholds treating firearm count as drug count. (470) Defendant was convicted of drug charges. Shortly thereafter, he was convicted of being a felon in possession of a firearm based upon his arrest while carrying a weapon en route to purchase drugs. The two indictments were consolidated for sentencing. In connection with the firearms offense, the district judge followed guideline section 2K2.1(c)(2), which provides that where a defendant possesses a weapon in connection with another offense, the guideline for the other offense applies if it results in a higher offense level. Since the drug guideline, section 2D1.1(c), resulted in a higher offense level, the judge treated the weapons offense as a drug offense. The judge then grouped the weapons offense with the other drug offenses under guideline section 3D1.2(d), and determined the base offense level by aggregating the drug quantities involved in the drug counts and the weapons count. The 2nd Circuit affirmed, ruling that the gun count was properly treated as a drug count, and then properly grouped with the other drug counts. U.S. v. Patterson, 947 F.2d 635 (2nd Cir. 1991).
2nd Circuit remands because error in computing one base offense level caused error in combined offense level. (470) Defendant’s offenses were placed into three different groups under § 3D1.4. However, the district court improperly determined that the offense level for one of the groups was 18 rather than 12. If the court had not added six levels to the offense level in that group, the offense level for that group would have been more than eight levels less serious than the group with the highest offense level, and thus would have been disregarded in computing the multiple count adjustment under § 3D1.4(c). Thus, defendant’s combined offense level should have been 27, not 28, and his maximum guideline sentence should have been 87 months, which was 10 months less than the 97-month sentence he received under the guidelines. Although the district court could have sentenced defendant for up to two more years on the non-guidelines counts, it was not possible to determine whether the district court would have done so if it had applied the guidelines properly. Accordingly, the 2nd Circuit remanded for resentencing. U.S. v. Hornick, 942 F.2d 105 (2nd Cir. 1991).
2nd Circuit affirms separate grouping of offenses for defendant who bribed police to assist escapes. (470) Defendant attempted to bribe an undercover police officer to assist in the escape of four federal prisoners who had recently been arrested in New York. During the course of the negotiations over a five-month period, defendant also requested the officer to arrange for the escape of two additional prisoners in custody in Texas. The 2nd Circuit upheld the district court’s decision to group the offenses involving the New York escapes separately from the offenses involving the Texas escapes. Although defendant was in occasional contact with the undercover officer for over five months, there was no single escape plan. Two distinct bribery payments were independently negotiated for the separate escapes of two prisoner groups located in different states. Defendant never approached the subject of aiding prisoners in Texas until more than a month after making a down payment on the escape of the New York prisoners. “Mere similarities between the agreements do not make them a common plan.” U.S. v. Ahuja, 936 F.2d 85 (2nd Cir. 1991).
2nd Circuit upholds separate grouping of false passport and heroin importation charges. (470) Defendant entered the United States presenting a passport that he had fraudulently obtained and carrying four balloons of heroin he had swallowed. On appeal, he contended it was improper for the district court to separately group his false passport count and his heroin importation count. The Circuit affirmed, finding that the interests protected by the laws regulating passports and the laws prohibiting narcotics smuggling are sufficiently different to preclude grouping. U.S. v. Odofin, 929 F.2d 56 (2nd Cir. 1991).
2nd Circuit holds that possession of a silencer and possession of a semi-automatic weapon should not be grouped together. (470) The 2nd Circuit rejected defendant’s argument that his conviction for possession of a silencer and his conviction for possession of a semi-automatic pistol should be grouped together. The court found that the two offenses did not involve substantially the same harm, since a silencer transforms an unmuffled gun into a far more threatening weapon. The 2nd Circuit also rejected defendant’s argument that his two convictions for escape should be grouped together. Since the two offenses occurred on two separate occasions, separated by three months, they merited separate, cumulative punishment. U.S. v. Bakhtiari, 913 F.2d 1053 (2nd Cir. 1990).
2nd Circuit upholds grouping perjury and tax evasion as separate offenses. (470) Defendant received secret cash payments which he did not report on his income tax return. Defendant then lied to a federal grand jury concerning his receipt of such funds. The 2nd Circuit held that the district court properly divided defendant’s offense conduct into two groups, since the laws prohibiting perjury and tax evasion protect wholly disparate interests and involve distinct harms to society. U.S. v. Barone, 913 F.2d 46 (2nd Cir. 1990).
2nd Circuit upholds grouping misapplication of bank funds and giving of bribes separately from accepting bribes. (470) Defendant bank presidents entered into an arrangement by which each defendant caused his own bank to give the other defendant large unsecured loans for the purpose of bank stock speculation. In calculating each defendant’s offense level, the district court divided each defendant’s offense level into two groups: first, misapplication of bank funds together with the giving of bribes, and second, the acceptance of bribes. The 2nd Circuit found that the first grouping was appropriate because, as to each defendant, the offenses involved the same property and the same bank as victim. The acceptance of bribes did not involve either the same property or the same victim, and therefore it was proper for the district court to consider this offense a separate group. U.S. v. McElroy, 910 F.2d 1016 (2nd Cir. 1990).
2nd Circuit reverses district court’s failure to group bribery and extortion counts together. (470) Defendant was convicted of extorting and accepting a $35,000 bribe. The 2nd Circuit found that the district court erred in not grouping these counts together under guideline § 3D1.2(a), since they involved “the same victim and the same act or transaction.” The error was not harmless, since grouping the counts would have resulted in a lower offense level. U.S. v. Stephenson, 921 F.2d 438 (2nd Cir. 1990).
2nd Circuit holds that counterfeiting offenses should not be “grouped” with alien offenses. (470) The 2nd Circuit held that section 3D1.2 does not permit counterfeit money offenses to be included in the same group with alien smuggling offenses. Although alien smuggling offense may be grouped with each other, they should not be grouped with unrelated offenses. The court rejected the argument that the United States is a “common victim” in both offenses. The interests protected by the immigration laws are distinct from the interests protected by the currency laws. U.S. v. Kim, 896 F.2d 678 (2nd Cir. 1990).
3rd Circuit rules later-enacted guideline may be applied to continuing course of wire fraud. (470) Defendant solicited his bank clients to invest in speculative real estate transactions that he controlled and were unrelated to bank products. He argued that the application of the § 2B1.1(b)(16)(A) investment advisor enhancement violated the ex post facto clause, since the enhancement did not exist at the time that he was an investment advisor. Courts may use later-enacted guidelines when sentencing “straddle” crimes. However, wire and mail fraud are not technically straddle crimes because they are complete upon the execution of each mailing or wiring. The Third Circuit found that in cases of a continuing course of wire fraud, the use of later-enacted guidelines is not an ex post facto violation. Section 3D1.2, in combination with the one-book rule, gives notice to the defendant that his or her offenses may be grouped for sentencing purposes and that the later-enacted manual will apply. Due to the grouping rule at § 3D1.2(d) and the one-book rule at § 1B1.11, defendant was on constructive notice that the November 2003 enhancement could apply to his entire scheme, should he continue it after the date of the enactment. U.S. v. Siddons, 660 F.3d 699 (3d Cir. 2011).
3rd Circuit holds that court did not err in imposing same concurrent sentence for each offense in group. (470) The district court found that the offense level for defendant’s money laundering and Travel Act offenses to be 16 and the offense level for his tax convictions to be seven. The court grouped the offenses together under § 3D1.2. The court then identified a guideline range of 21 to 27 months, based on an offense level of 16 and a criminal history category of I. The court then imposed concurrent sentences of 22 months on all six counts, including the two tax convictions. The Third Circuit found no error in the imposition of concurrent 22-month sentences on the tax counts. Guideline § 5G1.2(b) instructs a court to apply the same sentence to each count in the same group, unless the statutorily authorized maximum for that count is less than the minimum of the guideline range or the statutory minimum is greater than the maximum of the guidelines range. Because the statutory maximum for the tax offenses, three years, was more than the minimum guideline range of 21 months, and there was no mandatory minimum term of imprisonment for those offenses, the district court did not commit clear error when it imposed the same concurrent 22-month sentence on all counts. U.S. v. Lee, 359 F.3d 194 (3d Cir. 2004).
3rd Circuit holds that fraud and money laundering that were part of common scheme should have been grouped. (470) Defendant was convicted of money laundering and related charges connected to his participation in several fraudulent investment schemes. Section 3D1.2(b) requires the grouping of money laundering charges with the charges that generated the funds if the conduct is all part of one scheme with the same identifiable victims. The district court found that the money laundering and mail fraud counts had different victims, and thus refused to group the counts together. The Third Circuit reversed. Defendant’s acts of mail fraud and money laundering were part of a common scheme involving identical victims – defrauded investors. The laundering activity at issue involved funds that were proceeds of the fraudulent investment activity, and the laundering was simply the final step in the operation. U.S. v. Cordo, 324 F.3d 223 (3d Cir. 2003).
3rd Circuit says defendant held leadership role in both fraud and money laundering counts. (470) Defendant, the owner of a vocational school, manipulated the loan default rate of the school’s students by submitting false documents to lenders and making payments on behalf of student borrowers on the verge of default. He was convicted of fraud and money laundering, which the court grouped together because they involved the same victim. After grouping, the district court added a two-level leadership enhancement. Defendant argued that he played no leadership role in the money laundering, and that the leadership increase should have been applied to his fraud count before the grouping. The Third Circuit found no error, since even if the court should have determined the applicability of the adjustment before grouping, there was sufficient evidence to support a leadership adjustment on both the fraud and money laundering counts. Defendant instructed two school employees to submit fraudulent deferment and forbearance forms and to mail checks on behalf of student borrowers who were nearing default. It was the funds derived from those fraudulent activities that were “laundered” within the meaning of § 1957 and used to promote additional fraud. U.S. v. Cefaratti, 221 F.3d 502 (3d Cir. 2000).
3rd Circuit says individual creditors not secondary victims of bankruptcy fraud. (470) Section 3D1.2(b) mandates grouping when “counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.” The Third Circuit held that defendant’s tax evasion and bankruptcy fraud counts did not involve the same victim, and therefore the district court properly refused to group the counts under § 3D1.2(b). The United States was the only victim of the tax fraud counts, and the IRS was a creditor and therefore a victim of the bankruptcy-asset concealment case. However, defendant’s company had 24 creditors. Grouping is determined according to the primary victim Congress sought to protect in enacting a statute. All creditors benefit from the integrity of the bankruptcy system. Excluding the IRS and the Pennsylvania Department of Revenue, defendant’s company owed $150,000 to 22 creditors, including debts of $26,064, $15,315, and $10,250 to various individual creditors. These were substantial sums, and these creditors were not “secondary” victims of defendant’s fraud. U.S. v. Thayer, 201 F.3d 214 (3d Cir. 1999).
3rd Circuit groups wire fraud and tax evasion separately. (470) Defendant embezzled $12 million from his employer, and used the money to acquire and restore antique clocks. He failed to report the embezzled funds on his income tax returns, and was convicted of wire fraud and tax evasion. The Third Circuit held that the district court properly grouped the wire fraud and the tax evasion counts separately. The case was controlled by U.S. v. Astorri, 923 F.3d 1052 (3d Cir. 1991). The Sentencing Commission listed the failure to report criminally-derived income as a specific offense characteristic for tax evasion in order to deter concealment of such income. It would negate that deterrence if that designation were the basis for grouping. Like Astorri, the counts here involved different victims, different harms and different types of conduct. The tax evasion conduct represented significant criminal conduct in addition to the fraud count. The two counts were not so closely related that grouping was required. U.S. v. Vitale, 159 F.3d 810 (3d Cir. 1998).
3rd Circuit says court should have used guideline for schoolyard offense, not CCE offense. (470) Defendant was convicted of engaging in a Continuing Criminal Enterprise, distributing cocaine near a school and other drug related counts. The government argued that defendant should be sentenced under § 2D1.2, the guideline for distributing drugs near a school, because it resulted in the highest offense level (43). The district court, however, found that the CCE count was a more serious offense, and applied § 2D1.5, which carries an offense level of 42. The Third Circuit held that the court should have applied § 2D1.2 because it carried the highest offense level. The counts were grouped under § 3D1.2(d), which provides that the offense guideline that results in the highest offense level should be used. The district court’s perception of the seriousness of the crime did not permit it to disregard the explicit instructions in the guidelines. Even assuming it is improper to impose a higher penalty for a “lesser-included offense,” defendant’s conviction for distributing drugs near a school was not a lesser-included offense of the CCE count. U.S. v. Riddick, 156 F.3d 505 (3d Cir. 1998).
3rd Circuit upholds separate grouping of bribery and sale of government property counts. (470) Defendant, an INS employee, accepted bribes in return for INS metal templates, a device that imprints a marking when fingerprints and signatures are affixed to alien registration “green” cards to demonstrate authenticity. He also accepted a bribe in return for a copy of the federal PSR for a specific defendant. The Third Circuit upheld the separate grouping of the bribery and the sale of government property counts. Section 3D1.2(d) provides for grouping where the offense conduct is ongoing or continuous and the offense level provided by the applicable guideline already takes into account the fact that there has been a course of harmful conduct. The district court properly found accepting bribes and stealing a PSR did not constitute the type of ongoing criminal conduct envisioned by § 3D1.2(d). Although defendant’s offense level was enhanced because he took more than one bribe in exchange for INS templates, the enhancement did not encompass defendant’s theft of the PSR. U.S. v. Rudolph, 137 F.3d 173 (3d Cir. 1998).
3rd Circuit upholds separate grouping of extortion counts despite pattern of racketeering. (470) Defendant was convicted of racketeering, conspiracy, extortion, embezzlement and obstruction of justice. He objected to the district court’s refusal to group the extortion offenses, claiming that they should have been grouped together because they were all alleged in the RICO count as part of a pattern of racketeering activity. The Third Circuit upheld grouping the extortion offenses separately because there were different victims, and no count involved conduct that was treated as a specific offense characteristic in the guideline for another count. Under these circumstances, the fact that the extortions were a part of a pattern of racketeering activity was irrelevant to the grouping issue. U.S. v. Fiorelli, 133 F.3d 218 (3d Cir. 1998).
3rd Circuit approves departure but finds extent violates rule of “declining marginal punishment.” (470) Defendant pled guilty to several child pornography counts. The district court departed upward under the commentary to § 3D1.4 for the additional, uncounted victims that defendant harmed. The Third Circuit agreed that the additional victims justified a departure, but found that the extent of the departure violated the rule of “declining marginal punishment.” Section 3D1.4 only accounts for six victims. The four additional identified victims justified a departure. But adding four levels for the four additional victims was contrary to the principle of declining marginal punishment set out in the commentary to Chapter 3D. Victims 2 through 6 raised defendant’s imprisonment by 55 months, or 11 months per victim. The court’s departure for victims 7 through 10 raised defendant’s sentence 84 months, or 21 months per victim. This was improper. U.S. v. MacLeod, 80 F.3d 860 (3d Cir. 1996).
3rd Circuit rejects grouping in child pornography case because each offense involved different children. (470) Defendant pled guilty to transporting, distributing and reproducing child pornography. He denied any involvement in producing child pornography. The Third Circuit upheld the district court’s refusal to group any of the counts together. Grouping under § 3D1.2(b) (same victim) was inappropriate because each of defendant’s counts involved different victims. The primary victims in these offenses were the children depicted in the pornographic materials. U.S. v. Ketcham, 80 F.3d 789 (3rd Cir. 1996).
3rd Circuit upholds separate grouping of firearms counts. (470) On five occasions, defendant purchased a firearm from a licensed dealer by misrepresenting that she had never been convicted of a felony. The district court divided the counts into three separate groups based on the time frame in which the purchases were made. The Third Circuit rejected defendant’s claim that the counts should be grouped together. Defendant’s conduct was not ongoing and continuous under § 3D1.2(d). She made five purchases over a period of several months. She gave inconsistent explanations for her purchases. There was nothing in the record to suggest that the purchases were tied together in any respect other than being from the same dealer. U.S. v. Bush, 56 F.3d 536 (3d Cir. 1995).
3rd Circuit separately groups illegal firearms purchases made on multiple occasions. (470) Over a two year period, defendant purchased seven firearms from a licensed dealer on five different occasions. Each time defendant used a fictitious name and misrepresented that he had never been convicted of a felony. He was later found in possession of two of the illegally purchased guns. Defendant pled guilty to seven counts of making false statements in connection with a firearm purchase, and one count of being a felon in possession of a firearm. The district court ruled that the eight counts formed five separate groups under § 3D1.2. The Third Circuit upheld the separate grouping. Section 3D1.2(b) (offenses involving same victim) was not applicable because each time defendant illegally acquired a firearm, there was a separate and distinct fear and risk of harm to society. Section 3D1.2(c) did not require grouping. Where there was some overlapping of counts, the court did group those counts together. Finally, the offenses did not need to be grouped simply because unlicensed firearm dealing counts are grouped under § 3D1.2(d). U.S. v. Griswold, 57 F.3d 291 (3d Cir. 1995).
3rd Circuit affirms separate grouping for mail fraud, bribery and tax evasion charges. (470) Defendants pled guilty to various counts of consumer fraud, bribery, conspiracy and tax evasion resulting from their operation of a roofing business. The 3rd Circuit affirmed the district court’s decision to group the counts according to three principal offenses: mail fraud, bribery and tax evasion. The three groups involved different victims (the mail fraud involved homeowners, the bribery involved the union, and the tax evasion involved the government), so that grouping under either subsection (a) or (b) of section 3D1.2 would have been improper. Although all of the counts were listed in subsection (d) as appropriate for grouping, that did not mean the counts must be grouped. Counts must be of the same general type before grouping is appropriate. Here, each of the groups differed in nature and were not an essential part of or related to the other groups. ), superseded by guideline on other grounds as state in U.S. v. Corrado, 53 F.3d 620 (3d cir. 1995).
3rd Circuit reviews “grouping” issue under clearly erroneous standard. (470) Defendant contended that his money laundering counts were ancillary, rather than related, to the other counts in the indictment, and therefore the district court should not have grouped the money laundering offenses with his other offenses. The 3rd Circuit held that this was a factual issue governed by the clearly erroneous standard of review. Although the court previously stated that construction of guideline § 3D1.2 was a legal issue for plenary review, in that case the issue was whether offenses for which society is the victim were properly grouped together. In contrast, the issue in this case was whether defendant’s offenses were part of one overall scheme, which the court viewed as essentially a factual issue. U.S. v. Cusumano, 943 F.2d 305 (3rd Cir. 1991).
3rd Circuit upholds grouping money laundering offense with kickback offenses. (470) Defendant contended that his money laundering counts were ancillary, rather than related, to the other counts in the indictment, and therefore the district court should not have grouped the money laundering offenses with his other kickback offenses. He contended that the evidence showed that his codefendant made all the arrangements concerning the handling of money, while defendant played a minor role in the offense. The 3rd Circuit found no merit to this argument, even if defendant’s “dubious characterization of the facts” was accurate. The issue under the guidelines is whether the convictions involved the same victim and two or more acts that were part of the same common scheme or plan. Here, the victim of all the offenses was the same pension fund and its beneficiaries. All of the offenses were part of one overall scheme to obtain money from the pension fund and convert it to the use of defendant. The court also rejected defendant’s claim that grouping the offenses together was inconsistent with the overall intent of the guidelines to sentence on the basis of a “real offense” system rather than a “charge offense” system. U.S. v. Cusumano, 943 F.2d 305 (3rd Cir. 1991).
3rd Circuit affirms upward departure based upon multiple assault victims. (470) Defendant and a codefendant assaulted three Assistant U.S. Attorneys but pled guilty to assaulting only one of them. The district court departed upward by three levels based on defendant’s assault of multiple victims. The 3rd Circuit affirmed, finding no evidence that the sentencing commission considered multi-victim aggravated assaults in formulating guideline § 2A2.2(b)(1). The three-level departure was also reasonable, even though only two additional victims were involved. The district court structured the departure using the concept of grouping the counts, treating defendant as if he had been convicted of three counts of aggravated assault. U.S. v. Johnson, 931 F.2d 238 (3rd Cir. 1991).
3rd Circuit reverses failure to group together firearms offenses. (470) Defendant pled guilty to possession of firearms by a felon, delivery of firearms to a common/contract carrier, and possession of an altered firearm. The 3rd Circuit found that the district court improperly failed to group together these charges. The possession of firearms by a felon count and the possession of an altered firearm count should have been grouped under guideline § 3D1.2(c), which provides for the grouping of offenses in which one count is also a specific offense characteristic of another count. The guidelines provide for an increase in offense level for possession of a firearm by a felon if the firearm has an altered or obliterated serial number, and defendant received such an increase. In addition, grouping of the offenses of possession of a firearm by a felon and delivery to a common/contract carrier was required because to hold otherwise would provide enhanced punishment for defendant’s status as a felon, rather than additional conduct. U.S. v. Riviere, 924 F.2d 1289 (3rd Cir. 1991).
3rd Circuit upholds separately grouping fraud and tax evasion counts. (470) Defendant pled guilty to one count of wire fraud and one count of income tax evasion in connection with a fraudulent stock brokerage scheme. The 3rd Circuit found that the district court properly increased defendant’s offense level for his tax evasion conviction. The tax evasion and fraud counts did not involve the same victims and thus grouping under guideline § 3D1.2(a) was inappropriate. The fraud count did not embody the conduct treated as a specific offense characteristic under the tax evasion count, and thus grouping under guideline § 3D1.2(c) was inappropriate. U.S. v. Astorri, 923 F.2d 1052 (3rd Cir. 1991).
4th Circuit finds court properly grouped only most serious witness tampering count. (470) Defendant was convicted of conspiracy to commit marriage fraud and other criminal counts stemming from his participation in a scheme to arrange fraudulent marriages between Navy sailors and foreign nationals. He argued that the district court incorrectly grouped only one of his two witness tampering counts (Counts 9–10) with the aiding and abetting false claims counts. Had the district court grouped both witness tampering counts, defendant’s final guideline range would have been lower. The Fourth Circuit found no error. There were two witness tampering counts, each of which could have supported a two-level enhancement to the more serious count of aiding and abetting false claims. But because the guidelines permit only one obstruction of justice enhancement under § 3C1.1, Note 5 to § 3D1.2 directs the district court to group only the count “representing the most serious” obstructive conduct. The district court meticulously followed this analysis, and found that Count 10 was the most serious because it “caused the potential witness to be in fear and physically upset.” U.S. v. Jones, 716 F.3d 851 (4th Cir. 2013).
4th Circuit rejects use of murder cross-reference where neither conviction nor cross-referenced offense was groupable. (470) Defendant was convicted of being a felon in possession of a firearm based on an incident with his girlfriend. However, the bulk of his sentencing hearing was devoted to testimony about a home invasion robbery and murder that occurred one week after the offense of conviction. The district court found that the murder was relevant conduct to the firearm offense, and applied the cross-reference in § 2K2.1(c)(1) to the murder guideline, § 2A1.1. The Fourth Circuit found sufficient evidence that defendant committed the murder. However, the murder was not relevant conduct under § 1B1.3(a)(2), and thus did not support application of the § 2K2.1(c)(1) cross-reference. The relevant conduct guideline applies where the offenses would require grouping of multiple counts under § 3D1.2. Although there is a circuit split on this issue, the panel held that subsection (a)(2) is applicable only when both the offense of conviction and the relevant conduct offense are capable of grouping. U.S. v. Horton, 693 F.3d 463 (4th Cir. 2012).
4th Circuit holds that decision to aggregate drug quantities involved in separate charges was reasonable. (470) Defendant was involved in three separate drug transactions and pled guilty to a three-count indictment. Following § 3D1.2, the district court totaled the cocaine base in all three transactions, resulting in an offense level of 32, and sentenced defendant to 97 months, the bottom of the advisory guideline range. The judge rejected defendant’s request not to apply § 3D1.2’s drug quantity grouping provision, finding that suggestion would “gut … the guidelines.” The Fourth Circuit held that the district court’s decision to aggregate the drug quantities in the three drug charges was not unreasonable. Guideline sentences are presumptively reasonable because of the legislative and administrative process by which they were created. In addition, guidelines sentences are based on individualized fact-finding which takes place in a process that invites defendants to raise objections and requires courts to resolve them. The court here properly considered the § 3553(a) factors, even thought it did not address each factor on the record. The court undertook a detailed inquiry into the various circumstances bearing upon defendant’s sentence, including his character and his criminal history. U.S. v. Johnson, 445 F.3d 339 (4th Cir. 2006).
4th Circuit says fact that stolen firearm was element of 16 of 19 grouped offenses did not preclude stolen firearm increase. (470) Defendant was convicted of various firearms offenses. The district court grouped together 16 counts of possessing stolen firearms, one counting of dealing firearms without a license, and two counts of selling firearms to juveniles. Defendant argued that a § 2K2.1(b)(4) stolen firearm enhancement was impermissible because the fact that the firearms were stolen was an element of 16 of the 19 grouped offenses. Note 12 to § 2K2.1 provides that “If the only offenses to which § 2K2.1 applies is … (offenses involving a stolen firearm or stolen ammunition) and the base offense level is determined under subsection (a)(7), do not apply the adjustment in subsection (b)(4) unless the offenses involved a firearm with an altered or obliterated serial number.” The Fourth Circuit held that the stolen firearm enhancement was properly applied here. Note 12 did not prohibit the (b)(4) enhancement because § 2K2.1 did not apply only to defendant’s stolen firearms offenses. Were the (b)(4) enhancement disallowed here, defendant’s offense level would not reflect the increased severity of her crimes based on the fact that some of the firearms she sold to juveniles and sold without a license were stolen. U.S. v. Schaal, 340 F.3d 196 (4th Cir. 2003).
4th Circuit rules court properly grouped fraud and money laundering counts. (470) Defendant was convicted of wire fraud and money laundering based on his efforts to obtain investors for a bogus scheme to market a drug that was supposed to treat AIDS and cancer. Defendant argued that because this was essentially a fraud case, the district court erred in referring to the money guideline instead of just the fraud guidelines. The Fourth Circuit disagreed. The Statutory Index (Appendix A) directed the court to the money laundering guidelines, § 2S1.1, for defendant’s convictions for money laundering under 18 U.S.C. § 1956, and to the fraud guidelines, § 2F1.1, for his convictions for wire fraud under 18 U.S.C. § 1343. The district court properly grouped the money laundering and fraud counts together under § 3D1.2(d), and applied the higher offense level for money laundering under § 3D1.3(b). At the time of defendant’s sentencing, the law in this circuit was that fraud and money laundering offenses could be grouped together when they were “closely related.” Amendment 634, which completely changed the way the offense level for money laundering is calculated, did not become effective until November 1, 2001, two days after sentencing. Since it did not apply retroactively, defendant could not benefit from it. U.S. v. Caplinger, 339 F.3d 226 (4th Cir. 2003).
4th Circuit holds that fraud and money laundering were properly grouped together. (470) Defendants planned and perpetrated an elaborate fraud scheme through which they improperly obtained tens of thousands of dollars from North Carolina’s Medicaid program. They contended that the sentencing court erroneously grouped their fraud and money laundering convictions, claiming that the conduct was not so closely related as to warrant grouping. The Fourth Circuit disagreed. Defendants were found to have engaged in both promotion and concealment money laundering, . By laundering the money, defendants were able to give an aura of legitimacy to their criminal endeavor and enable their scheme to continue. The money laundering and fraud were not only closely related, they were inextricably intertwined. In every aspect of the fraud, defendants’ goal was the same: the improper extraction of monies from Medicaid. Their money laundering activities were essential to achieving that goal, and their money laundering and fraud activities were part of a continuous common scheme to defraud Medicaid. Thus, the fraud and money laundering offenses were “closely related” and were properly grouped together. U.S. v. Bolden, 325 F.3d 471 (4th Cir. 2003).
4th Circuit holds that grouping does not preclude stacking sentences to avoid Apprendi problem. (470) Under Apprendi v. New Jersey, 530 U.S. 466 (2000), the maximum sentence available for defendant’s drug conspiracy conviction was 240 months. Consequently, the district court erred in imposing a 360-month term. However, the error would be harmless if the court would have been required to impose consecutive terms of imprisonment in order to achieve the 360-month sentence called for by the guidelines. Defendant’s offenses were grouped and such grouping was required by the guidelines. The Fourth Circuit held that grouping does not preclude the imposition of consecutive sentences under § 5G1.2. Grouping and stacking are separate concepts relevant in different stages of the sentencing process. They are not mutually exclusive. The only language that even suggests a prohibition against stacked sentences for grouped offenses appears in the introduction to the grouping rules, which states that “counts that are grouped together are treated as constituting a single offense for purposes of the guidelines.” U.S.S.G. Ch. 3 pt. D, intro comment. It was clear from this context, however, that this language does not control the choice between concurrent and consecutive sentences. The grouping rules apply only to offense level computations, not to other components of the sentencing process. U.S. v. Chase, 296 F.3d 247 (4th Cir. 2002).
4th Circuit finds no “plain” Apprendi error where 240-month sentence could have been achieved by consecutive sentences. (470) Defendant Simms was convicted of six counts of possession with intent to distribute marijuana. The district court held him accountable at sentencing for between 1000 and 3000 kilograms of marijuana, and sentenced him to 240 months. The Fourth Circuit assumed that the statutory maximum for each count was 60 months, but declined to notice any Apprendi error, because under § 5G1.2(d), the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment. Thus, the district court would have been obliged to impose consecutive sentences on the six counts until it reached the 240 month sentence that was actually imposed. U.S. v. Stewart, 256 F.3d 231 (4th Cir. 2001).
4th Circuit holds that money laundering and drugs counts should have been grouped together. (470) Defendant was convicted of drug and money laundering conspiracy charges. The district court grouped the counts separately because it found that each of the conspiracies harmed a distinct societal interest and did not involve “the same victim” as required for grouping under § 3D1.2(b). The court never discussed § 3D1.2(c), which requires grouping when “one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.” In calculating defendant’s offense level for the money laundering conspiracy, the district court applied a three-level enhancement because defendant “knew or believed that the funds were the proceeds of an unlawful activity involving the … distribution of narcotics or other controlled substances.” § 2S1.1(b)(1). Because of this enhancement, the Fourth Circuit held that the district court should have grouped the drug and money laundering counts together under § 3D1.2(c). See also U.S. v. Rice, 185 F.3d 326 (5th Cir. 1999). Judge Wilkinson dissented, arguing that subsection (c) did not apply to defendant because the specific offense characteristic at issue does not punish the actual distribution of drugs, but the knowledge that the laundered funds were drug proceeds. The majority found that approach required courts to “split hairs,” and would never permit a drug offense to be grouped with the money laundering offense. U.S. v. Bartley, 230 F.3d 667 (4th Cir. 2000).
4th Circuit rules leadership enhancement properly applied after grouping. (470) Defendant was convicted of conducting an illegal gambling business, money laundering, and income tax charges. The district court grouped all of the counts under § 3D1.2. Defendant’s sentence was determined with reference to the highest offense level, which was for money laundering. To this adjusted offense level, the court then applied a § 3B1.1(a) leadership enhancement. Defendant claimed that the guidelines required the application of the role adjustment to individual offenses before grouping. In addition, he claimed that an adjustment to the money laundering sentence based on his leadership role in the gambling offenses was improper because the latter was not relevant to the former. The Fourth Circuit held under circuit law, a role in the offense adjustment is applied after related offenses are grouped. Since defendant did not challenge the grouping of his offenses, the role adjustment was properly applied after grouping. Moreover, defendant’s leadership in the gambling operation was relevant conduct to the money laundering. Without the illegal gambling, there would have been no ill-gotten gains to launder. The gambling business was relevant conduct under § 1B1.3(a)(2) because the money laundering counts themselves were grouped based on the amount of money laundered under § 3D1.2(d). U.S. v. Nicolaou, 180 F.3d 565 (4th Cir. 1999).
4th Circuit refuses to group attempted espionage and conspiracy to commit espionage. (470) Defendant, an FBI agent, turned over confidential documents and information to the Soviet Union and later Russia. The Fourth Circuit upheld the district court’s decision not to group his attempted espionage and conspiracy to commit espionage convictions for sentencing purposes. Note 4 to § 3D1.2(b) says that counts that are part of a single course of conduct with a single criminal objective and one composite harm to the same victim are to be grouped together. In the present case, the district court properly found that the counts of conviction did not constitute a single course of conduct with a single objective. The counts depended upon two separate time periods, involving the supplying of information to two distinct sets of people in two separate locations, and resulted in the passage of an entirely different category of sensitive materials involving distinct harms. Defendant’s actions did not have a common criminal objective. Although defendant intended to hand over as much sensitive information as he could, each act of espionage was unrelated to and independent of every other act of espionage. U.S. v. Pitts, 176 F.3d 239 (4th Cir. 1999).
4th Circuit affirms separate grouping of firearms offenses. (470) Defendant pled guilty to 22 different firearms offenses in connection with his possession of weapons in three different states over a period of several years. The 4th Circuit upheld the district court’s decision to group the offenses into three different groups under guideline § 3D1.2. Under the 1987 version of the guidelines, the firearms offenses are not offenses for which the guidelines either require or prohibit grouping. The district court could properly conclude that the events involved in defendant’s offenses constituted three independent courses of criminal conduct. Defendant had three separate plans to supply himself with an arsenal, each plan arising after a seizure of his supply of weapons required him to replenish his gun supply. The passage of time between each group of offenses supported the district court’s determination. U.S. v. Wessells, 936 F.2d 165 (4th Cir. 1991).
4th Circuit groups all counts arising out of same assault. (470) Defendant was convicted of three different offenses arising out of his assault on a corrections officer. The district court found that defendant’s counsel had withdrawn his claim that Counts I and II should be grouped, and accordingly did not group any of the offenses. The government acknowledged that it was error not to group Counts I and II, and did not argue that the issue was not properly reserved for appeal. The 4th Circuit found that all counts against defendant should have been grouped for sentencing under guideline § 3D1.2(a). They all involved the same act or transaction, represented essentially the same injury, were part of the same criminal episode, and involved the same victim. U.S. v. Young, 916 F.2d 147 (4th Cir. 1990).
4th Circuit finds that gambling and money laundering are not closely related offenses. (470) Defendant used the proceeds of an illegal gambling operation to purchase a house. Two years later, he sold the house and fled the country with the proceeds. Defendant challenged the district court’s failure to group his money laundering conviction with his gambling conviction as closely-related counts. The 4th Circuit acknowledged that acts of money laundering which are closely integrated with an illegal gambling operation might, under certain circumstances, qualify as closely-related counts. However, in this case, but for the fact that the home defendant sold was originally purchased with gambling proceeds, the money-laundering offense was completely unrelated to the gambling operation. Therefore, the two counts were not closely-related. U.S. v. Porter, 909 F.2d 789 (4th Cir. 1990).
4th Circuit upholds district court’s refusal to “group” sex offenses under multiple count section. (470) The multiple count section of the guidelines, 3D1.2(c), provides that offenses should be “grouped” if they are “alternative means of punishing essentially the same harm.” Here the defendant was convicted of transporting his step-daughter across state lines for sexual purposes, and with transporting child pornography. The 4th Circuit agreed that the step-daughter was a victim of both offenses but disagreed that both offenses had the same “primary” victim within the meaning of § 3D1.2. The primary victim of the child pornography events under 18 U.S.C. § 2252(a) is society in general, with the minor a secondary victim. Thus the district court correctly determined the two offenses should not be grouped under § 3D1.2(a). U.S. v. Toler, 901 F.2d 399 (4th Cir. 1990).
5th Circuit reverses grouping of unlawful reentry offense and firearm offense. (470) Defendant pled guilty to being unlawfully present in United States after deportation, and being unlawfully present in United States and in possession of firearm. He argued on appeal the district court erred by not grouping the offenses together under § 3D1.2, contending that the offenses (a) involved substantially the same harm, and (b) occurred as part of the same act or transaction. The Fifth Circuit disagreed, and upheld the separate grouping. First, the panel agreed with every other circuit that has addressed the issue that an unlawful reentry offense and a § 992(g) offense should not be grouped because they harm different societal interests. The criminalization of illegal re-entry “enforce[s] immigration laws,” while the criminalization of firearm possession by an alien unlawfully in the United States, “protect[s] society from those deemed unqualified to possess firearms.” Regarding “the same act or transaction,” defendant overlooked § 3D1.2(a)’s same victim requirement. Where there are no identifiable victims and the victim is “society at large,” the victim for the purposes of § 3D1.2(a) is “the societal interest that is harmed.” Because unlawful reentry and § 992(g)(5) offenses protect different societal interests, they had different “victims” for the purposes of § 3D1.2(a). U.S. v. McLauling, 753 F.3d 557 (5th Cir. 2014).
5th Circuit holds that grouping error was not plain where it did not affect defendant’s offense level. (470) Defendant was convicted of child sex trafficking and harboring illegal aliens. He contended for the first time on appeal that the district court should not have grouped Counts 1–3 (sex trafficking of minors) separately from Counts 4–10 (harboring of minor aliens) for the purposes of a multi-count adjustment under § 3D1.2. The Fifth Circuit concluded that the separate grouping of the ten counts, while in error, was not reversible plain error. The counts should have been grouped under § 3D1.2(c), which applies when one count embodies conduct that is treated as a specific offense characteristic of the guideline for the other count. Here, the PSR used facts that formed the basis of the child-sex-trafficking counts as a specific offense characteristic to apply a six-point enhancement under § 2L1.1(b)(8)(B) for the alien-harboring counts. However, the error did not affect defendant’s substantial rights. The sex-trafficking counts drove the sentencing calculations because they had a higher adjusted offense level. This adjusted level would have been the same even if the district court had placed all ten counts into a single group. U.S. v. Garcia-Gonzalez, 714 F.3d 306 (5th Cir. 2013).
5th Circuit reverses one-level multi-count sentencing increase. (470) Defendant argued for the first time on appeal, and the government conceded, that the district court erroneously applied the one-level multi-count adjustment in § 3D1.4. The Fifth Circuit found that the error warranted reversal under the plain error. In U.S. v. Mudekunye, 646 F.3d 281 (5th Cir. 2011), the court held that where the correct and incorrect guidelines ranges overlap and the court imposes a sentence significantly above the top of the correct guidelines range, the sentence affects the defendant’s substantial rights “where it is not apparent from the record that [the defendant] would have received an above-Guidelines sentence.” Here, the error increased defendant’s guideline range from 87-108 months to 97-121 months, and the court sentenced him to 120 months, 12 months higher than the top of the correct guidelines range. There was no evidence that the district court would have imposed a 120-month sentence if it had used the correct 87-108-month guideline range. U.S. v. Hernandez, 690 F.3d 613 (5th Cir. 2012).
5th Circuit upholds separate grouping of 13 phoned bomb threats to army depot. (470) Defendant made numerous threatening phone calls to the army depot where his ex-girlfriend worked. He was convicted of 13 counts of using a cell phone to make a bomb threat. He argued that the district court should have grouped all thirteen counts into a single group under § 3D1.2, contending that the threats were against the army depot as a whole rather than against the separate individuals who answered the phone. Moreover, his ex-girlfriend was the primary intended victim. The Eighth Circuit upheld the separate grouping of each count. Defendant may have initiated the phone calls to the army depot because of his ex-girlfriend’s employment there, but that did not change the fact that defendant threatened several different people when his attempts to reach her were blocked. Defendant directly threatened the individual call recipients, some expressly by name. Defendant also called different buildings and threatened different locations at the army depot. His conduct resulted in the evacuation of thousands of people from multiple buildings, the disruption of ordinary business at several locations, and the mobilization of security forces to deal with the threats. U.S. v. Simmons, 649 F.3d 301 (5th Cir. 2011).
5th Circuit holds that grouping error did not affect substantial rights. (470) Defendant was convicted of possession of child pornography and production of child pornography. The counts were grouped under § 3D1.1(a)(1)-(3). The court found that the production count had the highest base offense level, and then applied a four-level enhancement under § 2G2.1(b)(4) because the possession offense involved sadistic or masochistic material. Defendant argued for the first time on appeal that conduct underlying one count cannot enhance another count grouped under § 3D1.2(c), and the increase could apply to his sentence only if he had produced sadistic or masochistic images. The Fifth Circuit agreed that the court erred in calculating his sentence. The court should have calculated one total offense level for possession and a separate one for production. However, the error did not affect defendant’s substantial rights. The court found that defendant was “one of the most vicious predators on children” it had ever encountered, and clearly intended to impose the maximum sentence to ensure that defendant “would never be free in society again.” U.S. v. Dickson, 632 F.3d 186 (5th Cir. 2011).
5th Circuit “groups” counterfeiting conviction separately from using altered military discharge certificate. (470) In 2007, defendant applied for a job using an altered copy of his certificate of discharge from the Army. He was fired in June 2008 when the employer discovered his fraud. In August 2008, defendant attempted to purchase a dirt bike using counterfeit $100 bills. He pled guilty to one count of passing counterfeit notes, and one count of using falsely altered military discharge papers. He argued that his offenses should have been grouped together under § 3D1.2(d), which allows for grouping of offenses that involve substantially the same harm. The Fifth Circuit found no error in the court’s decision not to group the offenses. Although the two offenses are both listed as offenses “to be grouped,” this is not a per se rule. The crimes involved different schemes, different objectives, and different victims, and they took place at different times. Moreover, even if they were of the same general type, neither offense level was determined “largely on the basis of the total amount of harm or loss.” § 3D1.2(d). U.S. v. Goncalves, 613 F.3d 601 (5th Cir. 2010).
5th Circuit affirms grouping fraud and money laundering counts. (470) Defendant was convicted of fraud and money laundering charges based on her involvement in a mortgage fraud operation. She argued that the court improperly sentenced her under § 2S1.1 (money laundering) instead of § 2B1.1 (fraud and deceit). The Fifth Circuit found that the court correctly followed § 3D1.2, which requires counts involving substantially the same harm to be grouped together into a single group. The court was required to “group” together the fraud and money laundering offense because those crimes involve the same victim and involved multiple acts that were linked by a common illegal objective or part of a common scheme. Once grouped, the district court properly determined that money laundering produced the higher offense level and imposed sentence under that guideline, § 2S1.1. U.S. v. Stalnaker, 571 F.3d 428 (5th Cir. 2009).
5th Circuit rejects departure where pecuniary loss from each fraud was included in total loss. (470) The district court departed upward under Note 4 to § 3D1.3, which explains that where offenses are grouped together, sometimes one offense goes completely unconsidered for sentencing purposes. The district court found that defendant’s four separate fraud schemes were not accounted for because adding the value of all four schemes together resulted in the same penalty as if defendant had just committed one fraud. The Fifth Circuit found Note 4 inapplicable, because the pecuniary loss from each of the four frauds was considered in arriving at the amount of loss under § 2F1.1. The fact that one scheme was several magnitudes larger than the other schemes did not change the fact that all the smaller scheme were included in arriving at the offense level. As all four schemes were included in the guideline amount of total loss, it was an abuse of discretion to depart based on Note 4. U.S. v. Messervey, 317 F.3d 457 (5th Cir. 2002).
5th Circuit says factually unrelated frauds should be grouped under § 3D1.2(d). (470) Defendant pled guilty to several wire fraud counts stemming from a fraudulent loan scheme that ran from December 1997 to August 1998. He also pled guilty to a single count of bank fraud stemming from a check kiting scheme that ran from December 1999 to January 2000. The district court refused to group the convictions, and the Fifth Circuit reversed, holding that § 3D1.2(d) allows for the grouping of factually unrelated counts. Subsection (d) provides for grouping if each offense shares a particular attribute under the guidelines, such as where the offense level is determined largely on the basis of some unit of measure, like the value of the property stolen. To keep subsection (d) from being totally subsumed by subsections (a) and (b) (requiring grouping where the counts had the same victim and were part of the same act or transaction) and the second part of (d) (requiring grouping for ongoing or continuous behavior), it must address offenses in which (1) the victims are different, and (2) the involved behavior is unconnected. In other words, subsection (d) covers discrete, unrelated offenses involving measurable harm. The district court erred in not grouping the wire fraud and the bank fraud counts. Although this gave defendant “a windfall through the mere fortuity of having been sentenced in a single proceeding,” the court has the authority to depart upward. U.S. v. Tolbert, 306 F.3d 244 (5th Cir. 2002).
5th Circuit holds that sexual exploitation of child count should have been grouped with pornography counts. (470) The district court grouped defendant’s three child pornography counts together, while his conviction for the sexual exploitation of a child was grouped separately. In the sentence calculation for the group of offenses, defendant received a five-level enhancement for “engag[ing] in a pattern of activity involving … sexual exploitation of a minor.” The Fifth Circuit found that such double counting was contrary to § 3D1.2(c), which provides that counts of conviction should be grouped “[w]hen one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.” The double counting increased defendant’s sentence. Had the counts of conviction been properly grouped together by the district court, a two-level increase under § 3D1.4 would not have applied. Because the district court’s improper grouping affected defendant’s substantial rights, he was entitled to resentencing. U.S. v. Runyan, 290 F.3d 223 (5th Cir. 2002).
5th Circuit refuses to group drug counts involving deaths of different victims. (470) Defendant argued that all of his violations of the drug statutes should have been grouped together under § 3D1.2(d), eliminating the basis for a five-level increase under § 3D1.4, because they involved “substantially the same harm” within the meaning of § 3D1.2. The Fifth Circuit held that § 3D1.2(d) did not apply because the offense guideline, § 2D1.1(a)(2), was not written to cover such behavior, i.e. multiple counts alleging that the deaths of distinct victims resulted from the use of the drugs charged. Counts involving different victims should not be grouped. U.S. v. Solis, 299 F.3d 420 (5th Cir. 2002).
5th Circuit holds that drug and money laundering counts should have been grouped together. (470) Guideline § 3D1.2(c) provides that multiple counts should be grouped together if “one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.” The Fifth Circuit held that defendant’s money laundering and drug convictions should have been grouped together for sentencing purposes under § 3D1.2(c), since the drug offenses would otherwise be counted both in the drug count and as a specific offense characteristic of the money laundering scheme. Just as in U.S. v. Rice, 185 F.3d 326 (5th Cir. 1999), defendant received a three-point increase to his money laundering offense level because he knew that the funds were the proceeds of an unlawful activity involving the distribution of drugs. This was the exact conduct embodied by the drug trafficking count. U.S. v. Salter, 241 F.3d 392 (5th Cir. 2001).
5th Circuit groups money laundering and fraud offenses linked by common objective. (470) Defendant was involved in a conspiracy to defraud banks by depositing counterfeit checks into several different bank accounts. He argued that the court erred in failing to apply the more lenient fraud guidelines instead of the money laundering guidelines, arguing that the money laundering guidelines are intended to apply to large-scale drug and organized crime enterprises. The Fifth Circuit ruled that the district court was required to group the fraud and money laundering offenses because those crimes involved multiple offenses that were linked by a common illegal objective. The district court properly imposed a sentence under the money laundering guideline, which produced the higher offense level. Although a court is authorized to depart downward if the offense falls outside the heartland of the conduct for which a guideline was intended, a decision not to depart is not subject to appellate review. U.S. v. Dadi, 235 F.3d 945 (5th Cir. 2000).
5th Circuit holds that child pornography counts should be grouped separately. (470) Defendant pled guilty to three counts of distributing or receiving child pornography. He argued that the counts should have been grouped together under § 3D1.2(b), which provides that a court must group all counts that involved the same victim and the same act or transaction. The Fifth Circuit held that under U.S. v. Norris, 159 F.3d 926 (5th Cir. 1998), the victim of child pornography is the individual child rather than society at large. Thus, § 3D1.2(b) was inapplicable. U.S. v. Lyckman, 235 F.3d 234 (5th Cir. 2000).
5th Circuit holds that court should have grouped drug and money laundering counts. (470) Section 3D1.2(c) requires counts be grouped together when one count embodies conduct that is treated as a specific offense characteristic to the guideline for another count. Defendant argued the grouping was required because his money laundering sentence was enhanced under § 2S1.1(b)(1) based on his knowledge that the money he laundered was drug proceeds. The Fifth Circuit agreed that under U.S. v. Haltom, 113 F.3d 43 (5th Cir. 1997), the drug and money laundering counts should have been grouped. Haltom reversed the district court’s refusal to group together one count of mail fraud with four counts of tax evasion, and held that subsection (c) requires grouping where one of the counts embodies conduct that was treated as a specific offense characteristic in the guideline applicable to another of the counts. In the present case, defendant’s drug offenses were counted twice toward his sentence, once as the basis for his conviction on the drug counts, and again as a specific offense characteristic of the money laundering counts. The purpose of subsection (c) is to prevent this type of double counting of offense behavior. U.S. v. Rice, 185 F.3d 326 (5th Cir. 1999).
5th Circuit holds that marshals were separate victims of defendant’s attempt to resist arrest. (470) Defendant pled guilty to two counts of resisting arrest, in violation of 18 U.S.C. § 111, based on his scuffle with two deputy U.S. Marshals who attempted to arrest him. The Fifth Circuit held that each marshal was a separate victim, so the offenses could not be grouped under § 3D1.2. Section 111(a)(1), prohibiting assault against federal officers, was enacted to protect both federal officers and federal functions. Any federal officer whose efforts to arrest a defendant are resisted in violation of § 111 is a victim. The officers were not indirect or secondary victims. Both deputy marshals were affected in some measure by the protracted struggle to subdue and arrest defendant. U.S. v. Clark, 178 F.3d 290 (5th Cir. 1999).
5th Circuit upholds sentence based on grouped money laundering and fraud counts. (470) Defendant was employed as a gas marketer for an energy company. Rather than selling the company’s gas directly to end-users, defendant sold gas to a shell corporation. The shell corporation then sold the gas to end-users for a profit. Defendant and another man split the profits from the shell corporation. He was convicted of money laundering and fraud charges. He argued that because of the substantial disparity between guideline ranges, the district court erred in sentencing him under the money laundering guideline instead of the fraud guideline. The Fifth Circuit ruled that the district court properly used the money laundering guideline as required by the grouping rules. The district court was required to group together defendant’s fraud and money laundering offenses because the crimes involved the same victim and involved multiple acts that were linked by a common illegal objective or were part of a common scheme. Once grouped, the district court properly determined that money laundering produced the higher offense level and imposed sentence under that guideline. U.S. v. Powers, 168 F.3d 741 (5th Cir. 1999).
5th Circuit says defendant properly held accountable for all funds laundered by co-conspirators. (470) Defendant participated in a fraudulent investment scheme that raised about $6.4 million, resulting in a net loss to investors of about $6.1 million. Defendant argued that the district court erred in grouping together his fraud and money laundering offenses in order to consider the aggregated $6.1 million as the harm of a single offense. The Fifth Circuit found that defendant misinterpreted the district court’s actions. The court did not group his offense. The court held defendant responsible for the entire $6.1 million because this was the total foreseeable amount laundered by his co-conspirators. Virtually all of the $6.1 million acquired by the scheme during defendant’s involvement was laundered. This laundering was reasonably foreseeable to defendant, who helped devise a shell company to hide the fraudulently obtained funds. Moreover, the district court could have properly grouped the money laundering and fraud counts together. Grouping is proper where, as here, the money laundered was reinvested into and perpetrated the fraud scheme. U.S. v. Landerman, 167 F.3d 895 (5th Cir. 1999).
5th Circuit holds that applying revised guidelines to grouped offenses does not violate ex post facto clause. (470) Defendant committed mail fraud in 1988 and a counterfeiting offense in 1990. The court calculated defendant’s sentence under the 1993 guidelines, which were essentially the same as the 1990 guidelines. However, the 1993 guidelines included for the first time the codification of the “one book rule” in § 1B1.11. One provision of the one book rule says that when a defendant is convicted of multiple offenses, some occurring before and some occurring after a revision of the guidelines, the revised guidelines are to be applied to both offenses. The Fifth Circuit held that the use of the 1993 guidelines did not violate the ex post facto clause. Where a sentencing court groups offenses committed before a change in the guidelines with offenses committed after the change, and then applies the amended guideline, the ex post facto clause is not implicated. A majority of circuits have concluded that a defendant has notice that the version of the sentencing guidelines in effect at the time he committed the last in a series of grouped offenses will apply to the entire group. The use of the one book rule in the 1993 guidelines did not violate the ex post facto clause. Although § 1B1.11(b)(3) was not codified until 1993, the provision was a clarifying amendment that simply reflected the existing practices of courts. U.S. v. Kimler, 167 F.3d 889 (5th Cir. 1999).
5th Circuit holds that pictured children were victims of child pornography. (470) Police found numerous pornographic photos of children on the hard drive of defendant’s computer. He pled guilty to ten counts of receiving child pornography and one count of possessing child pornography. He argued that the counts should have been grouped together under § 3D1.2, which provides that all counts involving substantially the same harm shall be grouped together. The commentary notes that in cases where there are no identifiable victims, the “victim” is the societal interest that is harmed. The Fifth Circuit held that the victims of the crime of receiving child pornography are the children depicted in the pornography. Therefore, the counts were properly grouped separately. The consumer of child pornography victimizes the children depicted in those materials by enabling and supporting the continued production of child pornography, which entails continuous direct abuse and victimization of child subjects. U.S. v. Norris, 159 F.3d 926 (5th Cir. 1998).
5th Circuit rejects guideline for consensual sexual abuse of ward where defendant stipulated force was used. (470) Defendant, the warden of a jail, raped an inmate and then lied to investigators about the incident. He pled guilty to violating the inmate’s civil rights and making a false official statement. Although the PSR recommended sentencing under § 2A3.1 (criminal sexual abuse), the district court sentenced defendant using § 2A3.3, which normally is applied to consensual criminal sexual abuse of a ward. The court thought that § 2A3.1 was unduly harsh because the civil rights count was only a misdemeanor that had a maximum penalty of one year and the other count was a collateral offense. The Fifth Circuit ruled that the court should have used § 2A3.1 rather than § 2A3.3. The crime’s classification as a misdemeanor with a one-year sentence was irrelevant. When a defendant is sentenced on multiple counts under a single indictment, the court uses the combined offense level. The total punishment can be more than the maximum statutory penalty for any particular offense. Looking to the underlying offense to which the defendant stipulated, defendant’s offense was analogous to a violation of § 2241, the forcible rape statute, because he used actual force against his victim. He also caused the victim to engage in a sexual act by placing her in fear within the meaning of § 2242 because of his power over her. U.S. v. Lucas, 157 F.3d 998 (5th Cir. 1998).
5th Circuit applies reckless endangerment increase to passenger in fleeing vehicle. (470) Defendant was the passenger in a car that led deputies on a high-speed chase that ended when the car clipped and landed on the hood of the deputies’ patrol car. During the chase, defendant threw plastic bags containing crack cocaine out the window. The Fifth Circuit affirmed a § 3C1.2 reckless endangerment increase, even though defendant was not the driver of the fleeing vehicle. The sheriff’s investigator’s notes revealed that defendant informed the driver that he had drugs on him, and that the driver needed to do something or they were going to jail. The court properly relied on the investigator’s notes. Defendant was aware of the probation office’s reliance on the notes, yet did not present any evidence that would cast doubt on the truthfulness or accuracy of his interview. U.S. v. Lugman, 130 F.3d 113 (5th Cir. 1997).
5th Circuit applies leadership enhancement to two groups of offenses. (470) Defendant was a member of a street gang that conspired to distribute drugs and committed violent crimes in aid of racketeering. Defendant argued that the district court improperly applied a § 3B1.1(a) leadership enhancement to both his drug offenses and his racketeering offenses. The Fifth Circuit upheld the application of the leadership enhancement to both groups of offenses. Unlike the defendant in U.S. v. Kleinebreil, 966 F.2d 945 (5th Cir. 1992), defendant was a leader in both the racketeering conspiracy and the drug conspiracy, two distinct conspiracies to violate distinct criminal laws. U.S. v. Wilson, 116 F.3d 1066 (5th Cir. 1997), vacated in part on other grounds sub nom. U.s. v. Brown, 161 F.3d 256 (5th Cir. 1998) (en banc).
5th Circuit says mail fraud and tax evasion should have been grouped together. (470) Defendant, an account executive, misappropriated money from clients and then failed to report the illicit income on his tax returns. The Fifth Circuit ruled that the district court erred in refusing to group the mail fraud and tax evasion charges together. The conduct underlying defendant’s mail fraud conviction resulted in an enhanced offense level for tax evasion, and therefore the counts should have been grouped to avoid double counting. Defendant’s offense level for tax evasion was increased by 2 because his unreported income was derived from criminal activity, i.e. his mail fraud profits. Therefore, unlike U.S. v. Astorri, 923 F.2d 1052 (3d Cir. 1991), the mail fraud count embodied conduct that was treated as a specific offense characteristic of the tax evasion counts. U.S. v. Haltom, 113 F.3d 43 (5th Cir. 1997).
5th Circuit applies money laundering guideline to multiple-object conspiracy. (470) Defendant pled guilty to conspiracy to commit fraud, money laundering, and mail fraud. The district court refused to apply the money laundering guideline, § 2S1.1, because defendant had not been charged with a substantive count of money laundering. The Fifth Circuit held that the court should have applied the money laundering guideline. Section 1B1.2(d) requires a multiple-object conspiracy to be treated as if the defendant were convicted of a separate count for each object of the conspiracy. Note 5 provides that where, as here, the plea does not establish which offense was the object of the conspiracy, the court should apply the guideline for an object offense only if it would have convicted defendant of conspiring to commit that object offense. However, this analysis is not necessary if the object offenses specified in the conspiracy count would be “grouped” under § 3D1.2(d). The conspiracy to commit mail fraud, the use of a fictitious name and money laundering are to be grouped together because their offense levels are determined largely on the total amount of harm or loss. Section 3D1.3 directs the court to apply the highest offense level of the counts in the group, in this case, money laundering. Therefore, the district court erred in using the fraud guideline. U.S. v. Coscarelli, 105 F.3d 984 (5th Cir. 1997), reinstated on rehearing en banc, 149 F.3d 342 (5th Cir. 1998).
5th Circuit upholds separate grouping of toxic waste discharges at two different locations. (470) Defendant abandoned one business and left the hazardous wastes at the abandoned facility. He also improperly disposed of hazardous waste from another business located at another site. The Fifth Circuit upheld the separate grouping of the two counts stemming from each improper disposal. Contrary to defendant’s contention, the two counts did not involve the same victim. When defendant abandoned the hazardous waste at the first site, the victims included the landlord, surrounding landowners and their families, and the EPA. The conduct addressed in the other count involved a different facility at a later time with different victims. Although defendant properly received § 2Q1.2(b)(1)(A) enhancements for ongoing or continuous discharge, this did not trigger § 3D1.2(d), which provides for grouping for continuous behavior. Note 6 to § 3D1.2 provides for grouping where the defendant is convicted of three counts of discharging toxic substances from a single facility. By implication, counts charging defendant with discharging toxic substances from different facilities at different times would not be grouped together. U.S. v. Gist, 101 F.3d 32 (5th Cir. 1996).
5th Circuit rejects use of murder guideline even though object of mail fraud was murder. (470) Defendant pled guilty to conspiracy to commit mail fraud and aiding and abetting mail fraud. The district court grouped the counts, and under § 3D1.2 and 3D1.3 purported to choose the offense level for the most serious offense. The court chose the offense level for murder because, relying on note 8 to § 3D1.2, and § 1B1.2(d) and note 5 to § 1B1.2, it concluded that murder was an object of the conspiracy. The Fifth Circuit held that conspiracy to commit murder could not be used to calculate the offense level because defendant was not charged with and did not plead guilty to conspiracy to commit murder. Both note 8 to § 3D1.2 and § 1B1.2(d) apply when a defendant is convicted of conspiring to commit more than one offense. Defendant was convicted of conspiring to commit only one offense, mail fraud. Note 5 to § 1B1.2 applies to cases in which the plea does not establish which offense was the object of the conspiracy. U.S. v. Aderholt, 87 F.3d 740 (5th Cir. 1996).
5th Circuit refuses to group failure to appear count despite § 2J1.6 commentary. (470) Defendant pled guilty to various counts including failure to appear. The district court grouped all the counts other than the failure to appear count. Note 3 to § 2J1.6 states that the failure to appear count and the counts for the underlying offense are grouped together under § 3D1.2(d). However, 18 U.S.C. § 3146(b)(2) requires the term of imprisonment imposed under it to be consecutive to the sentence for any other offense. The commentary to § 2J1.6 tries to resolves this conflict by providing that the court, after grouping the failure to appear counts with the underlying counts, should earmark a portion of the total punishment as a consecutive sentence for the failure to appear count. The Fifth Circuit upheld the court’s refusal to group the failure to appear count with the underlying counts, finding § 2J1.6’s commentary was inconsistent with § 3146(b)(2). The guideline treatment of § 3146(b)(2) would defeat the statutory intent that a failure to appear offense be considered separate and distinct from the underlying offenses, warranting a separate and distinct penalty. U.S. v. Packer, 70 F.3d 357 (5th Cir. 1995).
5th Circuit separately groups charges related to girlfriend’s flight from justice. (470) Defendant helped his girlfriend flee and avoid trial by obtaining for her a false birth certificate used in obtaining a false driver’s license, and a passport in an assumed name. He funded their flight by engaging in several financial transactions. They were eventually apprehended. The district court divided his convictions into several groups: (1) social security and mail fraud; (2) passport fraud; (3) concealing a person from arrest; and (4) structuring financial transactions. The Fifth Circuit approved the separate grouping, agreeing that separate interests were invaded by the passport fraud, the structuring offense, concealing a person from arrest, and the social security and mail frauds. Note 2 to § 3D1.2(b) suggests that for victimless crimes the grouping decision must be based primarily on the nature of the interest invaded by each offense. U.S. v. Packer, 70 F.3d 357 (5th Cir. 1995).
5th Circuit groups money laundering and fraud where laundering facilitated fraud. (470) Defendant ran a scam in which callers telephoned victims to inform them they had won a prize. To obtain the prize, worth $15.00, callers were required to pay $395.50. Defendant argued that the court erred in sentencing him under the money laundering guidelines instead of the fraud guidelines. The Fifth Circuit affirmed, since the fraud guideline could only be used through the use a downward departure, and a decision not to depart downward is not reviewable. Because of the guideline’s grouping rules, where money laundering and fraud offenses can be properly grouped, the imposition of the higher offense level attached to money laundering is required. The money laundering and fraud counts were properly grouped together under § 3D1.2(d) because they involved the same victim and acts that were part of a common scheme. Cases cited by defendant holding that money laundering and fraud have different victims were distinguishable. In none of those cases did the money laundering activities of the defendants perpetuate the underlying crimes. Here, defendant’s money laundering activity, regardless of its limited extent, advanced the fraud scheme that victimized nearly 500 people. The victims of the fraud were also victims of the money laundering activities. U.S. v. Leonard, 61 F.3d 1181 (5th Cir. 1995).
5th Circuit finds applying wrong offense level and grouping rule was plain error. (470) Defendant pled guilty to money laundering in violation of 18 U.S.C. § 1956(a)(1)(B) as well as drug charges. He argued for the first time on appeal, that the court assigned the wrong offense level under the money laundering guideline and misapplied § 3D1.4 in determining his combined offense level. The Fifth Circuit held that applying the wrong offense level and misapplying the grouping rules was plain error. Defendant should have received a base offense level of 20, rather than 23, for his money laundering violation. In addition, the court should have disregarded the other two counts in determining the combined offense level since they were nine or more levels less serious than the money laundering count. Absent these two errors, defendant’s total offense level would have been 27 rather than 31, which substantially affected his sentence. U.S. v. Franks, 46 F.3d 402 (5th Cir. 1995).
5th Circuit reverses supervisorial enhancement based on related conduct. (470) Defendant was convicted of two marijuana counts, which were grouped together, and an assault count, which was grouped separately. He received a supervisorial enhancement for both the marijuana group and the assault group based upon his supervisorial role in the marijuana offense. The 5th Circuit reversed the enhancement for the assault group. The guidelines do not permit characteristics of one count to be used to adjust the offense level for another count unless those counts are in the same group. U.S. v. Kleinebreil, 966 F.2d 945 (5th Cir. 1992).
5th Circuit reverses official victim enhancement for marijuana distribution offense. (470) When police attempted to enter his apartment to investigate drug charges, defendant shot a police officer. He was convicted of two marijuana counts, which were grouped together, and an assault count, which was grouped separately. The district court assessed an official victim enhancement under section 3A1.1 for both the marijuana group and the assault group. The 5th Circuit reversed the official victim enhancement for the marijuana group. The guidelines would allow an increase in the offense level for the marijuana group based on the official status of the assault victims only if the assault and marijuana counts comprised a single group. The counts could not properly be grouped together, and therefore the district court erred in applying the enhancement to the marijuana conviction. U.S. v. Kleinebreil, 966 F.2d 945 (5th Cir. 1992).
5th Circuit adjusts for acceptance of responsibility only after combined offense level is determined. (470) Defendant was convicted of two marijuana counts, which were grouped together, and an assault count, which was grouped separately. Defendant accepted responsibility for the two marijuana convictions, but refused to accept responsibility for the assault. Thus, the district court refused to reduce defendant’s combined offense level for acceptance of responsibility. Defendant contended that he should have received the reduction in the offense level for the marijuana counts before computing the combined offense level for both groups. The 5th Circuit rejected the argument. The Application Instructions in Chapter One, Part B, sections 1B1.1(a)-(i), listing the steps to be followed in applying the guidelines, provide that an adjustment for acceptance of responsibility, if appropriate, is to be applied after the offense level for groups of multiple counts and the resulting combined offense levels have been computed. U.S. v. Kleinebreil, 966 F.2d 945 (5th Cir. 1992).
5th Circuit rules that imposing concurrent sentences was a downward departure. (470) Defendant received a 240-month sentence for conspiracy to manufacture methamphetamine, and a concurrent 120-month sentence for being a felon in possession of a firearm. The 5th Circuit rejected defendant’s claim that his firearm sentence represented an upward departure. If he had been convicted of the firearm count alone, his sentence would have been 18 to 24 months. However, once the two counts were combined under the multiple count section, 3D1.1(a)(3), defendant had a guideline range of 360 months to life. Under section 5G1.2(d) the court would have had to impose the statutory maximum 240-month sentence for the drug count, and a consecutive 120 month sentence for the firearm count. By imposing concurrent sentences, the district court actually was departing downward, without stating any reasons on the record. However, since no complaint was made on appeal, the appellate court refused to address any possible error. U.S. v. Allison, 953 F.2d 870 (5th Cir. 1992), amended, 986 F.2d 896 (5th Cir. 1993).
5th Circuit upholds obstruction enhancement for defendant convicted of perjury and kidnapping. (470) Defendant was convicted of kidnapping and perjury. He contended that a two-level enhancement for obstruction of justice under section 3C1.1 was improper because his grouped base offense level of 30 already included his perjury offense. The 5th Circuit affirmed the enhancement, relying upon note 4 to section 3C1.1. It provides that where a defendant is convicted of both an obstruction offense and the underlying offense, the two counts are to be grouped under section 3D1.2(d). The offense level for that group is the offense level for the underlying offense increased by two for obstruction of justice, or the offense level of obstruction offense, whichever is greater. In this case, the offense level for the kidnapping was greater than the offense level for the perjury count, and therefore it was proper for the district court to add two points to the kidnapping offense level. U.S. v. Winn, 948 F.2d 145 (5th Cir. 1991).
5th Circuit refuses to group together offenses involving receipt of stolen vehicles, alteration of a VIN and obtaining money by false pretenses. (470) Defendant was convicted of four counts of receipt and possession of stolen vehicles, four counts of alteration or removal of VINs, one count of buying or selling vehicles with an altered VIN, and one count of obtaining money by false pretenses. The 5th Circuit held that it was error to group these all of these counts together. Since the counts involved different victims, they could only be grouped together under section 3D1.2(d). Section 3D1.2(d) allows grouping only if the offenses are of the “same general type.” Under this, defendant’s offenses could be grouped into three groups of closely related counts: one group involving receipt or possession of stolen vehicles, one group involving alteration of VINs, and one group involving the offense of obtaining money by false pretenses. Defendant’s offenses could not be combined further. U.S. v. Patterson, 962 F.2d 409 (5th Cir. 1992).
5th Circuit upholds separate grouping of drug offenses and money laundering. (470) Defendant contended that the district court improperly refused to group his drug offenses with his money laundering offense as closely related offenses. The 5th Circuit upheld the separate grouping, finding that distinct societal interests were invaded by defendant’s crimes. The record did not establish that defendant’s money laundering was a continuous and ongoing part of defendant’s drug-related offenses, as suggested by defendant. U.S. v. Gallo, 927 F.2d 815 (5th Cir. 1991).
5th Circuit reviews de novo decision not to group counts. (470) The district court grouped defendant’s two counts of auto theft separately for the purpose of determining defendant’s offense level. The 5th Circuit found that in a case such as this, where the underlying counts were specifically enumerated in guideline § 3D1.2(d) as offenses susceptible to grouping, it should apply a de novo standard of review to the district court’s decision not to group defendant’s counts. The two counts of auto theft to which defendant pled guilty involved two different cars, different owners and different events. Since the counts did not satisfy the primary requirement of § 3D1.2 that they involve “substantially the same harm,” the district court correctly refused to group the counts. U.S. v. Ballard, 919 F.2d 255 (5th Cir. 1990).
5th Circuit holds that the fact that defendant could have received a greater punishment had he been sentenced separately in each jurisdiction, did not justify upward departure. (470) The 5th Circuit held that the fact that defendant could have received a greater punishment had he been sentenced separately in each jurisdiction where he committed a bank robbery, could not provide a basis for departure. “Under § 3D1.4 the Commission has made its determination as to how to calculate the offense level when multiple offenses are being sentenced in a single proceeding.” “The policy rationale of § 3D1.4 is no less applicable because some of the crimes were committed in different places; its aggregation formula should govern the result here.” U.S. v. Miller, 903 F.2d 341 (5th Cir. 1990).
5th Circuit upholds district court’s refusal to aggregate prior robbery conviction with present robberies. (470) Defendant pled guilty and was sentenced for an Arizona bank robbery. At the time of his plea he confessed to having robbed seven other financial institutions. He then pled guilty to six of the other robberies, and argued at sentencing that the Arizona robbery should have been aggregated with the other six in calculating his base offense level under the guidelines. He argued that they were all “related cases under § 4A1.2(a)(2). The 5th Circuit rejected the argument however, noting that § 4A1.2 deals only with how to treat prior convictions. It “does not permit the aggregation of prior convictions with those convictions for which the defendant is presently being sentenced.” The court added that the multiple count section, 3D1.4, “does control how to aggregate the six crimes for which the court was sentencing [the defendant], the court properly awarded three criminal history points for the Arizona bank robbery under § 4A1.1(a). U.S. v. Miller, 903 F.2d 341 (5th Cir. 1990).
5th Circuit rules that whether two offenses are closely related so as to aggregate for sentencing purposes is subject to “due deference view.” (470) Defendant objected to the sentencing court’s refusal to aggregate the sale of a silencer and sale of a handgun together for sentencing purposes under § 3D1.2, on the grounds that the silencer was physically linked to the pistol. The sale of each was one count of a two count information. The 5th Circuit disagreed. This part legal, part factual determination is to be reviewed with due deference to the trial court’s findings. The refusal was proper given the Application Note 2 to that section, which provides that the interests implicated by the “separate” offenses will determine whether the offenses are indeed separate. Here, silencers and gun-toting ex-felons implicate different interests. U.S. v. Pope, 871 F.2d 506 (5th Cir. 1989).
5th Circuit holds multiple count section of guidelines prevented “double counting” of gun in drug and weapon counts. (470) The “multiple count” section of the guidelines, section 3D, requires that when one count embodies conduct that is treated as a specific offense characteristic in the guideline applicable to another count, the counts are grouped together as a single group. Thus, the 5th Circuit held that because the base offense level for possession of a machine gun (level 12) was so much less than that for defendant’s drug offense (level 36), the firearm offense “was essentially disregarded” in arriving at defendant’s combined offense level under § 3D1.4(c). Furthermore, the court stated that defendant was not punished twice for the same crime. She was separately sentenced for the separate crimes of possession of an unregistered machine gun and drug offenses. U.S. v. Shaw, 883 F.2d 10 (5th Cir. 1989).
6th Circuit says crack amendment required two-level reduction in base level, not final offense level. (470) In 1999, defendant was convicted of crack and firearms charges. In 2008, based on the retroactive amendments to the crack guidelines, the district court reduced defendant’s base offense level for the crack cocaine crimes from 26 to 24. The court then reapplied the multiple-count calculation of U.S.S.G. § 3D1.4. Because the firearm possession crimes now fell within four offense levels of the crack cocaine crimes, the total number of units assigned to the firearm offense was higher, and defendant’s resulting offense level was only one level less than his offense level at his original sentencing. Defendant argued that the district court erred by failing to give him a full two-level reduction in his crack cocaine sentence. The Sixth Circuit found no error. Amendment 706 required the court to reduce defendant’s base offense level, not his final offense level, by two levels. Defendant received only a one-level overall reduction because he was convicted of firearm-possession crimes as well as crack-cocaine crimes. When the severity of the crack crimes was lessened by Amendment 706, the relative impact of the firearms possession on defendant’s guideline range increased. U.S. v. Quinn, 576 F.3d 292 (6th Cir. 2009).
6th Circuit refuses to group money laundering and tax counts together. (470) Defendant engaged in a mortgage fraud scheme, laundered the proceeds, and then failed to report the proceeds as income. She was convicted of one count of money laundering and five counts of failing to file a tax return. The Sixth Circuit held that the district court properly refused to group the money laundering count with the five tax evasion counts. The conduct relating to the Count One, the money laundering count, was completely different from the conduct relating to Counts Two through Six. Count One involved fraudulent representations with respect to mortgages, after which defendant used the proceeds to purchase vehicles. Counts Two through Six involved the repeated failure to file income tax returns with the IRS. The amount of loss with respect to Count One was losses that lending institutions incurred from defaults of mortgages that the institutions would not have made but for defendant’s fraud. The loss for the purpose of Counts Two through Six was the revenue not received by the IRS from income defendant received over the five-year period. U.S. v. Woods, 554 F.3d 611 (6th Cir. 2009).
6th Circuit rules court made implicit finding that defendant conspired to commit additional robberies. (470) Defendant and his brother committed a series of bank robberies. The jury convicted defendant of conspiracy to commit bank robbery and a single count of bank robbery, and his brother was convicted of conspiracy and five robbery charges. Defendant challenged the application of a four-level increase under §3D1.4 on the grounds that the court failed to find beyond a reasonable doubt that defendant conspired to commit additional robberies, as required by §1B1.2(d). The Sixth Circuit ruled that the district court made an implicit finding that the defendant conspired to commit the bank robberies for which his brother was convicted, and this supported the §3D1.4 upward adjustment. At both defendants’ sentencing hearings, the district court rejected a five-level increase under §3D1.4, which would have required a finding that the defendants conspired to commit robberies beyond the five that the brother was convicted of. It was clear from the facts presented at trial and found by the jury that defendant and his brother conspired to rob banks together, and that the robberies all rose out of that same conspiracy. U.S. v. Bates, 552 F.3d 472 (6th Cir. 2009).
6th Circuit holds that grouping is based on the crime with the highest offense level, not the highest statutory maximum. (470) Guideline § 3D1.3 provides that when closely related counts are grouped together for sentencing purposes, the offense level applicable to the most serious of the counts controls. Defendant argued that this meant courts should look at the crime with the highest statutory maximum, not the highest offense level. The Sixth Circuit rejected this argument because it contravened the plain language of the applicable guideline provision. Section 3D1.3(a) clearly states that the most serious of the counts comprising the group is “the highest offense level of the counts in the Group.” U.S. v. Eversole, 487 F.3d 1024 (6th Cir. 2007).
6th Circuit holds that court did not err in imposing concurrent life sentences. (470) Defendant argued that the court erred by sentencing him to imprisonment for three concurrent life terms because the court failed to consider U.S.S.G. § 3D1.1. He contended that § 3D1.1 required the court to group the three counts and only sentenced him to one life term instead of three. The Sixth Circuit found that the district court misread § 3D1.1, which directs the court to determined the combined offense level. It is § 5G1.2 that actually governs sentencing on multiple counts. Section 5G1.2(b) provides that “the total punishment is to be imposed on each count and the sentences on all counts are to be imposed to run concurrently to the extent allows by the statutory maximum sentence of imprisonment for each count of conviction. Note 1 to § 5G1.2. This is precisely what the district court did. U.S. v. Crayton, 357 F.3d 560 (6th Cir. 2004).
6th Circuit holds that ten units, combined with six dismissed counts, was “significantly more than five.” (470) When counts are grouped together under U.S.S.G. § 3D1.4, the highest offense level of the counts in the group is used. The court then determines the combined offense level by increasing that offense level based on the number of “units” a defendant has. The commentary to § 3D1.4 provides that because the maximum increase provided in the guideline is five levels for more than five units, a departure may be warranted “in the unusual case where the additional offenses resulted in a total of significantly more than 5 Units.” Previous cases have held that seven units was not “significantly more than five.” See U.S. v. Valentine, 100 F.3d 1209 (6th Cir. 1996). Here, defendant had ten units for purposes of § 3D1.4. In addition, six bank robbery counts were dismissed pursuant to defendant’s plea. The Sixth Circuit held that defendant’s ten units, coupled with his acknowledged guilt with respect to six dismissed counts, satisfied the “significantly more than five” test set out in the guidelines. U.S. v. Wolfe, 309 F.3d 932 (6th Cir. 2002).
6th Circuit says that failure to appear should be grouped with underlying offense. (470) In 1990, defendant failed to appear for sentencing on drug charges. He was later arrested and pled guilty to failing to appear. He was sentenced to 151 months’ imprisonment on the drug charges and 14 consecutive months on the failure to appear, for a total of 165 months. He argued that his offenses should not have been grouped together under the 1998 guidelines because grouping was not consistent with the failure to appear statute. However, the failure to appear statute, 18 U.S.C. § 3146(b), does not specify a set term of imprisonment; instead, it states that a violation may be punished by a fine, imprisonment, or both. The statute’s only requirement is that, if a sentence of imprisonment is imposed, that sentence must run consecutively to any sentence imposed for the underlying offense(s). The Sixth Circuit, agreeing with the majority of circuits to decide this issue, held that the guidelines, USSG §§ 3D1.1, 2J1.6, and 3D1.2, clearly call for grouping a failure to appear with the underlying offense and do not violate the consecutive sentence requirement in § 3146(b)(2). “The creative approach taken by the Sentencing Guidelines, which enhances the underlying offense and then designates a portion of the total punishment as the consecutive sentence for the failure to appear offense, does not offend the plain language of the statute. The court still technically issues a separate, consecutive sentence for the failure to appear offense.” U.S. v. Green, 305 F.3d 422 (6th Cir. 2002).
6th Circuit says challenges to sentence on lesser count were mooted by “grouping” with more serious count. (470) Defendant claimed his sentence for receiving and possessing stolen mail was miscalculated by six levels. However, even with the allegedly improper adjustments, the district court found the offense level was only 18. The district court then grouped this offense with the sentence for obstruction of justice, which carried an adjusted offense level of 20. Thus, under the “grouping” rules in guideline § 3D, the adjustments to the conspiracy sentence calculation of which the defendant complained “had absolutely no effect on the actual prison term imposed upon him.” The Sixth Circuit found that defendant’s challenges to the calculation for the stolen mail conspiracy were therefore moot and need not be addressed. U.S. v. Edwards, 272 F.3d 812 (6th Cir. 2001).
6th Circuit upholds separate grouping of fraud and tax evasion counts. (470) Defendant contended that his tax evasion and fraud counts should have been grouped together under § 3D1.2(c), arguing that the counts involved substantially the same harm because the tax evasion count was based on income derived from the fraud. In the March 1992 Questions Most Frequently Asked About the Sentencing Guidelines, the Sentencing Commission stated that tax evasion counts should be grouped with the offense that generated the income. Defendant also relied on § 3D1.2(d), which states that counts involve substantially the same harm when “the offense level is determined largely on the basis of the total amount of harm or loss. The Sixth Circuit upheld the separate grouping of the fraud and tax evasion counts. Section 3D1.2(d) does not mandate automatic grouping of counts. Where the guidelines measure harm differently for different counts, those counts need not be grouped. The panel discussed with approval U.S. v. Vitale, 159 F.3d 810 (3d Cir. 1998), which held that wire fraud and tax evasion counts were not so closely related that they should have been grouped together. The Vitale court noted that the publication Questions Most Frequently Asked About the Sentencing Guidelines is not binding on the Sentencing Commission or on the courts. Weinberger v. U.S., 268 F.3d 346 (6th Cir. 2001).
6th Circuit holds the embezzlement and money laundering were properly grouped under § 3D1.2(b). (470) Defendant, the manager of a city in Michigan, was convicted of embezzlement and money laundering. The Sixth Circuit held that the district court correctly grouped the embezzlement counts with the money laundering counts pursuant to § 3D1.2(b). Both offenses involved the same victim (the city) and several transactions which were connected by a common scheme or plan – defrauding the city in order to embezzle city funds for personal expenditures. When defendant embezzled the funds from the city those funds were lost. When defendant subsequently laundered the embezzled funds by withdrawing the money to pay for personal expenses, that money became irretrievable to the city. As a direct result of both offenses, the city and its citizens incurred an enormous debt that resulted in severe budget cuts, thereby depriving the municipal coffers of funds that would have otherwise benefited the city and its citizens. The societal interest of the city were fiscally harmed by both offenses, and therefore the city was the common victim of both offenses. Thus, the panel declined to follow U.S. v. Lombardi, 5 F.3d 568 (1st Cir. 1993), to the extent is was inconsistent with this reasoning. U.S. v. Young, 266 F.3d 468 (6th Cir. 2001).
6th Circuit refuses to group illegal alien’s gun possession and illegal entry after deportation. (470) Defendant pled guilty to illegally reentering the country after deportation, in violation of 8 U.S.C. § 1326(a), and being an illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5). The Sixth Circuit held that because the purpose behind two statutes violated was dissimilar, the district court properly refused to group the counts together for sentencing purposes. The law prohibiting illegal aliens from possessing firearms protects society against those who have been determined unqualified to possess firearms. However, the law prohibiting an alien from illegally reentering the U.S. after deportation is designed to effectively enforce the immigration laws. Thus, the societal interest involved in prohibiting an alien from illegal entry after a previous deportation and prohibiting an illegal alien from possessing a gun are different. U.S. v. Herrera, 265 F.3d 349 (6th Cir. 2001).
6th Circuit groups conspiracy to murder witness with drug counts. (470) Defendants were middlemen in a botched contract killing of an individual who was to testify against figures in a heroin conspiracy. The district court grouped together their convictions for conspiracy to distribute heroin and conspiracy to murder a federal witness. Section 3D1.2(c) requires grouping when one count embodies conduct that is treated as a specific offense characteristic of the guideline applicable to another count. The Sixth Circuit found that the conspiracy to murder a federal witness was an obstruction of justice which was “inextricably entangled with the conspiracy to distribute heroin,” and thus an obstruction enhancement should have applied to the drug offense. Assuming the court applied the § 3C1.1 adjustment, the two conspiracies were properly grouped. The conspiracy to distribute heroin was ongoing and interrelated with the conspiracy to murder a federal witness. The persons involved were members of the drug conspiracy. Money from the drug conspiracy was used to pay for the conspiracy to murder a federal witness. The objective of the conspiracy to murder a federal witness was to avoid prosecution and to allow the drug conspiracy to continue. U.S. v. Rahal, 191 F.3d 642 (6th Cir. 1999).
6th Circuit holds children depicted in child pornography are primary victims for grouping purposes. (470) Defendant was convicted of seven counts of shipping and one count of possessing child pornography. At sentencing, the government argued that because his conduct affected separate victims, the counts could not be grouped together under § 3D1.2. The district court found that the victim in each count was society at large, and thus the counts should be grouped. The Sixth Circuit reversed, holding that the children depicted in child pornography are the primary victims of the crime. Unlike drug and immigration offenses which are “victimless,” the harm caused by the distribution of child pornography is concentrated upon the child. One need not know the child’s name to verify this fact. U.S. v. Hibbler, 159 F.3d 233 (6th Cir. 1998).
6th Circuit rules seven offenses not “significantly” more than five for multiple count departure purposes. (470) Defendant robbed seven banks. The “multiple count” guideline, § 3D1.4, adds only five levels to the offense level of offenders with more than five units. However, the background commentary says a departure may be warranted if the additional offenses resulted in a total of “significantly” more than five units. The district court departed upward. The Sixth Circuit reversed, ruling that seven is not “significantly” more than five. Section 3D1.4 attaches decreasing marginal punishment to additional offenses. Seven units is relatively close to the edge of the chart used in § 3D1.4 and almost certainly would not have exceeded the probable next cut‑off point for a six level increase. Departures under § 3D1.4 should be based solely on the number of units assigned to an offender, and not the underlying nature of the units. U.S. v. Valentine, 100 F.3d 1209 (6th Cir. 1996).
6th Circuit applies multiple count guideline to different indictments where sentences are imposed at same time. (470) Defendant pled guilty to a money laundering count from one indictment, and a tax count from a second indictment. The district court calculated his sentence using the multiple count adjustment in § 3D1.4. Defendant argued that § 3D1.4 does not apply to multiple counts from different indictments, but only to multiple counts in a single indictment. The Sixth Circuit disagreed, holding that § 3D1.4 applies to counts existing in separate indictments in which sentences are to be imposed at the same time or in a consolidated proceeding. Section 5G1.2 would not make sense unless the grouping rules under Chapter 3, Part D were applied to counts from different indictments. U.S. v. Griggs, 47 F.3d 827 (6th Cir. 1995).
6th Circuit holds that resisting arrest count should have been grouped with mail theft counts. (470) Defendant fled from postal inspectors attempting to arrest her on mail theft charges. She was convicted of several charges of mail theft and resisting arrest. The 6th Circuit ruled that the district court erred in not grouping the resisting arrest counts with the mail theft counts. Although section 3D1.2(d) specifically excludes the resisting arrest counts from grouping under subsection (d), subsection (c) provides for grouping of counts involving substantially the same harm “when one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.” Defendant’s driving his car in an attempt to escape arrest formed the basis for an enhancement of the mail theft counts for “reckless endangerment during flight.” This same conduct was embodied in the resisting arrest counts. Thus, under section 3D1.2(c), at least one of the resisting arrest counts must be grouped with the mail fraud counts. Judge Graham dissented. U.S. v. Beckner, 983 F.2d 1380 (6th Cir. 1993).
6th Circuit reverses failure to group six counts of using interstate facilities in an attempt to kill. (470) Defendant pled guilty to six counts of use of interstate facilities with the intent that his wife be killed. Five of the counts involved recorded discussions over the telephone between defendant and a government informant. The sixth count involved a letter mailed by defendant to the informant containing money for the hit man. The 6th Circuit reversed the district court’s refusal to group the six counts together. Under guideline § 3D1.2(b) the telephone calls and letter involve “two or more acts or transactions connected by a common criminal objective,” involving the same harm and the same victim. The exclusion in § 3D1.2(d) to offenses sentenced under guideline § 2E1.4 has no effect on counts grouped under 3D1.2(b). U.S. v. Wilson, 920 F.2d 1290 (6th Cir. 1990).
7th Circuit reverses for failure to determine a single offense level for defendant’s crimes. (470) In separate cases, defendant pled guilty to unlawful reentry after deportation, bank fraud, and violating the conditions of his supervised release. Although the cases were consolidated for sentencing, the probation office prepared two PSRs, one for the unlawful reentry case and one for the bank fraud case. Both PSRs set the guideline for their offenses at 24-30 months. All parties involved failed to recognize that a single offense level should have been calculated for both cases pursuant to U.S.S.G. ch. 3, pt. D. The district court imposed a sentence of 30 months for the bank fraud offense, to run consecutively to a 30-month term for the unlawful reentry offense, and consecutively to a 24-month term for the supervised release violation, for a total of 84 months. The Seventh Circuit ruled that the district court committed plain error when it failed to determine a single combined offense level for the offenses. The district court should have applied guideline §§ 3D1.4–5 and determined a single offense level, which would have been 15 with a criminal category IV, leading to a guideline range of 30-37 months on each count, with all counts running concurrently. U.S. v. Tovar-Pina, 713 F.3d 1143 (7th Cir. 2013).
7th Circuit finds grouping counts would not change defendant’s career offender status. (470) Defendant pled guilty in federal court to two drug counts based on incidents that occurred in May 2003 and November 2005. In between these two offenses, defendant was convicted in Illinois state court of two other felonies. Defendant argued that his federal drug counts should have been grouped together, in which case his two intervening state convictions would no longer be “prior felony convictions” for career offender purposes because they occurred after the earlier of the two grouped offenses. The Seventh Circuit found that grouping the two counts would not change defendant’s career offender status. Even if the two counts were grouped, the court would use the date of the later offense in the group in determining whether the unrelated state felony convictions were “prior to the group.” U.S. v. Liddell, 543 F.3d 877 (7th Cir. 2008).
7th Circuit rejects double counting problem where four firearm counts were grouped together. (470) Defendant was convicted under 18 U.S.C. § 922(d)(1) with selling a gun to a felon. He argued that the district court engaged in impermissible double counting by imposing an enhancement under § 2K2.1(b)(5) for transferring a gun with reason to believe that it would be used in a felony. The Seventh Circuit disagreed. First, although the provisions cover similar ground, selling to a felon and selling to one who will commit a felony are not exactly the same. Second, even if the enhancement and the substantive offense punished the same behavior, defendant’s four counts of conviction were grouped under § 3C1.2(d) in such a way as to overcome any fears of double counting. Defendant was charged with several firearms offenses, each offense carrying the same base offense level of 20, and the enhancement would only double count the offense of selling a gun to a felon. The district court therefore only needed to pick one of the other offenses to form the base level. Since all of the substantive offenses carried the same level, they were essentially interchangeable. U.S. v. Mahalick, 498 F.3d 475 (7th Cir. 2007).
7th Circuit holds that court properly grouped fraud and failure to report fraud income separately. (470) Over a several year period, defendant issued herself over $700,00 in unauthorized credits from her employer’s account, and then distributed the credits among five accounts held either in her name or the name of her husband or a son. She failed to report any of this as income. She was convicted of wire fraud and making a false statement in a tax return. The Seventh Circuit held that the district court properly refused to group the charges under § 3D1.2(c) or (d). The two offenses were not closely enough related to justify grouping under § 3D1.2(d). In addition, one did not contribute a specific offense characteristic to the other such that § 3D1.2(c) should apply. Although defendant received a two-level enhancement under § 2T1.1 (b)(1) for criminal income exceeding $10,000, and the income in question was derived from the tax fraud, this was not sufficient. The purpose of the enhancement suggested that it was not intended to add additional punishment to take the wire fraud into account, but that it was intended to recognize that defendant may have underreported more income than the IRS detected. In addition, even if the wire fraud were encompassed by the tax enhancement, the crimes still must be “closely related” to be grouped. The crime here were different, causing two different harms to two different victims. U.S. v. Vucko, 473 F.3d 773 (7th Cir. 2007).
7th Circuit refuses to group together separate acts of statutory rape against same victim. (470) Defendant pled guilty to one count of engaging in sexual acts with a 14-year-od girl, in violation of 18 U.S.C. § 2423(b). He also stipulated to having engaged in sexual acts on two other occasions with the same girl. The district court decided not to group the stipulated offenses with the offense of conviction, and the Seventh Circuit affirmed. Although defendant’s acts involved the same victim, each act of sexual misconduct was a separate harm. See example 5 to Note 4 of § 3D1.2 (two counts of raping the same person on different days are not to be grouped together). The panel rejected defendant’s argument that multiple incidents of statutory rape in the context of a consensual relationship should constitute a single harm. The enhancement the court imposed under § 4B1.5(b)(1) for defendant having engaged in a pattern of prohibited sexual conduct was irrelevant to the decision to treat his offenses as separate harms. U.S. v. Von Loh, 417 F.3d 710 (7th Cir. 2005).
7th Circuit holds that court improperly used more lenient child pornography guideline. (470) Defendant pled guilty to receipt of child pornography, in violation of 18 U.S.C. § 2252A (a)(2)(A), and possession of child pornography, in violation of 18 U.S.C. § 2252A (a)(5)(B). Section 2G2.2, which was applicable to the receipt offense, provides for a higher offense level than § 2G2.4, the guideline applicable to the possession offense. Although § 3D1.3(a) requires the court to use whichever guideline results in a higher offense level, the district court sentenced defendant under the more lenient § 2G2.4. The judge reasoned that a person who possesses something must have received it, and those who receive something necessarily possess it. The Seventh Circuit reversed. The court’s premise was that when multiple statutes apply to the same criminal conduct, the sentence should be based on whichever yields the lowest offense level. This is contrary to § 3D1.3(a), which directs the court to use the highest applicable offense level. In addition, a recent case, U.S. v. Myers, 355 F.3d 1040 (7th Cir. 2004), rejected the premise that the receipt and possession offenses are substantially the same. Although the judge stated that he would depart downward to the range provided by § 2G2.4 if the appellate court held that § 2G2.2 was the required starting point, such a departure would be improper. Courts may not use the departure mechanism to undermine decisions made by the Sentencing Commission. U.S. v. Malik, 385 F.3d 758 (7th Cir. 2004).
7th Circuit upholds refusal to group together two illegal reentry convictions. (470) In 1998, defendant was deported. He illegally returned to the U.S. in 1999, was convicted of burglary, and was deported in 2000. Once again, defendant reentered the U.S. and was arrested in June 2001 for driving under the influence. He was charged and pled guilty to two counts of illegal reentry of a previously deported alien. The Seventh Circuit held that the district court properly refused to group the two illegal reentry counts together under § 3D1.2. First, defendant’s offenses did not constitute a single, composite harm. Each illegal re-entry was a separate crime. Moreover, each time he re-entered the U.S., he committed a crime in addition to his illegal reentry. Second, defendant did not provide the court with any evidence that the crimes were committed as part of a common scheme or plan even though it was his burden to do so. Defendant offered no reasons for returning to the U.S., and the court was not obliged to accept counsel’s characterization of defendant’s motives at face value. U.S. v. Bahena-Guifarro, 324 F.3d 560 (7th Cir. 2003).
7th Circuit upholds separate grouping of perjury and tax evasion counts. (470) Defendant argued that his aiding and abetting perjury and his tax evasion charges should have been grouped under § 3D1.2(c), which provides for grouping when one of the counts embodies conduct that is treated as a specific offense characteristic of the guideline applicable to another of the counts. Defendant’s sentence on the tax offense was enhanced two levels for sophisticated concealment. Defendant argued that the perjury charge was used as part of the basis for the sophisticated-concealment enhancement; thus, the perjury was used as an adjustment to the tax sentence. The Seventh Circuit disagreed. First, subsection (c) was intended to apply only to counts that are “closely related.” Although defendant’s perjury did to some extent aid in the perpetuation of the tax conspiracy, the ostensible purpose of the perjury was to keep defendant’s assets hidden from his creditors. More importantly, his situation simply did not fit within the primary purpose of subsection (c), which is to prevent double counting of the offense behavior. Defendant would have received the same sophisticated concealment increase even if the perjury charge was not considered. Other evidence besides the perjury provided ample support for the sophisticated concealment enhancement. U.S. v. Chavin, 316 F.3d 666 (7th Cir. 2002).
7th Circuit rejects automatic grouping of listed offenses. (470) Defendant challenged the court’s refusal to group his tax and bankruptcy fraud counts together under U.S.S.G. § 3D1.2(d), noting that the offenses are listed in the “to be grouped” category. The Seventh Circuit rejected the contention that listed offenses must be grouped automatically. The primary goal of § 3D1.2 is “to combine offenses involving closely related counts.” In cases like this one, where two different offense guidelines are at issue, automatic grouping would often lead to the grouping of entirely unrelated counts. Cases cited by defendant in favor of automatic grouping involved charges that were covered by the same offense guideline. See U.S. v. Gelzer, 50 F.3d 1133 (2d Cir. 1995); U.S. v. Buenrostro-Torres, 24 F.3d 1173 (9th Cir. 1994). Although the court rejected automatic grouping, the counts here could still be grouped if the offenses were of the same general type and otherwise met the criteria for grouping under § 3D1.2(d). However, the district court properly found that the tax and bankruptcy fraud counts were not of the same general type. The victims were different, and the time frame and context did not completely overlap. Defendant’s effort to cheat his creditors did not involve “substantially the same harm” as his effort to cheat the government. U.S. v. Chavin, 316 F.3d 666 (7th Cir. 2002).
7th Circuit upholds separate grouping of pornography charges involving different children. (470) Defendant pled guilty to transporting child pornography in interstate commerce. The sentencing judge ruled that the two counts should be grouped separately because they did not involved the same primary victim. Defendant argued that the primary victim in a violation of § 2252A(a)(1) is society, and thus the sentencing court erred when it declined to group the counts. The Seventh Circuit noted that it had recently rejected this argument in U.S. v. Sherman, 268 F.3d 539 (7th Cir. 2001), which held that the victim in child pornography is the child in the image, who suffers a direct harm through the invasion of his or her privacy. U.S. v. Shutic, 274 F.3d 1123 (7th Cir. 2001).
7th Circuit holds that children involved, not society are large, are primary victims of child pornography. (470) Defendant was convicted of receiving, shipping, and possessing child pornography. He challenged the district court’s refusal to group the counts together, arguing that they all involved the same victim – society at large. The Seventh Circuit, agreeing with the majority of circuits and disagreeing with the one circuit deciding to the contrary, U.S. v. Toler, 901 F.2d 399 (4th Cir. 1990), ruled that the children exploited in the pornography are the primary victims of the crimes of possessing, receiving and distributing those materials. The court did reject the market incentive theory of victimization. Although creating a market for the materials certainly victimizes the children involved, the purchaser does not directly harm the children involved. However, the possession, receipt and shipping of child pornography does directly victimize the children portrayed by violating their right to privacy, in particular their individual interest in avoiding the disclosure of personal matters. The court noted the tension between this holding and previous cases where the government has argued that it has not engaged in outrageous conduct when it supplies a suspect with previously seized child pornography. U.S. v. Sherman, 268 F.3d 539 (7th Cir. 2001).
7th Circuit says court may depart based on seventh through ninth robberies. (470) Defendant pled guilty to nine bank robberies. When a defendant is convicted of multiple counts, § 3D1.4 increases a defendant’s offense level based on the number of “units” or groups. Each additional unit up to five causes a one-level increase in offense level. If there are “more than five” units, the court is directed to increase a defendant’s offense level by five. At defendant’s initial sentencing, the district court made a four-level upward departure, concluding that § 3D1.4 accounted for only five of the nine robberies. In U.S. v. Szabo, 147 F.3d 559 (7th Cir. 1998), the Seventh Circuit reversed, finding that the “more than five” language in § 3D1.4 encompassed six of the nine robberies. On remand, the district court made a three-level departure, resulting in a 87-month sentence. Defendant argued that the seventh bank robbery conviction, like the sixth, was taken into account under the “more than five” language of § 3D1.4. The Seventh Circuit upheld the district court’s decision to impose an additional level of punishment for each robbery beyond the sixth. The court rejected U.S. v. Valentine, 100 F.3d 1209 (6th Cir. 1996), in which the Sixth Circuit held that no upward departure beyond the five levels listed in § 3D1.4 was warranted for seven offenses. There is no requirement that offenses beyond the first six be sentenced according to the formula in § 3D1.4 for offenses one through five. The three-level departure was reasonable, given the overall leniency of defendant’s sentence. U.S. v. Szabo, 176 F.3d 930 (7th Cir. 1999).
7th Circuit separately groups illegal reentry count and alien’s possession of gun count. (470) Defendant pled guilty to illegal reentry into the U.S. after deportation, in violation of 8 U.S.C. § 1326(a), and being an illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5). He argued that these counts should have been grouped together for sentencing purposes. The Seventh Circuit held that the illegal reentry count and the possession of a gun by an illegal alien count were properly grouped separately. The court agreed with the Ninth Circuit’s opinion in U.S. v. Barron-Rivera, 922 F.3d 549 (9th Cir. 1991) that grouping together § 922(g)(5) and § 1326 counts would distort the aim of grouping. Illegally reentering the country after deportation and illegally possessing a firearm do not share any common offense characteristics. U.S. v. Salgado-Ocampo, 159 F.3d 322 (7th Cir. 1998).
7th Circuit upholds separate grouping of three obstruction counts. (470) Defendant was the attorney for a racketeer who ran an illegal gambling business. He was convicted of three counts of conspiring to obstruct the function of the FBI, the grand jury and the federal district court in the investigation and prosecution of his client’s gambling enterprise. In one instance, defendant claimed a government investigator had solicited bribes. In another, he filed false motions to hinder a grand jury investigation. Finally, he persuaded co-counsel to move to disqualify the judge. The Seventh Circuit held that the three obstruction counts were properly grouped separately under § 3D1.2, even though they each shared the common purpose. Defendant’s conduct invaded three distinct societal interests–the proper functioning of the FBI, the grand jury, and the district court. Defendant’s conduct interfered with the function of these entities at different times in a period of two to three years. Although he had only one criminal objective, it did not involve a single course of action. U.S. v. Cueto, 151 F.3d 620 (7th Cir. 1998).
7th Circuit reverses extent of departure because § 3D1.4 accounted for sixth robbery. (470) Defendant pled guilty to nine charges of bank robbery. The district court sentenced defendant under § 3D1.4, which directed the court to take the highest adjusted offense level, and then add five levels because total number of robbery counts was “more than five.” The district court found that § 3D1.4 understated the seriousness of defendant’s multiple offenses. It departed upward by four levels because there were nine robberies, “only five of which were given credit for in computing the offense level.” The Seventh Circuit held that the court’s reasoning in choosing to depart by four levels was flawed, since the adjustment under § 3D1.4 for “more than five” additional counts encompasses the sixth charged offense. Thus, the court’s conclusion that § 3D1.4 credited only five of defendant’s nine robberies was erroneous. U.S. v. Szabo, 147 F.3d 559 (7th Cir. 1998).
7th Circuit approves upward departure based on second murder conspiracy. (470) Defendant was convicted of seven counts based on two separate murder-for-hire schemes to kill her former lover. The district court grouped her convictions under § 3D1.2(b) because they involved the same victim and were part of a common scheme or plan. The court then departed upward because the second conspiracy was not adequately considered by the Sentencing Commission. The Seventh Circuit approved the upward departure based on the second murder conspiracy. Defendant’s decision to launch the second plan was not a case of “trying again” after the first conspiracy failed. Rather, by initiating the second conspiracy while the first conspiracy was still viable, defendant simply tried twice as hard to arrange the murder, and the intended victim was exposed to twice the risk of harm. The separate transactions enhanced the risk of harm because the likelihood that the victim would be killed increased twofold. U.S. v. Scott, 145 F.3d 878 (7th Cir. 1998).
7th Circuit says sentence was the result of grouping rules rather than § 5G1.2(d). (470) Defendant was convicted of aiding and abetting tampering with a Vehicle Identification Number (VIN) and pled guilty to two counts of dealing in stolen property. The district court sentenced him to 60 months for the VIN charge concurrent with 87 months for the stolen property charge. Defendant argued that the district court improperly applied § 5G1.2(d) to arrive at the 60-month sentence instead of 41-51 months. The Seventh Circuit found the issue was one of grouping rather than application of § 5G1.2. The district court grouped the VIN count with the stolen property count under § 3D1.2 for a combined sentencing range of 70-87 months. However, the statutory maximum for the VIN count was 60 months. Section 5G1.1(a) directs the court to use the statutory maximum as the sentence when the statutory maximum is less than the guideline range. Therefore, the court correctly applied § 5G1.1(a) to sentence defendant to the statutory maximum for the VIN count rather than the guideline sentence. U.S. v. Petty, 132 F.3d 373 (7th Cir. 1997).
7th Circuit requires mail fraud and money laundering counts to be grouped together. (470) Defendant, an employee of the U.S. Postal Service, hired contractors to perform work on post offices in exchange for kickbacks of money, vehicles, services and real estate. He was convicted of mail fraud, conspiracy and money laundering. The Seventh Circuit held that the district court erred in refusing to group the mail fraud and money laundering convictions together. In U.S. v. Wilson, 98 F.3d 281 (7th Cir. 1996), the court held that mail fraud and money laundering convictions should be grouped as closely related counts under § 3D1.2 because the money laundering served the necessary purpose of concealing the fraud, keeping the scheme afloat, and perpetrating the scheme that produced the laundered funds. Wilson rejected the notion that mail fraud and money laundering should not be grouped because those crimes harm different victims. In addition, defendant was indicted and convicted under the “promotion” prong of the money laundering statute. Defendant laundered the proceeds of his mail fraud scheme with the intent of promoting that illegal scheme. Wilson involved the “concealment” prong of the money laundering statute. Merely concealing the proceeds of criminal activity evidences a lesser connection to the underlying criminality than actually promoting the activity. U.S. v. Emerson, 128 F.3d 557 (7th Cir. 1997).
7th Circuit finds that results would be the same under defendant’s grouping scenario. (470) Defendant was convicted of various charges stemming from his involvement in a crime syndicate. He argued that the district court should have grouped the racketeering acts under § 3D1.2 into 3 groups rather than 9. The Seventh Circuit did not address this claim since the result would be the same. The nine groups found by the district court led to a 5-level increase under § 3D1.4. Defendant’s interpretation would also lead to a 5-level increase. He would receive one unit for each of the 3 groups he identified, a fourth for an attempt to burn a movie theater, a fifth for a murder plot, and another 1/2 unit for conducting an illegal gambling business. Those units would translate to a 5-level increase. U.S. v. Zizzo, 120 F.3d 1338 (7th Cir. 1997).
7th Circuit treats hiring scheme as single count of fraud. (470) Defendant, a county undersheriff, devised a scheme to provide jobs for personal or political reasons. One part of the scheme involved hiring favored individuals for various law enforcement positions, even though they had failed the qualifying examinations. The other part of the scheme consisted of hiring individuals who defendant knew would do little or no work in their designated positions. The district court departed upward based on the foreseeable non-monetary harm and the loss of public trust caused by putting unqualified people in the sheriff’s department. Defendant argued that court departed only because the government improperly charged him with just a single count of mail fraud. He argued that there were really two schemes—(1) a ghost payrolling scheme and (2) an unqualified hiring scheme, and that if the government had charged him with two fraud counts, they would have been grouped for sentencing, and the court would not have departed upward. The Seventh Circuit found no error. The scheme had a single purpose—to provide political “payoffs.” The result of both parts of the scheme was that qualified applicants were denied positions which were given to individuals who were either unqualified or who performed no work. U.S. v. Dvorak, 115 F.3d 1339 (7th Cir. 1997).
7th Circuit holds that mail fraud and money laundering should have been grouped together. (470) Defendant conducted a Ponzi scheme and then laundered the proceeds. He pled guilty to mail fraud and money laundering. The Seventh Circuit held that the district court erred in refusing to group the mail fraud and money laundering counts together. Section 3D1.2 was designed to combine offenses involving closely related counts. Defendant’s convictions clearly met that criteria. All of the money that defendant laundered was money defrauded from his investors, so without the fraud there would have been no money to launder. Moreover, the money laundering took place in an effort to conceal the fraud and keep the entire scheme afloat. Defendant took the money he received from his investors and purchased cashier’s checks to make payments to earlier investors, in classic Ponzi fashion. The use of cashier’s checks concealed the source of the money and helped keep the scheme afloat by lulling investors into a false sense of security. Subsection (d) identifies offenses governed by § 2F1.1 and § 2S1.1 as appropriate for grouping. U.S. v. Wilson, 98 F.3d 281 (7th Cir. 1996).
7th Circuit holds four counts from same drug transaction should have been grouped. (470) Defendant was arrested after trying to buy a garbage bag filled with marijuana. The district court found that the counts for using a communications facility and selling to a minor involved separate harms from the possession and conspiracy offenses. The Seventh Circuit disagreed, holding that all four counts, which stemmed from a single transaction, involved substantially the same harm and should have been grouped together. Section 3D1.2(d) requires grouping when the offense level is determined largely on the basis of the quantity of a substance involved. This was true for the charges of conspiracy, possession and distribution to a minor. Note 4 to § 3D1.2(a) says that counts that are part of a single course of conduct with a single criminal objective and harm to the same victim are grouped together. This makes it clear that using a communications facility to arrange for a pickup of marijuana should be grouped with the other charges that arise from that pickup. U.S. v. McDuffy, 90 F.3d 233 (7th Cir. 1996).
7th Circuit says court properly applied grouping rules and § 5G1.2 to reach total punishment. (470) Defendant pled guilty to RICO and money laundering charges. The Seventh Circuit found that the district court properly applied the grouping guidelines and § 5G1.2 to reach a proper sentence. Because all three counts involved “substantially the same harm,” they were all appropriately included in a single group. The court then used the guideline that produced that highest offense level to determine the appropriate total punishment. The highest offense level corresponded to the money laundering count. Defendant’s “total punishment” was based on this offense level of 29. The money laundering count carried a statutory maximum of five years. Since the total punishment corresponding to offense level 29 was greater than the statutory maximum for the money laundering count, the court imposed the total punishment on each of the RICO counts and the statutory maximum on the money laundering count. U.S. v. Griffith, 85 F.3d 284 (7th Cir. 1996).
7th Circuit says unconvicted, unstipulated crimes may not be used for § 3D1.4 departure. (470) To determine a combined offense level under § 3D1.4, a defendant’s offense level is “topped off” at five levels if he committed more than five crimes. The district court departed upward based on defendant’s 22 crimes. Since all 22 crimes were committed in furtherance of the RICO conspiracy, they were conduct related to the offense of conviction rather than being a part of the defendant’s criminal history. However, the Seventh Circuit remanded, because only 13 of defendant’s 22 crimes were ones of which he had been convicted. Unconvicted, unstipulated crimes may not be used for a departure under § 3D1.4. U.S. v. DiDomenico, 78 F.3d 294 (7th Cir. 1996).
7th Circuit approves departure where grouping caused offense not to affect offense level. (470) Defendant and his wife were arrested on drug charges. While they were out of bond, defendant severely beat and slashed his wife in retaliation for information she had given the police. Defendant was convicted of drug crimes and retaliating against a witness. The district court grouped the offenses together, but because of the disparity between offense levels, the retaliation offense did not contribute toward the final offense level. The district court departed upward by five levels, finding defendant’s vicious assault was substantially more serious that the generic “causing or threatening to cause physical injury to a person” to which § 2J1.2(b)(1) refers. The Seventh Circuit held that the five level departure was reasonable, when judged against other provisions of the guidelines. Defendant’s conduct amounted to attempted murder, which carries an offense level of 28, with a four level enhancement for permanent or life-threatening injuries. When an offense level of 32 is grouped with the 30 for the drug offense, this results in a total offense level of 34. Defendant’s 180-month sentence fell within the 151-188 month range that would have been applicable. Moreover, a departure for extreme psychological injury and for heinous conduct might have been warranted. U.S. v. Herrera, 70 F.3d 444 (7th Cir. 1995).
7th Circuit separately groups illegal reentry and counterfeiting offenses. (470) Defendant was deported in 1993. He was caught illegally reentering the country carrying counterfeit checks. He argued that his attempt to illegally reenter the country was “so intertwined” with the smuggling of counterfeit checks that they were a single, continuous course of conduct and should have been grouped together. He also claimed that society as a whole was the victim of both the crimes. The Seventh Circuit upheld the separate grouping of the immigration and counterfeiting offenses since they did not involve harm to the same victim. The societal interest in policing our national borders is not the same as the societal interest in protecting the interstate flow of currency. Moreover, the victim of defendant’s counterfeiting schemes was not society, but the financial institutions that would have suffered a monetary loss when they cashed his counterfeit checks. The crimes were not part of a common scheme or plan even though one was committed to facilitate the commission of the other. U.S. v. Owolabi, 69 F.3d 156 (7th Cir. 1995).
7th Circuit approves obstruction enhancement where grouping rule caused obstruction count not to influence offense level. (470) Defendant argued that an obstruction of justice enhancement for destruction of records was improper in light of the separate charge which alleged the same conduct. The Seventh Circuit found no double counting, since the application of the grouping rules caused the obstruction conduct not to affect the base offense level calculation. Defendant’s offense level was based on the most serious offense–mail and wire fraud. The two-level obstruction of justice enhancement was added to the offense level taken from the mail and wire fraud conviction. U.S. v. Briscoe, 65 F.3d 576 (7th Cir. 1995).
7th Circuit has no jurisdiction to review failure to “consolidate” sentences where defendant had completed prior sentence. (470) After defendant had served a sentence imposed by an Indiana federal court, defendant was convicted by an Illinois federal court for charges stemming from a similar scheme. Defendant argued that the district court erred in refusing to group or consolidate the Indiana and Illinois cases for sentencing purposes. The Seventh Circuit held that it had no jurisdiction to review the claim since the district court properly applied the guidelines. The grouping guideline, § 3D1.2, applies to counts in an indictment and had no relevance to this situation. The cases were not “related” under § 4A1.2; they did not occur at the same time and were not previously consolidated. Finally, § 5G1.3 applies only when a defendant is subject to an undischarged term of imprisonment in connection with an earlier conviction. Defendant had completed his prior sentence before he was sentenced in the instant case. Since the district court did not misapply the guidelines, defendant’s only claim could be that the court should have departed downward to account for the earlier sentence. A refusal to depart downward is not reviewable. U.S. v. Yahne, 64 F.3d 1091 (7th Cir. 1995).
7th Circuit approves grouping of mail and bank fraud counts. (470) Between 1986 and 1988, defendants engaged in a fraudulent “Ponzi” scheme. In 1990, defendants committed bank fraud in obtaining a bank loan. They pled guilty to one count of bank fraud and one count of mail fraud. The Seventh Circuit held that the two fraud counts were properly grouped together under § 3D1.2. Section 3D1.2(b) provides for the grouping of all counts involving the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan. Further, multiple fraud convictions are grouped together under § 3D1.2(d). U.S. v. Brown, 47 F.3d 198 (7th Cir. 1995).
7th Circuit approves consecutive sentences for a combined punishment within guideline range. (470) Defendant was convicted of money laundering and obstruction of justice. She argued that her money laundering count included elements of obstruction of justice, and therefore consecutive sentences punished her twice for the same conduct. The Seventh Circuit found that she was sentenced properly. The district court recognized the money laundering count embodied elements of obstruction of justice, and therefore grouped the counts together under § 3D1.2. The total punishment for the offenses was 108 to 135 months. The court then imposed a 60-month sentence for money laundering and a 48-month sentence for obstruction of justice. Applying § 5G1.2(d), the court ordered these sentences to run consecutively to produce a combined sentence within the total punishment range of the guidelines. U.S. v. Maggi, 44 F.3d 478 (7th Cir. 1995).
7th Circuit upholds separate grouping of extortion in violation of 18 U.S.C. § 1951. (470) Defendant argued that the district court should have grouped his conviction for operating a gambling business with the predicate extortion act used to determine his RICO sentence. The 7th Circuit upheld the separate grouping, since § 3C1.2(d) explicitly excludes extortion in violation of 18 U.S.C. § 1951 from the grouping procedure of § 3D1.2. U.S. v. Morgano, 39 F.3d 1358 (7th Cir. 1994).
7th Circuit says defendant lacked standing to challenge concurrent sentence below guideline range. (470) Defendant received a 120-month sentence on fraud charges, and a concurrent 24-month sentence on a counterfeiting charge. The separate sentence for the counterfeiting charge was erroneous because the district court failed to follow the guidelines rules under sections 3D1.1 to 3D1.5 for the treatment of multiple charges. Nevertheless, the 7th Circuit held that defendant lacked standing to contest the 24-month counterfeiting sentence, since it was below defendant’s guideline range and was concurrent to the sentence to be imposed on the other counts. U.S. v. Kopshever, 6 F.3d 1218 (7th Cir. 1993).
7th Circuit rejects departure based on count that was disregarded under grouping rules. (470) Defendant pled guilty to three counts of bank fraud and one count of making false statements on a loan application. Under section 3D1.4(c), the false statements count was disregarded in determining defendant’s offense level because the offense level for that count was more than nine levels below the offense level for the bank fraud counts. The 7th Circuit rejected an upward departure made to account for the fact that false statements count did not affect the offense level determination. The guidelines specifically considered the case of an additional, less serious count and determined that the conduct should be disregarded except to the extent it might influence the district court’s choice of sentence within the applicable guideline range. The background commentary to section 3D1.4 did not support the departure. There was nothing “unusual” about this situation and no special circumstances existed. U.S. v. Panadero, 7 F.3d 691 (7th Cir. 1993).
7th Circuit says uncharged robberies should have been used for criminal history departure. (470) Defendant pled guilty to six bank robberies and confessed to five more. The district court departed upward for the five uncharged robberies by including them in the multiple count sentencing calculations under §3D1.4, thus raising defendant’s offense level. The 7th Circuit rejected this methodology, holding that these uncharged crimes should have been the basis for a criminal history departure under §4A1.3. Although “relevant conduct” adjustments may be made under §1B1.3 for some offenses, bank robbery is not one of them. Moreover, before the district court could depart based on the uncharged robberies under the “general departure” section, §5K2.0, it must first find that a “criminal history” departure under §4A1.3 was not appropriate. Judge Crabb disagreed with the majority’s conclusion that §5K2.0 was unavailable as a basis for departure. U.S. v. Dawson, 1 F.3d 457 (7th Cir. 1993).
7th Circuit rejects departure based on sixth charged bank robbery. (470) Defendant pled guilty to six counts of bank robbery. The district court departed upward based on the sixth charged count, relying on background commentary to §3D1.4 which states that “inasmuch as the maximum increase provided in the guideline is five levels, departure would be warranted in the unusual case where the additional offenses resulted in a total of significantly more than five units.” The 7th Circuit held that §3D1.4 does take into account six charged offenses, and therefore a departure based on the sixth charged bank robbery was double counting. Under §3D1.4, the offense level is increased by five when six units are included in the calculation. For three and one half to five units, the offense level is increased by four levels; for more than five units, the offense level is increased by five. Thus, the section does not ignore or discount a sixth charged offense. U.S. v. Dawson, 1 F.3d 457 (7th Cir. 1993).
7th Circuit upholds aggregation of amounts in money laundering offenses. (470) Defendant was convicted of mail fraud, money laundering and securities fraud for depositing investor’s funds into accounts for his own personal use. His offenses were placed in two groups under section 3D1.2(d): a fraud group and a money laundering group. The 7th Circuit affirmed a four level enhancement based on the money involved in the money laundering group under section 2S1.1(b)(2)(E). The district court found that $88,438 had been laundered in furtherance of the scheme. In addition, defendant made a large number of transactions with his ill-gotten gains that were in excess of $10,000. The total amount involved in these transactions was $857,263. The purported interest and partial withdrawal payments were clearly undertaken as part of a common scheme to defraud investors, and thus, aggregation of the amounts involved in both offenses was appropriate. Thus, $941,701 was the total attributable to the money laundering offenses, and the four level enhancement was correct. U.S. v. Cole, 988 F.2d 681 (7th Cir. 1993).
7th Circuit says sentence for failure to appear may not exceed sentence for underlying offense. (470) Defendant failed to report for trial on drug charges. After he was located, he was convicted of the drug charges. In a second proceeding, he was found guilty of failing to appear. The case was remanded for resentencing because the district court improperly calculated defendant’s criminal history. In so remanding, the 7th Circuit ruled that when a defendant is convicted of two crimes that would be grouped in a single trial, the second sentence must be commensurate with the sentence defendant would have received at a single trial, even if the court must depart downward to achieve this result. If defendant’s drug charge and failure to appear charge had been grouped in a single proceeding, he would have had a sentencing range of 78 to 97 months. Since defendant already received two concurrent 75-month sentences on the drug charges, on remand his sentence on the failure to appear charge could not exceed 22 months. U.S. v. Lechuga, 975 F.2d 397 (7th Cir. 1992).
7th Circuit affirms grouping where counts involved same victim and were part of common scheme. (470) Defendant caused three men to perjure themselves before a grand jury. He was convicted of subornation of perjury, conspiracy to commit subornation of perjury and making a false statement under oath. The 7th Circuit affirmed the district court’s decision to group the counts together, since the government conceded that all counts involved the same victim and were part of a common scheme or plan. This satisfied all of the conditions for grouping under section 3D1.2(b). U.S. v. Bradach, 949 F.2d 1461 (7th Cir. 1991).
7th Circuit suggests court should not pronounce sentence on one count until it has disposed of all counts. (470) Defendant was charged with five related money laundering counts. He was acquitted of counts one and two, and found guilty of count five. The jury was unable to reach a verdict on counts three and four, and the district judge ordered a mistrial on those counts. Defendant was then sentenced to 46 months prison on count five, and the sentence was stayed pending appeal. In holding it lacked jurisdiction over the appeal because of the pending counts, the 7th Circuit suggested that in future cases, the district judge should not pronounce any sentence until it has disposed of all counts. The grouping rules set forth in guideline section 3D1.1 create special problems when a conviction on one count of an indictment occurred at an earlier time than conviction on other counts. U.S. v. Kaufmann, 951 F.2d 793 (7th Cir. 1992).
7th Circuit, en banc, rules firearm counts should have been grouped together. (470) Defendant pled guilty to being a felon in possession of a firearm and possession of an unregistered firearm. The district court refused to group the two counts together, finding that his offenses were victimless crimes that involved different and distinct harms to society. The 7th Circuit reversed. It found that since the offenses were neither specifically included or excluded from the list of offenses to be grouped under guideline section 3D2.2, the guidelines mandate a determination according to the facts of the case. Here the two firearms counts were “so closely intertwined” as to require grouping. Under 18 U.S.C. section 922(g), felons are prohibited from possessing or registering firearms. Section 5861 makes it illegal for any person to possess a firearm that is not registered to him. Therefore, whenever a felon possesses a firearm, he will always violate both statutes. “The harm to society was unitary–one felon had one firearm.” Judge Baum, with whom Judges Wood, Coffey, Manion and Kanne joined, dissented, arguing that none of the guideline sections supported grouping and that the case-by-case approach followed by the majority was in conflict with the language of the guidelines. U.S. v. Bruder, 945 F.2d 167 (7th Cir. 1991) (en banc).
7th Circuit rules that “multiple count” guideline rendered error in choice of theft guideline “a mere technicality.” (470) The district court improperly applied the theft guideline, § 2B1.1, rather than the robbery guideline, § 2B3.1, to defendant’s theft of the kidnap victim’s automobile. However, the 7th Circuit held that this was “a mere technicality” because in calculating the sentence, the theft offenses were “grouped” with the kidnapping count under § 3D1.3(a). Since the offense level for the kidnapping count was higher than the theft offense, the kidnapping count determined the group’s offense level. Thus the offense level applicable to the interstate transportation of a motor vehicle had no affect on defendant’s sentence. U.S. v. White, 903 F.2d 457 (7th Cir. 1990).
8th Circuit upholds grouping of drug and money laundering conspiracy charges. (470) A jury convicted defendant of methamphetamine conspiracy and money laundering conspiracy charges. The court sentenced defendant to life imprisonment on the drug conspiracy charge, and the statutory maximum of 240 months on the money laundering charge. She contended the court unlawfully grouped her two counts, allowing the court to circumvent the 240-month statutory maximum on her money laundering conspiracy count. See 18 U.S.C. § 1956(a). Because defendant conspired to launder the money that derived from the unlawful methamphetamine distribution conspiracy, her drug conspiracy count embodied conduct that was treated as a specific offense characteristic in her money laundering conspiracy count. The Eighth Circuit therefore affirmed the district court’s grouping of the two counts under § 3D1.2(c). U.S. v. Hoffman, 707 F.3d 929 (8th Cir. 2013).
8th Circuit holds that defendant properly received two units for count involving two minor victims. (470) Defendant pled guilty to five counts of producing child pornography, in violation of 18 U.S.C. § 2251(a). The district court found a total of five units under § 3D1.4 and increased defendant’s adjusted offense level by five. Defendant argued that the court should have followed § 3D1.4, which states that five units would only cause an increase of four levels. However, § 2G2.1(d)(1) requires the sentencing court to treat each minor child exploited as though the exploitation of that minor was contained in a separate count of conviction. Count IV involved two different minor children; therefore it counted as two units. Because defendant had a six units instead of five, the Eighth Circuit ruled that the district court properly added five levels to defendant’s offense level. U.S. v. Kiel, 454 F.3d 819 (8th Cir. 2006).
8th Circuit says court properly refused to group child pornography counts involving same victim. (470) Defendant pled guilty to five counts of producing child pornography, in violation of 18 U.S.C. § 2251(a). The district court refused to group any of the counts, finding that U.S.S.G. §§ 2G2.1 and 3D1.2 make it clear that child pornography counts are not to be grouped. Defendant argued that the court should have created two groups, one for each victim. The Eighth Circuit held that the child pornography counts were not required to be grouped. Each time defendant molested a child, he inflicted a separate and distinct harm upon that child. Therefore, his actions could not be considered “substantially the same harm” for grouping purposes under § 3D1.2. U.S. v. Kiel, 454 F.3d 819 (8th Cir. 2006).
8th Circuit approves departure for pharmacist who diluted chemotherapy drugs to cancer patients. (470) Defendant, a pharmacist, diluted several chemotherapy drugs before distributing them for administration to cancer patients. The district court made a three-level upward departure on four grounds: (1) the grouping rules disregarded defendant’s significant number of additional offenses; (2) defendant significantly endangered public health; (3) defendant’s conduct caused extreme psychological injury to his victims; and (4) the guidelines did not take into account defendant’s uncharged criminal conduct. The Eighth Circuit affirmed, finding that at least two of the cited reasons solidly supported the departure. The background commentary to § 3D1.4 authorizes an upward departure when the flat five-level increase for more than five “units” disregards a significant number of units. Defendant’s offenses of convictions, combined with his other admitted relevant conduct (diluting 50 additional doses to eight patients named in the indictment, and 102 doses of drugs to 26 other patients) easily resulted in significantly more than five units. Moreover, Note 1 to § 2N1.1 authorizes an upward departure where the offense caused “extreme psychological injury.” The PSR was replete with victim impact statements illustrating the extreme psychological harm suffered by defendant’s patients. U.S. v. Flores, 362 F.3d 1030 (8th Cir. 2004).
8th Circuit says obstruction increase was not double counting where obstructive conduct was unrelated to underlying convictions. (470) Defendant maintained that obstruction of justice inhered in his charges of fraud, money laundering, and false statements, and that applying the § 3C1.1 adjustment to him amounted to double counting. However, defendant’s 49 counts were grouped together in a single group pursuant to § 3D1.2(d), and under the multi-count grouping rules, defendant’s convictions on the 47 counts other than his two-money laundering offenses were disregarded in calculating his adjusted offense level. Among the 49 counts of conviction were two counts of obstruction of justice. The conduct underlying defendant’s obstruction of justice convictions overlapped with, but went beyond, the conduct underlying the money laundering convictions. Therefore, the Eighth Circuit ruled that the imposition of the obstruction adjustment was not impermissible double counting because the court expressly identified obstructive conduct unrelated to the conduct underlying the money laundering convictions. U.S. v. Frank, 354 F.3d 910 (8th Cir. 2004).
8th Circuit holds that court correctly refused to group defendant’s mail fraud and tax fraud counts. (470) Defendant pled guilty to mail fraud, structuring cash transactions to evade reporting requirements, and filing false tax returns. He argued that the tax fraud counts should have been grouped together with the mail fraud offenses, but the Eighth Circuit upheld the separate grouping. Subsections (a), (b) and (c) of § 3D1.2 were not applicable because (1) defendant’s mail fraud and tax fraud had different victims (his creditors and niece and nephew for one group, and the U.S. Treasury for the other), and (2) defendant’s offense level for his tax fraud counts was not increased based upon his conduct that was punished as mail fraud. Section 3D1.2(d) requires the grouping of counts for which “the offense level is determined largely on the basis of the total amount of harm or loss.” The Second Circuit has held that grouping of tax fraud and mail fraud is proper under § 3D1.2(d), see U.S. v. Gordon, 291 F.3d 181 (2d Cir. 2002), but other circuits disagree. While the offense levels for defendant’s mail fraud and tax fraud offenses are both largely based on the amount of harm or loss, to be grouped under § 3D1.2(d), the offenses must also be “of the same general type.” Note 6 to § 3D1.2. When the loss tables for two offenses punish the same amount of loss differently, the offenses are not “of the same general type” for purposes of § 3D1.2(d). See U.S. v. Hildebrand, 152 F.3d 756 (8th Cir. 1998). U.S. v. Shevi, 345 F.3d 675 (8th Cir. 2003).
8th Circuit approves upward departure for less severe crimes disregarded by combined offense level. (470) Defendant was convicted of three counts of assault resulting in substantial bodily injury to a child under 16 and one count of assault resulting in serious bodily injury. See 18 U.S.C. §§ 113(a)(6) & (7), 1153. Under § 3D1.4, the combined offense level is determined by taking the offense level for the most serious crime of assault and increasing that level by the amount of levels listed in a table in § 3D1.4. Because the offense levels for defendant’s three less serious counts of assault fell more than nine levels below the offense level for the most serious assault, § 3D1.4(a) required the district court to disregard the less-severe assaults in determining the combined offense levels. The Eighth Circuit approved an upward departure based on the guidelines’ failure to provide any additional punishment for the less severe assaults. The background commentary to § 3D1.4 authorizes a departure for precisely this reason, and the departure was well justified here. The operation of § 3D1.4 entirely withdrew from the combined offense level computation three separate counts of assault to a defenseless toddler. Those assaults occurred on three separate days and involved three separate and traumatic injuries to a very small child, including a fractured skull, burns to his face, and a bite to his leg. U.S. v. Brown, 287 F.3d 684 (8th Cir. 2002).
8th Circuit says using defendant’s role in wire fraud to adjust money laundering counts required grouping. (470) The district court grouped defendant’s money laundering counts and fraud counts separately. He argued that the court erred by applying a leadership increase to the money laundering group based in his role in the wire fraud activity. He argued that this was inconsistent with § 3D1.2(c), which requires grouping when “one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.” The Eighth Circuit found no fault with the district court’s consideration of defendant’s role in the underlying wire fraud offense to adjust the money laundering counts. The guidelines require that a defendant’s role in the offense be determined on the basis of all relevant conduct, and not solely on the basis of elements and acts in the count of conviction. USSG Ch. 3 pt. B, introductory cmt. However, the court agreed that using conduct from one group of counts to adjust the offense level of another group of counts without thereafter grouping all the counts together was inconsistent. The panel concluded that § 3D1.2(c) requires money laundering and fraud counts to be grouped together when a district court relies solely on fraud conduct to adjust the money laundering guidelines. However, defendant did not challenge the district court’s grouping decision in this appeal; he only challenged the § 3B1.1 adjustment. U.S. v. Ross, 279 F.3d 600 (8th Cir. 2002).
8th Circuit upholds separate grouping of counts relating to separate pipe bombs. (470) Defendant pled guilty to six counts stemming from his manufacture of five pipe bombs that he placed around the city of Des Moines in an attempt to create the appearance of a mad bomber. The district court placed the six counts into five groups, grouping only counts one and two together because they related to the same pipe bomb and same incident. Although defendant argued that all the manufacturing counts should be grouped together, the district court rejected that analysis because the bombs were individually constructed, placed around the city, and directed at different targets. The Eighth Circuit held that the district court did not err in this decision. However, the district court improperly increased defendant’s offense level by five under § 3D1.4(a). Counts one and two were combined into a single group. Therefore, the combined offense level should have been increased by only four levels. U.S. v. Barber, 272 F.3d 1067 (8th Cir. 2001).
8th Circuit upholds refusal to group monetary transaction count with fraud counts. (470) Defendant was convicted of wire and securities fraud, and engaging in monetary transactions involving criminally derived property. Defendant argued that the court should have grouped the monetary transaction count with the fraud count under § 3D1.2(c) (providing that counts involve substantially the same harm when “one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.”) Following the First Circuit’s opinion in U.S. v. Lombardi, 5 F.3d 568 (1st Cir. 1993), the Eighth Circuit held that the district court did not err by refusing to group the monetary transaction count with the fraud counts. In essence, defendant’s knowledge of the origin of the funds was not conduct embodied in the securities fraud count. U.S. v. Hetherington, 256 F.3d 788 (8th Cir. 2001).
8th Circuit finds no plain Apprendi error where same sentence would have been required by multiple count rules. (470) On remand from the Supreme Court to reconsider this case in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), the Eighth Circuit reaffirmed defendant’s 160-month sentence. The panel noted that the statutory maximum sentence for an indeterminate amount of marijuana was 60 months under 21 U.S.C. § 841(b)(1)(D). However, under U.S. v. Sturgis, 238 F.3d 956 (8th Cir. 2001), when a defendant is convicted of multiple counts (here three counts), an Apprendi violation does not necessarily constitute plain error because the guidelines “require a district court to run sentences for multiple counts consecutively, rather than concurrently, if the guideline sentence succeeds the statutory maximum sentence for each count.” See § 5G1.2(d). Judge Heaney concurred, but expressed the view that Sturgis was incorrectly decided and that under Apprendi, the “stacking” argument should not be available. U.S. v. Caldwell, 255 F.3d 532 (8th Cir. 2001).
8th Circuit holds that most serious of grouped counts has highest offense level, not highest statutory maximum. (470) Defendant was convicted of manufacturing methamphetamine and endangering human life while doing so. The district court grouped the counts and, finding the endangering life count was the most serious, used it to set the offense level for the group. Relying on U.S. v. Brinton, 139 F.3d 718 (9th Cir. 1998), defendant argued that the group’s offense level should be set by the manufacturing count because it carries a greater maximum term of imprisonment (life) than did the endangering life count (10 years). The Eighth Circuit rejected Brinton since the “most serious” of the grouped counts is not the count with the greatest statutory maximum; it is the count with the highest offense level. See USSG § 3D1.3(a) (most serious count is one with “the highest offense level of the counts in the Group”) & Note 2 (when counts are grouped, “the highest offense level of the counts in the group is used”). In concluding that the count with the greatest statutory maximum sentence had the potential to produce this highest offense level, the Brinton court went astray: the statutory maximum may cap the guidelines imprisonment range, but it has no effect on the offense level. The district court here correctly concluded that the endangering life count was the more serious of the grouped counts and correctly used it to set the offense level for the group. U.S. v. Kroeger, 229 F.3d 700 (8th Cir. 2000).
8th Circuit upholds separate grouping of fraud and “reinvestment” money laundering. (470) In U.S. v. O’Kane, 155 F.3d 969 (8th Cir. 1998), the Eighth Circuit held that fraud and money laundering counts cannot be grouped together under § 3D1.2(b) because those crimes have different victims. Defendant argued that O’Kane should be limited to “concealment” money laundering, noting that other circuits have held that the victims of “reinvestment” money laundering are the same as the victims of the underlying fraud. See, e.g., U.S. v. Leonard, 61 F.3d 1181 (5th Cir. 1995); U.S. v. Cusumano, 943 F.2d 305 (3d Cir. 1991). Rejecting these opinions, the Eighth Circuit held that the O’Kane analysis applies to all types of money laundering. Thus the district court properly refused to group defendants’ reinvestment money laundering counts with the underlying fraud counts. While reinvestment money laundering is more closely related to the underlying fraud than other kinds of money laundering, the offenses still entail different proscribed conduct, are punishable on different scales, and harm distinct and different victims. Reinvestment does not make the victim of money laundering the same as the victim of the fraud. Whether the criminal uses the fraud proceeds to buy an item for personal use or to pay promotion costs to further the fraud, money laundering invades society’s interest in deterring and detecting crime. In both cases, the funds have been given the appearance of legitimacy through laundering. U.S. v. Green, 225 F.3d 955 (8th Cir. 2000).
8th Circuit separately groups involuntary manslaughter and assault committed on same night. (470) While driving drunk, defendant collided with another car, killing its driver. He then drove home and assaulted his girlfriend. The Eighth Circuit held that the district court properly grouped separately his convictions for involuntary manslaughter and assault with a dangerous weapon. Where, as here, the offenses involved different victims, were separated in time, and involved dissimilar conduct, grouping is not appropriate and the court retains the discretion to sentence either consecutively or concurrently. USSG § 3D1.2. U.S. v. Waugh, 207 F.3d 1098 (8th Cir. 2000).
8th Circuit holds that counts of harboring of illegal alien belonged in single group. (470) Defendant pled guilty to two counts of harboring an illegal alien and one count of conspiring to do so. He challenged the district court’s imposition of consecutive sentences. The Eighth Circuit held that the district court erred by treating each offense discretely rather than grouping the three counts together into a single group. Section 3D1.2 says that all counts “involving substantially the same harm shall be grouped together into a single Group.” Offenses involve “substantially the same harm” if they “involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.” § 3D1.2(b). In the present case, all three counts involved “substantially the same harm” because all three involved the same alien, substantially the same time frame (1994-1997) and the same conduct, the concealment and harboring of the alien in South Dakota. Consequently, the three counts should have been grouped together into a single group. U.S. v. Lewis, 200 F.3d 1177 (8th Cir. 2000).
8th Circuit says acquittal of substantive charge did not mean conspiracy only encompassed other charge. (470) Defendant and an accomplice were implicated in the robberies of two credit unions. Defendant was convicted of conspiring to rob a credit union, armed robbery of the Cloquet credit union, and use of a firearm in that robbery. She contended that her conviction on the conspiracy count, which encompassed both the Duluth and Cloquet robberies, must be read to implicate her in the Cloquet robbery alone, because the jury acquitted her of the armed robbery in Duluth. Thus, she argued the conspiracy conviction and the armed robbery encompassed the same victim and transaction and should have been grouped together under § 3D1.2(a). The Eighth Circuit disagreed. It is not inconsistent for a jury to convict a defendant of conspiring to commit a crime, yet acquit the defendant of committing the same crime. Moreover, even if there was an inconsistency, the Eighth Circuit refused to attempt to decipher the significance of inconsistent verdicts. U.S. v. Villiard, 186 F.3d 893 (8th Cir. 1999).
8th Circuit says money laundering and fraud counts should have been grouped separately. (470) Defendant, a baseball card collector, worked as an assistant manager of a grocery store. He ordered large volumes of cards on the store account, intercepted the shipments, took them home, sold some, and kept the remainder. He intercepted payments from dealers, deposited them into various bank accounts under his control, and used a portion of his ill-gotten gains to purchase a computer and a pickup truck. He pled guilty to fraud and money laundering. The Eighth Circuit held that the district court erred by grouping the fraud count together with the money laundering count. The counts could not be grouped under § 3D1.2(b), which requires that the same person or entity be the victim of both crimes. Defendant’s employer was the victim of his fraud. However, the victim of the money laundering was society–money laundering harms society’s interest in discovering and deterring criminal conduct. The court rejected defendant’s claim that the counts should be grouped because his act of money laundering involved the purchase of a truck that he used to facilitate his fraud. Defendant began his fraud and money laundering activities over a year before he purchased the pickup truck. Also, he pled guilty to a violation of 18 U.S.C. § 1957, a less serious form of money laundering that does not require the laundering activity to promote the underlying crime. U.S. v. O’Kane, 155 F.3d 969 (8th Cir. 1998).
8th Circuit groups insurance fraud separately from obtaining controlled substances by fraud. (470) Defendant staged “slip and fall” accidents throughout the country, gained admission to local hospitals complaining of pain, sought and received controlled substances, and submitted liability insurance claims to the insurance carriers for the businesses in which he claimed to have fallen. The Eighth Circuit upheld separate grouping of one count of wire fraud stemming from an incident in which defendant contacted an insurance company by phone to seek a monetary settlement for a staged accident and another count where defendant obtained controlled substances from a hospital by falsely claiming to have been injured in a staged accident. The separate grouping did not result in double counting. The § 2F1.1(b)(2) enhancement to the insurance fraud count for defrauding more than one victim did not result from considering the victim of the narcotics fraud. The indictment incorporated by reference a chart summarizing all of defendant’s fraudulent hospital admissions. The victim of the narcotics count was just one of many defendant’s victims. The district court also did not improperly double count loss. U.S. v. Heath, 122 F.3d 682 (8th Cir. 1997).
8th Circuit finds no ex post facto violation where one of grouped offenses occurred after guideline amendment. (470) Defendant was convicted of three counts of being a felon in possession of a firearm. Defendant argued that the district court violated the ex post facto clause in applying the November 1991 guidelines to him. The Eighth Circuit originally found no ex post facto violation, but the Supreme Court vacated and remanded for further consideration in light of Calif. Dept. of Corrections v. Morales, 115 S.Ct. 1597 (1995). The Eighth Circuit concluded that Morales did not alter the result in this case. Morales held that to violate the ex post facto clause, a change in the law must increase the penalty by which a crime is punishable, and not merely disadvantage the offender. Here there was no question that the November 1991 guidelines increased defendant’s sentence. The reason the increase did not violate the ex post facto clause was that his offenses were grouped under § 3D1.2, and the last of the groupable offense occurred after the new guidelines went into effect. U.S. v. Cooper, 63 F.3d 761 (8th Cir. 1995).
8th Circuit holds incorrect concurrent term was harmless error. (470) Defendant pled guilty to a gambling conspiracy and money laundering. The gambling offense carried a guideline range of 12-18 months, and the money laundering offense a range of 46-57 months. The district court mistakenly imposed 46-month concurrent terms for each count. The Eighth Circuit held that the error was harmless. Any miscalculation as to his gambling sentence was not ripe for adjudication. If defendant becomes entitled to a reduction in his money laundering sentence under revised future guidelines, he may, as part of his motion before the district court, ask the district court to correct the combined sentence. U.S. v. Nguyen, 46 F.3d 781 (8th Cir. 1995).
8th Circuit holds failure to appear, contempt, and false passport should have been grouped together. (470) Defendant failed to appear at a hearing about a pending charge. Instead, he used a false passport to exit and re-enter the country. The 8th Circuit held that the district court erroneously failed to group under § 3D1.2(b) the counts for failure to appear, contempt of court, and use of a false passport. The government acknowledged that all three counts related generally to defendant’s conduct in jumping bond. Because the government failed to show any distinction between the three counts based on the victim of the crime, all counts involved substantially the same harm under § 3D1.2(b). U.S. v. Reetz, 18 F.3d 595 (8th Cir. 1994).
8th Circuit remands because judge mistakenly believed that defendant was subject to separate sentence for each drug count. (470) Defendant was convicted of two counts of distributing heroin. Based on the 37 grams of heroin involved in the two sales, defendant had a base offense level of 18 and a guideline range of 27 to 33 months. The court sentenced defendant to 33 months on each count to be served concurrently. The 8th Circuit remanded for resentencing, because the district court mistakenly believed that defendant was subject to a sentence of 27 to 33 months on each count, when in fact, the two counts had been grouped together and the sentencing range was based on the aggregate amount of heroin involved in both sales. The appellate court did not believe the district court would have imposed the same sentence had it not mistakenly believed that defendant was subject to a sentence of 27 to 33 months on each count. U.S. v. Gordon, 974 F.2d 97 (8th Cir. 1992).
8th Circuit upholds refusal to group child pornography counts. (470) The district court refused to group two child pornography counts together for sentencing purposes. Although the two counts involved pictures of two different children, defendant argued that the counts should have been grouped because the primary victim was the same in both counts: society. The 8th Circuit affirmed the district court’s refusal to group the two counts. Analyzing the legislative history of the child pornography laws, the court found that the primary victim of these crimes was the child, not society. Because the crimes involved two different victims, grouping would have been improper. Moreover, the fact that the pictures were received on different dates required a finding of separate crimes because the act of shipping or receiving the pornography is the focus of offense. U.S. v. Rugh, 968 F.2d 750 (8th Cir. 1992).
8th Circuit refuses to group perjury with underlying offense absent obstruction enhancement. (470) Defendant was convicted of mail fraud. He was later convicted of four counts of suborning perjury during the mail fraud trial. The 8th Circuit rejected his contention that the district court should have grouped his perjury conviction with his prior mail fraud conviction. If an obstruction offense has been used to adjust the sentence for a related offense, the court is required to group that offense with the related offense even when the two offenses were separately charged, tried and sentenced. However, in this case, defendant did not receive an obstruction enhancement for his mail fraud conviction. Thus, his obstruction of justice was not doubly counted. U.S. v. Lincoln, 956 F.2d 1465 (8th Cir. 1992).
8th Circuit rules no double jeopardy in conviction of jury tampering and enhancement for obstruction of justice. (470) Defendant was convicted of fraudulently selling cattle and timber. As a result of his efforts to improperly influence two of the jurors in his case, defendant received a two-level enhancement for obstruction of justice. He was then convicted of jury tampering, but the district court voided the jury tampering sentence because it thought that such a sentence would constitute double jeopardy, since the fraud sentence had been enhanced on the basis of jury tampering. The 8th Circuit reversed. The defendant was not put “in jeopardy” for the jury tampering until the actual trial for jury tampering. Defendant merely received a harsher sentence for the fraud offense that he otherwise would have received. The guidelines handle this situation in § 3D1.2(c), which provides that when conduct that represents a separate count, such as obstruction of justice, is also a specific offense characteristic or other adjustment to another count, the count represented by the conduct is to be “grouped” with the count to which it constitutes as aggravating factor. Thus, the guidelines required the grouping of the cattle case and the jury tampering case. U.S. v. Williams, 935 F.2d 1531 (8th Cir. 1991).
8th Circuit upholds obstruction enhancement for defendant’s escape from custody. (470) Defendant escaped from custody after being arrested for bank robbery. He was convicted of both armed robbery and escape from federal custody. Defendant contended that it was improper to increase his offense for obstruction of justice based upon the escape. The 8th Circuit rejected this argument, but did find that the district court erred in calculating defendant’s offense level. The court did not group the two counts, resulting in a combined adjusted offense level of 20, to which the district court added two points for obstruction of justice. The two counts should have been grouped together under guidelines § 3D1.2(c), which provides for grouping when one count embodies conduct that is treated as an adjustment to another count. This is to prevent “double counting” of offense behavior. Once the counts were grouped, defendant only had a base offense level of 19, which did not reflect any increase based on his escape. Then it was proper to add two points to the offense level for his obstruction of justice. U.S. v. Hankins, 913 F.2d 1256 (8th Cir. 1991).
8th Circuit upholds accumulating the value of all stolen goods and transactions for which codefendants were indicted. (470) Defendant was a participant in a stolen goods ring involving several other people. Defendant argued that it was improper to accumulate the value of all stolen goods and transactions for which his codefendants were indicted. The 8th Circuit rejected this contention, finding that guidelines § 1B1.3(a)(2) authorized the district court to consider amounts beyond those to which defendant pled guilty. Defendant relied upon the commentary to 1B1.3, which provides that in a robbery case in which a defendant robbed two banks, money taken in one robbery cannot be considered in determining the guidelines range for the other robbery. The 8th Circuit found defendant’s reliance to be misplaced, since robbery is not an offense to be grouped together under 3D1.2(a)(2). However, possession of stolen property is an offense grouped together. U.S. v. Russell, 913 F.2d 1288 (8th Cir. 1990).
8th Circuit finds that forgery and possession of stolen mail were properly grouped together. (470) Defendant was involved in stealing and forging United States treasury instruments and pled guilty to forgery and possession of stolen mail. The 8th Circuit found that since both counts arose from defendant’s theft of the treasury instruments, the counts were sufficiently linked to group them together under guideline § 3D1.2(d). U.S. v. Manuel, 912 F.2d 204 (8th Cir. 1990).
8th Circuit reverses upward departure based upon defendant’s escape. (470) Defendant escaped while in custody on a robbery charge. He was apprehended and eventually pled guilty to both the robbery and escape charges. The offense level for the robbery charge was 22 and for the escape charge 13, for a combined offense level of 22. The district judge sentenced defendant to eight years for the robbery, and departed upward an additional two years for the escape, stating that an eight year guideline sentence for armed robbery was too lenient, and that absent the guidelines, he would have sentenced defendant to 15 years. The 8th Circuit reversed. The guidelines merged defendant’s escape charge into his robbery charge, preventing the district court from imposing a separate sentence for the escape charge. The Sentencing Commission determined how to calculate an offense level when multiple offenses are sentenced in the same proceeding. The judge’s belief that defendant deserved a stiffer sentence did not justify the departure. U.S. v. Cox, 921 F.2d 772 (8th Cir. 1990).
8th Circuit finds offenses arising out of same transaction are not closely related. (470) Defendant who arranged an exchange of food stamps for cocaine pled guilty to one count of illegal acquisition and one count of cocaine distribution. The presentence report recommended the two counts not be grouped together under guideline § 3D1.2 and the sentencing judge accepted the recommendation. On appeal, the 8th Circuit affirmed the sentence, holding that since the offenses involved separate and distinct societal interests (drug abuse prevention and reduction of fraud and abuse in food stamp acquisition) they were not required to be linked together as closely related counts. U.S. v. Egson, 897 F.2d 353 (8th Cir. 1990).
8th Circuit holds three separate bank robberies of the same bank are not to be grouped as a single offense. (470) Defendant was convicted of three counts of armed bank robbery after he robbed the same branch of a savings and loan association on three separate occasions. He argued that the sentencing court erred in increasing his combined offense level under § 3D1.2(b) because the fact that the robberies involved the same financial institution meant that they were a single, closely related group. The 8th Circuit rejected the argument. Section 3D1.2(b) applies only to a single criminal act that results in multiple charges. Defendant’s robberies were separate and distinct criminal acts committed several weeks apart and therefore were not a single offense. U.S. v. Moore, 877 F.2d 651 (8th Cir. 1989).
8th Circuit upholds obstruction enhancement for defendant’s escape from custody. (470) Defendant escaped from custody after being arrested for bank robbery. He was convicted of both armed robbery and escape from federal custody. Defendant contended that it was improper to increase his offense for obstruction of justice based upon the escape. The 8th Circuit rejected this argument, but did find that the district court erred in calculating defendant’s offense level. The court did not group the two counts, resulting in a combined adjusted offense level of 20, to which the district court added two points for obstruction of justice. The two counts should have been grouped together under guidelines § 3D1.2(c), which provides for grouping when one count embodies conduct that is treated as an adjustment to another count. This is to prevent “double counting” of offense behavior. Once the counts were grouped, defendant only had a base offense level of 19, which did not reflect any increase based on his escape. Then it was proper to add two points to the offense level for his obstruction of justice. U.S. v. Hankins, 913 F.2d 1256 (8th Cir. 1991).
9th Circuit rejects grouping of fraud and mailbox bombing counts. (470) Defendant engaged in a scheme to defraud victims of a financial fraud scheme. In an effort to show that he had information relevant to the victims and that others were trying to prevent him from disclosing that information, he used a pipe bomb to blow up his own mailbox. Defendant was convicted of wire fraud, extortion, possession of a pipe bomb, destruction of the mailbox, and false statements to federal investigators investigating the mailbox destruction. The district court grouped all of these counts on the theory that they involved substantially the same harm. The Ninth Circuit reversed, holding that the fraud and extortion charges should not be grouped with the charges related to the mailbox bombing. U.S. v. Williams, 693 F.3d 1067 (9th Cir. 2012).
9th Circuit reverses improper calculation of multiple count “units.” (470) Defendant was convicted of misprision of a felony and assault resulting in substantial bodily injury. Relying on § 3D1.4, the district court properly assigned one unit to the misprision count, and zero units to the assault conviction. However, the court then improperly added one level to the adjusted offense level for the misprision count. This was error and required remand for resentencing. U.S. v. Goodbear, 676 F.3d 904 (9th Cir. 2012).
9th Circuit finds failure to advise on guidelines’ grouping rules was deficient performance. (470) Defendant entered into a plea agreement to resolve his drug-trafficking charges. The agreement stated that the parties would recommend to the district court that defendant’s guidelines offense level be set at 34 and that the government would recommend a three-level reduction for acceptance of responsibility. Applying the guidelines’ grouping provisions, the presentence report (PSR) calculated defendant’s offense level as 38, and it recommended against an acceptance reduction. The district court found that 38 was the correct offense level and sentenced defendant within that range. Defense counsel never moved to withdraw from the plea agreement. Defendant filed a motion under 28 U.S.C. § 2255, and the Ninth Circuit held that counsel’s failure to advise defendant of the effect of the guidelines’ grouping rules constituted constitutionally defective performance and remanded to the district court for a determination of prejudice. U.S. v. Manzo, 675 F.3d 1204 (9th Cir. 2012).
9th Circuit rejects grouping of two separate illegal reentry convictions. (470) Defendant was convicted of two separate violations of illegal reentry after deportation, in violation of 8 U.S.C. §1326. At sentencing, he argued that the two violations should be grouped under §3D1.2(b) because they involved the same “victim.” The Ninth Circuit held that the district court properly declined to group the two convictions because they were not “connected by a common criminal objective” or “part of a common scheme or plan,” as required by § 3D1.2(b). U.S. v. Espinoza-Baza, 647 F.3d 1182 (9th Cir. 2011).
9th Circuit says mandatory minimum for offense is not basis for sentence on other offenses. (470) Defendant was convicted of sexual abuse of a minor, in violation of 18 U.S.C. § 2243(a); sexual exploitation of children, in violation of 18 U.S.C. § 2251(c); and witness tampering, in violation of 18 U.S.C. § 1512(b). The district court calculated defendant’s guidelines range at 31 to 37 months. Because § 2251(c) carries a 10-year minimum mandatory sentence, the district court held that the Guidelines sentence for all three offenses was 120 months. The court then departed upward and imposed a 160-month sentence on all three counts. The Ninth Circuit held that the district court committed plain error by treating the Guidelines sentence for the violations of § 2243(b) and § 1512 as being 120 months because the Guidelines calculation for those offenses yielded a sentencing range of 30 to 37 months. The court of appeals remanded to allow the district court to impose sentences based on a range of 30 to 37 months. U.S. v. Evans-Martinez, 611 F.3d 635 (9th Cir. 2010).
9th Circuit declines to grant relief for error in grouping that did not affect sentence. (470) Defendant was convicted of attempted travel with intent to engage in illicit sexual conduct (18 U.S.C. § 2423(b)) and two counts of using a facility of interstate commerce to entice a minor to engage in criminal sexual acts (18 U.S.C. § 2422(b)). The indictment alleged that the victims of the two § 2422(b) counts were also the victims of the § 2423(b) count. At sentencing, the district court declined to group these counts because it found that the counts involved different victims with different ages. The Ninth Circuit held that because the counts involve common victims, it “may be appropriate” to consolidate the counts into two groups, but it declined to grant defendant relief because grouping the counts would not have changed defendant’s offense level. U.S. v. Seljan, 547 F.3d 993 (9th Cir. 2008).
9th Circuit upholds refusal to group tax and fraud counts. (470) Defendants were convicted of filing fraudulent tax returns, money laundering, and wire and mail fraud. At sentencing, the district court declined to group the tax counts with the money laundering and fraud counts under § 3D1.2, which requires grouping of counts involving the “same harm.” The term “same harm” means, in part, that the counts involve the same victim. The Ninth Circuit upheld the district court’s decision not to group the counts because the victim of the tax fraud was the government, and the victim of the fraud counts were the people whose money defendants fraudulently obtained. U.S. v. Smith, 424 F.3d 992 (9th Cir. 2005).
9th Circuit explains that “total punishment” is any sentence in guideline range. (470) Under the guidelines, the “total punishment” results from the use of the guideline for determining the sentencing range on multiple counts, § 3D1.5. If the maximum sentence for the count carrying the highest statutory maximum is less than the “total punishment,” § 5G1.2(d) instructs the court to run sentences consecutively to achieve the “total punishment.” The en banc Ninth Circuit held that the “total punishment” is not the minimum guideline sentence and instead may be any sentence within the guideline range that the district court chooses to impose. U.S. v. Iniguez, 368 F.3d 1113 (9th Cir. 2004) (en banc).
9th Circuit holds that conspiracy to take multiple hostages should be treated as multiple offenses for grouping. (470) Defendant was convicted of conspiracy to commit hostage taking, in violation of 18 U.S.C. § 1203. The evidence at trial showed that he took 23 illegal aliens hostage and held them for ransom. Guideline 1B1.2 provides that a conspiracy to commit multiple offenses should be treated as a separate count of conspiracy for each offense that the defendant conspired to commit. The grouping rules, § 3D1.2, contain a similar provision. The Ninth Circuit held that a conspiracy to take several hostages should be treated as separate offenses committed against separate victims for purposes of §§ 1B1.2 and 3D1.2. U.S. v. Melchor-Zaragoza, 351 F.3d 925 (9th Cir. 2003).
9th Circuit finds that carjacking, alien smuggling, false statement, and illegal reentry counts should not be grouped. (470) Defendant carjacked a car that was being used to smuggle illegal aliens into the U.S. He was convicted on three counts of alien smuggling, one count of illegal reentry after deportation, one count of making a false statement, and one count of carjacking. The district court grouped the alien smuggling counts, but declined to group the remaining counts. The Ninth Circuit affirmed, holding that the carjacking count had different victims (the alien smugglers) than the alien smuggling counts; that the illegal reentry offense caused a harm different from the other offenses; and that the false statement count injured different societal interests than those affected by the other counts. U.S. v. Gastelum-Almeida. 298 F.3d 1167 (9th Cir. 2002).
9th Circuit rules that counts involving threats to multiple victims should not be grouped. (470) Defendant was convicted of multiple counts of interstate communication of threats based on his threats to several different people. Commentary to the guideline for this offense, § 2A6.1, states that multiple counts involving threats to multiple victims should not be grouped under § 3D1.2. The Ninth Circuit held that the district court properly followed this note and declined to group counts involving different victims. U.S. v. Alexander, 287 F.3d 811 (9th Cir. 2002).
9th Circuit holds mandatory minimum applies to third immigration offense in same indictment and overrides grouping rules. (470) Under 8 U.S.C. § 1324, smuggling aliens into the U.S. for financial gain is subject to a 3-year mandatory minimum sentence for the first and second violations and to a 5-year mandatory minimum for a third violation. The Ninth Circuit held that defendant’s conviction on three counts charged in the same indictment triggered the statutory minimum sentence. Because the mandatory minimum determined defendant’s sentence, the court held that it did not need to consider defendant’s contention that all of the smuggling offenses should have been grouped. U.S. v. Tsai, 282 F.3d 690 (9th Cir. 2002).
9th Circuit finds no double counting in role increase for ungrouped money laundering and fraud offenses. (470) Defendant was convicted of money laundering and fraud. At sentencing, the district court, refused to “group” the counts, following then-binding Ninth Circuit law. Although the district court found that there was “no question” that defendant was a leader of both the money laundering and fraud offenses, it found that applying the role enhancement to both the money laundering and fraud counts would be improper double counting. The Ninth Circuit held that under the 2001 guidelines amendments, the district court should group the fraud and money laundering counts only if it found that the laundered funds were the proceeds of the fraud. It held, however, that if the district court did not group the money laundering and fraud counts, it would not constitute impermissible double counting to apply a role-in-the-offense enhancement to both counts. U.S. v. Martin, 278 F.3d 988 (9th Cir. 2002).
9th Circuit holds ACCA is not facially unconstitutional but Apprendi bars use of juvenile conviction as a predicate offense. (470) Defendant pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). At sentencing, the district court found he had three prior convictions for “violent felonies” and imposed a 15-year mandatory sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). One prior felony was a juvenile adjudication for reckless endangerment, robbery, and unauthorized use of a vehicle. The Ninth Circuit held that § 924(e) is not facially unconstitutional because Apprendi v. New Jersey, 530 U.S. 466 (2000) held that prior convictions are exempt from the rule that facts that increase a prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. It concluded, however, that juvenile adjudications do not fall within the prior-conviction exception to Apprendi because the juvenile has no right to a jury trial and proof beyond a reasonable doubt. It also found that the error was not harmless because it increased defendant’s sentence above the otherwise applicable statutory maximum. Because the Guidelines grouping rules increased defendant’s overall offense level based on the length of his sentence on § 922(g) count, the court also vacated his sentence on a drug conspiracy count. Judge Brunetti dissented. U.S. v. Tighe, 266 F.3d 1187 (9th Cir. 2001).
9th Circuit declines to group fraud and money laundering counts. (470) Defendant fraudulently induced investors to send him over $4.5 million, of which approximately $1.78 million was invested into the scheme. He was convicted of both money laundering and fraud. He argued that under § 3D1.2(d), the district court should have grouped these counts together at sentencing. The Ninth Circuit rejected the argument, noting that U.S. v. Taylor, 984 F.2d 298 (9th Cir. 1993) and U.S. v. Hanley, 190 F.3d 1017, 1033 (9th Cir. 1999) held that fraud and money laundering counts should not be grouped for sentencing because the guidelines for fraud and money laundering “measure harm differently.” The court distinguished U.S. v. Rose, 20 F.3d 367 (9th Cir. 1994) on the ground that in that case there was “complete identity” between the laundered and the fraudulently obtained funds. The panel also rejected defendant’s argument that the counts should have been grouped under § 3D1.2(b), rather than (d) which requires grouping where the counts “involve the same victim” or a “common scheme or plan.” The offenses did not involve the same victim because “society” is the victim of money laundering. U.S. v. Syrax, 235 F.3d 422 (9th Cir. 2000).
9th Circuit counts sex offenses separately, refusing to group them. (470) Defendant argued that the district court erred in imposing consecutive sentences for his convictions of sexual abuse of a minor under 18 U.S.C. § 2243(a) and abusive sexual contact with a minor under § 2244(a)(3) because both involved the same victim and substantially the same harm. Thus, he claimed they should have been grouped together and a single sentence imposed. The Ninth Circuit rejected the argument, noting that guideline § 3D1.2(d) specifically excludes offenses in Chapter 2, Part A of the guidelines, including defendant’s convictions. Thus, the grouping sought by the defendant was not permitted by the guidelines. U.S. v. Archdale, 229 F.3d 861 (9th Cir. 2000).
9th Circuit groups drugs and firearms separately because they affect different societal interests. (470) Defendant was convicted of two conspiracy counts, one relating to the distribution of illegal drugs, and the other to the possession and sale of stolen firearms. Defendant argued that the district court should have grouped these two offenses under guideline § 3D1.3, thus reducing his total offense level by one level. The Ninth Circuit rejected the argument, noting that although both offenses involved the same victim, society at large, they involved separate societal interests. The drug conspiracy affected society’s interest in drug abuse prevention, whereas the stolen firearm’s offense involved society’s interest in preventing theft of private property, and more importantly, in “preventing the loss of ‘personal safety’ resulting in the sorts of violent physical assault that are facilitated by the proliferation of unregistered weapons amongst an overwhelmingly criminal population.” U.S. v. Nanthanseng, 221 F.3d 1082 (9th Cir. 2000).
9th Circuit says exclusion of pornography offenses from § 3D1.2(d), does not preclude grouping. (470) Child pornography offenses punishable under § 2G2.1 are excluded from grouping under § 3D1.2(d). Nevertheless, the Ninth Circuit held that the district court erred in concluding that multiple counts punishable under § 2G2.1 can never be grouped. This ignores the last sentence of § 3D1.2(d), which states that “[e]xclusion of an offense from grouping under this subsection does not necessarily preclude grouping under another subsection.” The case was remanded to permit the district court to reconsider whether defendant’s conduct could be grouped under § 3D1.2(a), (b), or (c). U.S. v. Tank, 200 F.3d 627 (9th Cir. 2000).
9th Circuit upholds abuse of trust increase for money laundering even though it was inherent in extortion. (470) Defendant was convicted of extortion under color of official right, as well as money laundering. Because the money laundering guideline was higher, the district court ignored the extortion guideline when the two were “grouped” under § 3D1.3(b). On appeal, defendant argued that a § 3B1.3 abuse of trust enhancement was improper double counting because extortion under color of official right inherently involves an abuse of position of trust. The Ninth Circuit rejected the argument, because, under § 3D1.3(b), the extortion count was ignored in setting the base offense level, so it was proper to increase for abuse of position of trust. The court distinguished U.S. v. Calozza, 125 F.3d 687 (9th Cir. 1997) on the ground that the district court in Calozza used the enhancement twice when it only should have used it once. U.S. v. Smith, 196 F.3d 1034 (9th Cir. 1999).
9th Circuit refuses to “group” wire fraud and money laundering counts. (470) In U.S. v. Taylor, 984 F.2d 298, 303 (9th Cir. 1993), the Ninth Circuit held that because “the guidelines for wire fraud and money laundering measure harm differently … the dismissed wire fraud count cannot be grouped with the monetary transaction count under § 3D1.2(d).” In the present case, however, defendants argued that U.S. v. Rose, 20 F.3d 367 (9th Cir. 1994) created an exception to Taylor where there is a “complete identity” between the fraudulently obtained funds and the laundered funds. The Ninth Circuit rejected the argument, holding that Rose simply permits trial courts to treat fraudulently derived funds as “relevant conduct” for sentencing purposes under § 2S1.1 when such funds are coextensive with the sums involved in money laundering. However, “Rose does not require grouping in those circumstances.” Accordingly, the district court did not err by refusing to group defendants’ wire fraud and money laundering counts. U.S. v. Hanley, 190 F.3d 1017 (9th Cir. 1999).
9th Circuit holds that common modus operandi alone, does not show that two cases are factually related. (470) Defendant argued that because the 1991 Oregon convictions were “based upon the same course of conduct or common scheme as the instant offense . . . they should have been grouped with the present convictions for purposes of determining defendant’s base offense level rather than added to defendant’s criminal history.” The Ninth Circuit disagreed, reiterating that a “common modus operandi, standing alone, is not sufficient to establish that two cases are factually related.” U.S. v. Davis, 922 F.2d 1385 (9th Cir. 1991). The court applied four factors to determine that the offenses in this case were not related to each other for purposes of applying the multiple count rule in § 3D. The court also rejected defendant’s arguments that the Oregon convictions “should have been considered related cases and treated as one offense” for criminal history purposes under § 4A1.2(a)(2). U.S. v. Allen (98-30002), 153 F.3d 1037 (9th Cir. 1998).
9th Circuit reverses upward departure for multiple counts. (470) Defendant wrecked two vehicles shortly after stealing them. As he was driving off with a third automobile, he struck and killed a person before rolling the stolen car. He was convicted of manslaughter and theft. The offense level for the manslaughter was 14, and under the grouping rules in § 3D1.4, one additional level was added to account for the theft. The district court departed upward by two levels on the ground that defendant’s additional conduct in stealing the cars “should result in a higher offense level.” The Ninth Circuit reversed, concluding that “involuntary manslaughter predominates in seriousness over the theft and destruction of three relatively inexpensive cars, and even if the district court thought otherwise, that is not a sufficient reason to depart.” The additional punishment for additional crimes is already taken into account by § 3D1.4. Under U.S. v. Luscier, 983 F.2d 1507, 1513 (9th Cir. 1993), the correct course is a sentence in the upper regions of the guidelines range rather than a departure. U.S. v. G.L., 143 F.3d 1249 (9th Cir. 1998).
9th Circuit holds that “victim” of child pornography is the individual child depicted in the image. (470) Defendant was convicted of distributing child pornography in violation of 18 U.S.C. § 2252(a)(1). Under guideline § 3D1.2(b) separate crimes may be “grouped” when they (1) “involve the same victim” and (2) are “connected by a common criminal objective or constitut[e] part of a common scheme or plan.” The district court ruled that the victim of the crime of distributing pornography was the child depicted in the photograph, and therefore it refused to “group” the substantive counts because they depicted “different children.” On appeal the Ninth Circuit affirmed, rejecting defendant’s argument that the victim of child pornography is “society at large.” The court agreed with the government that the children depicted in the pornographic images are themselves the victims of the distribution of those images. Accordingly, the district court properly increased defendant’s sentence by five levels under § 3D1.4. The Ninth Circuit thus agreed with the Third and Eighth Circuits, and disagreed with the Fourth Circuit. U.S. v. Boos, 127 F.3d 1207 (9th Cir. 1997).
9th Circuit adopts rule to decide what “group” furnishes the base offense level. (470) Under guideline section 3D1.4 the rule for choosing which group furnishes the base offense level is to use “the offense level applicable to the Group with the highest offense level.” In this case, defendant argued that the fraud guideline rather than the money laundering guideline, should have been used to set the base offense level because the vulnerable victim and abuse of position of trust adjustments should have been considered only with respect to fraud. The Ninth Circuit rejected this argument, relying on U.S. v. Duran, 15 F.3d 131, 134 (9th Cir. 1994), and U.S. v. Haggard, 41 F.3d 1320 (9th Cir. 1994). Under these cases, “the test for whether such adjustments as vulnerable victim and abuse of position of trust can be applied is whether they are ‘relevant conduct’ as defined by the guidelines, not whether they apply to the victim or the criminal’s position with respect to the crime to which the adjustments are being applied.” Because defendant’s money laundering was relevant conduct to his offense of fraud, it was proper to use money laundering as the base offense level and apply the adjustments to that offense level. U.S. v. Calozza, 125 F.3d 687 (9th Cir. 1997).
9th Circuit requires “grouping” drug and money laundering counts. (470) Rejecting the Fifth and Eleventh Circuit opinions in U.S. v. Gallo, 927 F.2d 815, 824 (5th Cir. 1991) and U.S. v. Harper, 972 F.2d 321, 322 (11th Cir. 1992), the Ninth Circuit held that defendant’s convictions for money laundering and conspiracy to distribute marijuana and cocaine should have been “grouped” under guideline § 3D1.2, thereby reducing his sentence. Both offenses were victimless crimes that involved the same victim because “the societal interests that are harmed are closely related.” Moreover, both crimes were “connected by a common criminal objective.” Defendant “laundered money to conceal the conspiracy’s drug trafficking and thus facilitated the accomplishment of the conspiracy’s ultimate objective of obtaining the financial benefits of drug trafficking.” Judge Fernandez dissented, arguing that a person who has committed both offenses “has earned a sentence which is measurably greater than the sentence earned by a person who committed only one crime.” U.S. v. Lopez, 104 F.3d 1149 (9th Cir. 1997).
9th Circuit upholds grouping 17 false statement convictions into 6 groups. (470) Defendant, a DEA informant, was convicted of seventeen counts of making false statements to the DEA in violation of 18 U.S.C. § 1001. The district court grouped these seventeen counts into six groups after analyzing his offenses under several categories: the number of persons accused of drug involvement, the number of drug transactions, the number of locations where investigations were carried out, and the number of individuals and agencies lied to. Six was the lowest number of groups under these categories. Giving due deference to the district court’s application of guideline § 3D1.2(b) to the facts, the Ninth Circuit affirmed the court’s finding of six groups. U.S. v. Edmonds, 103 F.3d 822 (9th Cir. 1996).
9th Circuit refuses to “group” attempted sexual abuse counts despite fictional “victims.” (470) Defendant was caught in a “sting” operation when he attempted to meet with three fictional juveniles to engage in sexual abuse. He argued that the three counts of conviction should have been “grouped” under § 3D1.2 because there were no real victims, so the only victim was society. The Ninth Circuit rejected the argument, noting that sexual abuse offenses are specifically excluded from the grouping provisions of § 3D1.2(d). In addition, if the victims had been available, they, rather than society in general would have been harmed. Therefore this was a crime against specific victims. Moreover these were crimes of violence and due to their dangerous nature, attempts are treated the same as completed criminal acts. Therefore grouping was not appropriate. U.S. v. Butler, 92 F.3d 960 (9th Cir. 1996).
9th Circuit finds it improper to dismiss for preindictment delay even if delay might increase total sentence. (470) The FBI ran a sting operation videotaping traffickers in stolen goods. Defendant pled guilty in 1993 stipulating that his relevant conduct would be limited to $60,000 worth of toys. He was sentenced to 8 months in custody. Thereafter, the government sorted through more of the videotapes from the sting operation and indicted him for selling stolen cookie jars, frozen shrimp, sweaters and VCRs worth $4 million. The district court dismissed the new indictments for preindictment delay finding that defendant was prejudiced because (1) he would not get the benefit of the “multiple count” rule under the guidelines, (2) he did not get “good time” credits on his 8 months sentence because it was less than a year, (3) two separate convictions and separate sentences might have exposed him to harsher sentences if he committed more crimes in the future, and (4) at the trial on the new indictments, the government would be able to impeach him with his conviction in the stolen toys case. The Ninth Circuit reversed, finding that the prejudice was either speculative, or could be accommodated by departures from the sentencing guidelines. U.S. v. Martinez, 77 F.3d 332 (9th Cir. 1996).
9th Circuit permits consecutive sentences even though pre-guidelines conduct was counted twice. (470) In an earlier opinion in this case, U.S. v. Scarano, 975 F.2d 580 (9th Cir. 1992) the Ninth Circuit relied on U.S. v. Niven, 952 F.2d 289 (9th Cir. 1991), to hold that consecutive sentences for pre-and post-guidelines fraud conduct violated the double jeopardy clause because the pre-guidelines conduct was counted as relevant conduct in the sentence for the post-guidelines count. On remand, a different judge again imposed consecutive sentences. On appeal, the Ninth Circuit held that the Supreme Court’s opinion in Witte v. U.S., 515 U.S. 389, 115 S.Ct. 2199 (1995), had overruled Niven, Scarano, and U.S. v. Caterino, 29 F.3d 1390, 1396 (9th Cir. 1994). Witte held that the use of relevant conduct to increase the punishment for a charged offense within statutory limits does not “punish” the offender for the relevant conduct for double jeopardy purposes. Similarly, in the present case, the fact that defendant’s pre-guidelines fraud conduct was counted as relevant conduct in setting his offense level on the guidelines count did not prevent the district court from making his sentence on the pre-guidelines count consecutive to the guidelines count. U.S. v. Scarano, 76 F.3d 1471 (9th Cir. 1996).
9th Circuit says “instant offense” includes counts that are “grouped” with instant offense. (470) After defendant committed mail fraud, he was placed on state probation for an unrelated offense. Thereafter, he was indicted and pled guilty to the mail fraud and to failing to appear on the mail fraud charge. At sentencing, these two counts were “grouped” together under 3D1.2(c) and he was assessed two criminal history points under 4A1.1(d) for committing the “instant offense” while on probation. Defendant argued that because the two offenses were “grouped” as required by Note 3 to 2J1.6, the offense of failing to appear was simply an “adjustment” to the mail fraud offense. Therefore, he argued, the “instant offense” was mail fraud, and since he was not on probation when he committed the mail fraud, it was improper to assess two criminal history points for committing the “instant offense” while on probation. In a 2-1 decision with Judge Reinhardt dissenting, the 9th Circuit found no merit in this argument, holding that the failure to appear offense remained part of the “instant offense” even after being “grouped” with the mail fraud offense. U.S. v. Buchanan, 59 F.3d 914 (9th Cir. 1995).
9th Circuit says rape and murder should have been “grouped” together. (470) Defendant struck a woman with his pickup truck and then raped her before she died of her injuries. The district court imposed concurrent life sentences for felony murder and aggravated sexual abuse. On appeal, the 9th Circuit held that this was improper double counting. The two offenses should have been “grouped” together under § 3D1.2 as one criminal episode. Example (2) of commentary note 3 indicates that grouping is appropriate for murder and aggravated sexual abuse where, as here, “they are inflicted contemporaneously on a single victim in an essentially single composite harm.” U.S. v. Chischilly, 30 F.3d 1144 (9th Cir. 1994).
9th Circuit says two counts were not so closely related as to require “grouping.” (470) Defendant argued that his conviction for being a felon in possession of a firearm was “closely related” to his conviction for threatening the life of the President, and therefore the two counts should have been “grouped” under §3D1.2(c). The 9th Circuit found no error, even though the district court relied on defendant’s possession of the gun to enhance his sentence for threatening the life of the President. The two offenses posed threats to “distinct and separate societal interests,” and therefore were properly treated separately. U.S. v. Hines, 26 F.3d 1469 (9th Cir. 1994).
9th Circuit says four immigration counts should have been grouped together. (470) Defendant was convicted of four counts of possession of false immigration documents in violation of 18 U.S.C. §§ 1028 and 1546. The district court grouped count 1 separately from count 3 because it involved a separate sale of documents. The 9th Circuit reversed, holding that all four offenses should have been grouped together under U.S.S.G. §3D1.2(d), because all offenses were covered by the fraud guideline, §2F1.1. The court noted that the last section of §3D1.2(d) requires grouping when (1) the offense behavior is continuous in nature and (2) the offense guideline is written to cover such behavior. Here the conduct was continuous and the guideline was clearly written to cover the offense behavior. U.S. v. Buenrostro-Torres, 24 F.3d 1173 (9th Cir. 1994).
9th Circuit upholds grouping of fraud and money laundering funds. (470) Two defendants were convicted of various fraud and money laundering counts arising out of fraudulent money lending and laundering activities of two companies they organized and operated. In determining the “value of funds” laundered under § 2S1.1(b)(2)(G), the district court “grouped” under § 3D1.2(d) the moneys involved in the fraud and money laundering counts including uncharged amounts. The Ninth Circuit upheld this calculation, finding all the moneys were relevant conduct. This case was distinguished from U.S. v. Taylor, 984 F.2d 298 (9th Cir. 1993) and U.S. v. Johnson, 971 F.2d 562 (10th Cir. 1992) where the courts precluded grouping of fraud and money laundering offenses. In those cases, the money schemes were related, but not relevant conduct. U.S. v. Rose, 20 F.3d 367 (9th Cir. 1994).
9th Circuit finds no requirement to make finding of object of conspiracy before grouping. (470) The 1989 version of Note 9 to §3D1.2(b)(1) (now Note 5 to §1B1.2(d)) provided that the district court should group each substantive offense with a conspiracy count only “if the court . . . would convict the defendant of conspiring to commit that object offense.” Without objecting below, defendants argued on appeal that it was error to apply the grouping rules because the district court did not expressly state that it would have found defendants guilty beyond a reasonable doubt of conspiring with respect to each substantive offense. The 9th Circuit rejected the argument, finding that in the absence of an objection, there is no reason to require an express finding on the record. The Application Note does not suggest that a finding must be placed on the record before grouping may proceed. U.S. v. Reese, 2 F.3d 870 (9th Cir. 1993).
9th Circuit reverses departure for assaults that were “disregarded” under the “grouping” rules. (470) The 9th Circuit noted that the court’s decision to depart was unquestionably influenced by the fact that under the “grouping” rules in 3D1.4(c), the two assaults would be “disregarded” in determining defendant’s combined base offense level because they were more than nine offense levels below the level for his second degree murder offense. The district court believed the assaults should not go unrecognized in the offense level. However, by adding one point for each of the two assaults, the district court gave defendant an offense level equivalent to what he would have received if he had committed two additional offenses of seriousness equal to or only slightly less than that of the murder. Thus, the departure distorted the guidelines. Defendant’s sentencing range from 188 to 235 months offered the district court “adequate opportunity” to take the assaults into account. The departure was reversed. U.S. v. Luscier, 983 F.2d 1507 (9th Cir. 1993).
9th Circuit finds contemporaneous aggravated assaults should be grouped together. (470) Defendant was convicted of two counts of aggravated sexual abuse after twice raping his victim. Defendant first dragged the victim out of his vehicle and raped her on the ground. Immediately thereafter he made her move to the hood of the car where he raped her again. The district court found the two counts were separate and not “grouped” for sentencing purposes. The 9th Circuit reversed, finding the commentary to section 3D1.2(b) focuses on the timing of assaultive conduct and requires grouping of multiple but contemporaneous assaultive offenses. The two rapes were contemporaneous. The majority also found “good reason” to amend the guidelines to avoid giving defendants a “free rape.” The concurring judge objected to placing too much emphasis on elapsed time and found the proper inquiry is whether the two counts were connected by a common criminal objective. Here there was a single course of conduct with a common criminal objective and the counts should have been grouped. U.S. v. Sneezer, 983 F.2d 920 (9th Cir. 1992).
9th Circuit groups separate instances of child pornography separately. (470) The 9th Circuit upheld the presentence report’s conclusion that counts I and IV of the indictment represented “factually unrelated instances of the same type of conduct occurring months apart, involving separate photographs or videotapes of different minors and are, therefore, not grouped.” The 9th Circuit held this was proper because the offense behavior was “not continuous” within the meaning of U.S.S.G. section 3D1.2(d). The court agreed with the 5th Circuit’s decision in U.S. v. Gallardo, 915 F.2d 149, 151 (5th Cir. 1990), that “each separate use of the mail to transport or ship child pornography should constitute a separate crime because it is the act of either transporting or shipping that is the central focus of this statute.” U.S. v. Cipollone, 951 F.2d 1057 (9th Cir. 1991).
9th Circuit holds that possession of counterfeit notes and unregistered silencer were not groupable. (470) The district court correctly ruled that possession of counterfeit notes and possession of an unregistered silencer were not groupable under guideline section 3D1.2, which requires that the two counts involve “substantially the same harm.” The 9th Circuit found that the societal interest invaded by each offense was very different. “Counterfeiting undermines the integrity of the nation’s currency and perpetrates a fraud on the merchants who receive counterfeit notes. Possession of an unregistered silencer threatens personal safety.” U.S. v. Kayfez, 957 F.2d. 677 (9th Cir. 1992).
9th Circuit reverses multiple vulnerable victim enhancements for single fraud. (470) The defendants were convicted of mail fraud. The court increased each defendant’s offense level by four points, two points for each of two vulnerable victims. On appeal the 9th Circuit reversed, noting that under the guidelines, fraud is an offense for which multiple counts are aggregated into one group for sentencing purposes. The introductory commentary to the multiple count section of the guidelines, Chapter 3, Part D, provides that any specific offense characteristics must be applied to the conduct “taken as a whole.” That is they must be applied to the overall scheme rather than by reference to individual counts or victims. Thus, the court held that the vulnerable victim adjustment may be counted only once for convictions arising out of a single fraudulent scheme. The court found it unnecessary to determine whether exploitation of numerous vulnerable victims could support an upward departure under section 5K2.0. U.S. v. Caterino, 957 F.2d. 681 (9th Cir. 1992).
9th Circuit upholds aggregation of money involved in various currency reporting offenses. (470) Defendants were convicted of conspiracy, failure to file currency transaction reports and structuring financial transactions to avoid currency reporting requirements. The 9th Circuit found no error in the district court’s aggregation of the currency exchanged in the various transactions for which defendants were convicted. Under guideline section 3D1.2(d), the district court must group money laundering counts and counts involving the failure to file currency transaction reports. The appropriate offense level for the grouped offenses is the offense level corresponding to the aggregated quantity of all grouped counts. U.S. v. Yee Soon Shin, 953 F.2d 559 (9th Cir. 1992).
9th Circuit reverses where bank robbery sentence was improperly based on combined loss of 4 robberies. (470) While the loss from the four robberies totalled more than $10,000, no single robbery involved such a loss. Section 3D1.2(d) specifically excludes bank robbery from the group of offenses for which the total loss from all offenses is to be added together to determine the offense level. Thus the 9th Circuit held that “rather than adding the total loss for all counts, the district court should have calculated the offense level for each count separately and then applied the upward adjustment provided for by the guidelines for convictions on multiple counts. See § 3D1.4. Since the sentence was based on an incorrect application of the guidelines, the case was remanded for resentencing. U.S. v. Boyd, 924 F.2d 945 (9th Cir. 1991).
9th Circuit upholds grouping firearms offenses separately from alien offense. (470) Defendant was convicted of (1) being an alien in possession of a firearm, (2) being a felon in possession of a firearm, and (3) being an illegal alien found in the United States after deportation. Following the “grouping” rules of guideline § 3D1.2, the district court grouped the two firearms offenses together and treated the conviction for being an alien found in the United States after deportation as a separate offense category. Defendant argued that all three offenses should be lumped together into one offense category thereby reducing his total offense level from 11 to 9. The 9th Circuit upheld the district court’s classification, holding that an unlawful entry into the United States after deportation “does not embody types of misconduct which typically occur in the course of unlawful possession of firearms.” The court examined a number of alternative grouping arguments, and reached the same conclusion. U.S. v. Barron-Rivera, 922 F.2d 549 (9th Cir. 1991).
10th Circuit upholds separate grouping of counts relating to different assaults. (470) Defendants were convicted of two counts stemming from their involvement in two racially motivated assaults. Because the jury returned a general verdict, the record did not reveal what the jury found regarding the scope of the conspiracy charged in Count I. The court treated the conspiracy count as if it were two separate counts, each charging conspiracy to commit one of the assaults. The court grouped the conspiracy to commit the first assault in Count I with the substantive assault in Count II, because both offenses involved the same act and the same victim. § 3D1.2(a). The court considered the conspiracy to commit the second assault as a separate count. The Tenth Circuit held that the district court correctly applied §§ 1B1.2(d) and 3D1.2. Section 1B1.2(d) clearly provides that a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit. In addition, § 3D1.2 provides that a court should group all counts involving substantially the same harms, such as when the counts involve the same victim and the same act. U.S. v. Egbert, 562 F.3d 1092 (10th Cir. 2009).
10th Circuit rules multiple victims from bomb threats prevented grouping. (470) Defendant was convicted of two counts of using a cell phone to convey false information about alleged attempts to blow up certain buildings. The Tenth Circuit upheld the district court’s decision to group the counts separately. The counts did not involve “substantially the same harm,” which occurs when the counts involve the same victim and one or more common acts. The 911 calls targeted multiple victims, since defendant mentioned “school,” “schools,” and “City Hall” as possible targets. There were four city halls and 39 public schools in the county where defendant placed the calls. The 911 calls caused many of the schools to go into lockdown mode, and thousands of students left or were picked up by their parents. Police officers were dispatched to various schools and city buildings, security personnel conducted bomb searches, and six schools cancelled after-school activities. Thus, the two counts seriously affected the schools and city halls throughout the county. There clearly were multiple victims. U.S. v. Parker, 551 F.3d 1167 (10th Cir. 2008).
10th Circuit upholds grouping of multiple counts of assault and rape. (470) Defendant was convicted of two counts of rape and two counts of assault for brutally attacking his girlfriend. The district court grouped the charges together as one transaction. Defendant argued that the court should not have grouped the counts together, and that once the charges were not grouped, the 4-level enhancement for serious bodily injury (under § 2A3.1(b)(1)) would apply only to the assaults and not to the rapes. The Tenth Circuit ruled that it was proper to group the charges together. The Guidelines require grouping when counts involve the same victim and either the same act or transaction or two or more acts or transactions connected by a common criminal objective. All four charges were sufficiently connected. The beatings and rapes happened over the course of a few hours with little break, as part of one prolonged brutal attack. Moreover, it was also proper to apply the bodily-injury increase to the rapes, for reasons unrelated to the grouping. Section 2A3.1(b)(4)(A) provides for a specific offense enhancement when “the victim sustain[s] permanent or life-threatening bodily injury.” Defendant’s crime was using force to procure sex, so this enhancement includes injuries sustained because the rapist was beating the victim into submission. U.S. v. Martin, 528 F.3d 746 (10th Cir. 2008).
10th Circuit holds that fictitious children were separate for grouping purposes. (470) Defendant was convicted of a number of offenses relating to his sexually explicit online conversations with what he believed to be a 16-year old girl and a 12-year old girl. In fact, both girls were fictitious, created by a middle-aged man as a gag. The man ultimately contacted the FBI, who assumed the identities and made plans to meet defendant. Defendant argued that all of the counts should have been grouped together based on a single, shared harm to society in general for attempting to entice both girls, when these girls were the product of a single imagination. The Tenth Circuit held that fictitious children, used as part of an undercover sting operation, may be treated as separate victims for grouping purposes. U.S. v. Sims, 428 F.3d 945 (10th Cir. 2005).
10th Circuit upholds separate grouping of money laundering and fraud under 1995 guidelines. (470) Defendants ran an investment fraud scheme, taking in almost $14 million by promising investors that they would double their money. Money from later investors was used to pay earlier investors. The Tenth Circuit upheld the district court’s refusal to group the money laundering and fraud counts together under § 3D1.2. While some circuits take a different approach, under Tenth Circuit precedent such grouping is not permitted. See U.S. v. Johnson, 971 F.3d 562 (10th Cir. 1992); U.S. v. Kunzman, 54 F.3d 1522 (10th Cir. 1995). The rationale of those cases, which both involved Ponzi schemes, is that the relevant money laundering guideline focused not on loss to any particular group but on the total volume of money laundered, and the “victim” of fraud-related money laundering was not the particular victim of the fraud, but rather “society in general.” Because they measure different types of harm to different victims, the fraud and money laundering offenses could not be grouped. The fact that the 2001 guidelines make it clear that money laundering of fraud proceeds should be grouped with the underlying fraud did not matter. The application 2001 guidelines would not be favorable to defendant, and to avoid ex post facto problems, the court applied the 1995 guidelines. U.S. v. Aptt, 354 F.3d 1269 (10th Cir. 2004).
10th Circuit holds that “most serious” of grouped counts is the count with highest offense level. (470) Defendant was convicted of five counts relating to the manufacture of methamphetamine. The district court applied § 2D1.1 to four counts, but applied § 2D1.10 to a fifth count, a conviction for creating a substantial risk to human life while attempting to manufacture methamphetamine, in violation of 21 U.S.C. § 858. Under the grouping rules, § 3D1.3(b) provides that “[w]hen the counts involve offenses of the same general type to which different guidelines apply, apply the offense guideline that produces the highest offense level.” Because § 2D1.10 produced the highest offense level (35 rather than 32), the court found that § 2D1.10 should be applied. Defendant argued that because § 858 has a statutory maximum sentence of 10 years, § 2D1.10 was not the most serious of the grouped counts. See U.S. v. Brinton, 139 F.3d 178 (9th Cir. 1998) (holding that court should apply the offense with highest statutory maximum). The Tenth Circuit disagreed, holding that the most serious count is not the count with the greatest available statutory maximum, but the count with the highest offense level. See U.S. v. Kroeger, 229 F.3d 700 (8th Cir. 2000). The Ninth Circuit’s analysis in Brinton overlooked the fact that when a defendant is sentenced on multiple counts, the statutory maximum for any one count does not cap the total punishment he can receive. The district court properly selected the guideline that produced the higher offense level, § 2D1.10. U.S. v. Evans, 318 F.3d 1011 (10th Cir. 2003).
10th Circuit upholds separate grouping of mail fraud and tax evasion. (470) Defendant embezzled money from two different employers and used the mail to cover up his embezzlement. In addition, he failed to report the embezzled funds on his income tax returns. Defendant argued that the two counts should be grouped under § 3D1.2(c) (providing for grouping when one of the counts embodies conduct that is treated as a specific offense characteristic of another count) because the tax evasion guideline, § 2T1.1(b), included a two-level increase for the failure to report income exceeding $10,000 in any year from criminal activity. The Tenth Circuit upheld the district court’s refusal to group the counts. First, the § 2T1.1(b)(1) enhancement serves a different purpose than the loss enhancement in § 2F1.1(b)(1)(K). The purpose of the increase under § 2F1.1(b)(1)(K) is to account for the seriousness of the crime in terms of the amount of money involved. The purpose of the § 2T1.1(b)(1) increase is the account for the fact that tax loss will tend to be understated where criminally derived income is involved. Moreover, § 3D1(c) emphasizes that it applies only where the two counts are “closely related.” See Note 5 to § 3D1.2(c). The tax evasion and mail fraud were not closely related because the victims were not the same, the offenses involved distinct behavior, the purposes of the enhancements were different, and the harms attributable to each crime was dissimilar. U.S. v. Peterson, 312 F.3d 1300 (10th Cir. 2002).
10th Circuit holds that failure to group carjacking and robbery was not plain error. (470) Defendant and several others followed the manager of a U.S. Express home from work, tied up her grandparents and child, forced the manager back into the car at gunpoint, and forced her to return to the U.S. Express, where they robbed it. The Tenth Circuit held that the district court’s refusal to group defendant’s carjacking count with his robbery count was not plain error. The carjacking was a separate crime, with separate and distinct facts from the U.S. Express robbery. The carjacking was complete before the robbery ever began. Moreover, the carjacking was not necessary to the robbery. Defendant and his cohorts could have simply stolen the keys to the business from the manager, or abducted her and placed her in one of their cars. If defendant had carjacked the victim solely for the purpose of robbing her, then the robbery charge would presumably have to be enhanced under § 2B3.1(b)(5) for involving carjacking, and then the counts would have to be grouped. See § 3D1.2(c) (counts involve substantially the same harm when one of the counts embodies conduct that is treated as a specific offense characteristic to the guideline applicable to another count). It was not plain error for the court not to enhance the robbery for the carjacking because the two crimes were not so closely related as to mandate enhancement under § 2B3.1(b)(5). U.S. v. Malone, 222 F.3d 1286 (10th Cir. 2000).
10th Circuit rules court should have grouped failure to appear and underlying drug offense. (470) Defendant pled guilty to drug charges and then failed to appear for sentencing. She pled guilty to failure to appear, in violation of 18 U.S.C. § 3146(a)(2). The district court sentenced her to 18 months’ imprisonment, to run partially concurrently with her drug sentence. The Tenth Circuit held that the district court should have grouped defendant’s drug offense and her failure to appear offense for sentencing, and imposed a total punishment with consecutive sentences. Section 3146(b)(2) directs a court to impose the sentence for failure to appear consecutively to the sentence for the underlying offense. When a defendant is convicted of both failure to appear and the underlying offense, the failure to appear offense is treated as an obstruction of the underlying offense under § 3C1.1. The two offenses are then grouped pursuant to § 3D1.2(c). See note 5 and § 2J1.6 note 3. Once the offenses are grouped, the district court is to determine the offense level of the group, set the total punishment, and impose consecutive sentences within the total punishment. U.S. v. Gigley, 213 F.3d 503 (10th Cir. 2000).
10th Circuit upholds separate grouping of tax and fraud convictions. (470) In 1991, defendant ceased to file income tax returns and pay income taxes. In 1992, defendant began to conceal his income. When the Kansas Department of Revenue demanded the payment of overdue taxes, defendant mailed the agency a fraudulent “certified bankers check.” The Tenth Circuit upheld the separate grouping of defendant’s tax and fraud convictions. The convictions involved different harms. Defendant’s tax offenses deprived the federal government of revenue to which it was entitled from him under the tax code. Defendant’s mail fraud constituted an attempt to obtain funds fraudulently from Kansas. The measure of harm attributable to defendant’s offense could also be seen as distinct. Under § 2T1.1, the harm attributable to an offense is based on the amount of tax that is actually owed and remains unpaid. By contrast, under § 2F1.1, the harm attributable to an act of mail fraud is the amount of loss a perpetrator seeks to create, if greater than the actual loss. Moreover, because the victims of defendant’s tax and mail fraud differed, the convictions did not need to be grouped as part of a criminal plan that was “ongoing or continuous in nature” under § 3D1.2(d). U.S. v. Lindsay, 184 F.3d 1138 (10th Cir. 1999).
10th Circuit upholds one-year sentence on one count where total punishment exceeded one-year statutory maximum for that count. (470) Defendant pled guilty to attempt to possess decadurobolin, a steroid, and was convicted of four marijuana-related counts. He argued that the district court improperly sentenced him to one year in prison for the steroid charge. The Tenth Circuit held that the district court properly calculated the one-year sentence on the steroid conviction. Because defendant was convicted of more than one drug count, the district court properly grouped all of the offenses together for purposes of determining his total punishment. Defendant’s combined offense level corresponded to a total punishment of 26 months. The 26-month sentence for the steroid possession count was higher than the one-year statutory maximum sentence. Accordingly, § 5G1.1(a), through operation of § 5G1.2(b), required that the statutory maximum be the sentence on that particular count. U.S. v. Johnston, 146 F.3d 785 (10th Cir. 1998).
10th Circuit upholds separate grouping of civil rights counts. (470) Defendants racially taunted and then chased three black men in a car. The chase ended when one of the defendants fired a gun several times into the rear window of the victims’ car, shattering the window and injuring the occupant of the back seat. Defendants were convicted of three civil rights counts, each alleging the same criminal conduct but against a different victim. They argued that the counts should have been grouped into a single group under § 3D1.2(c) because both the counts in the indictment and the specific offense characteristics of § 2A2.2 alleged the same conduct, i.e. discharging a firearm. The Tenth Circuit upheld the separate grouping. Section 3D1.2(c) mandates grouping only when one of the counts embodies conduct applicable to another of the counts. Here, although defendants received an enhancement for use of a firearm, discharge of a firearm was not a separate count against them. Under the plain language of § 3D1.2(c), grouping was not mandated. U.S. v. Woodlee, 136 F.3d 1399 (10th Cir. 1998).
10th Circuit again rejects grouping money laundering with underlying crimes. (470) Defendant was convicted of three counts of uttering forged checks and three counts of money laundering. She argued that the district court should have grouped the counts of uttering forged checks with the money laundering counts. The Tenth Circuit noted that although other circuits have adopted this position, it has expressly and repeatedly rejected her argument. U.S. v. Allen, 129 F.3d 1159 (10th Cir. 1997).
10th Circuit requires separate grouping of money laundering and fraud counts. (470) Defendant was convicted of mail fraud, conspiracy and money laundering. He argued that § 3D1.2 required the grouping of the mail fraud and money laundering counts. The Tenth Circuit held circuit precedent required separate grouping because money laundering and fraud involve different harms and different victims. Although the court might be inclined to agree with defendant were this a case of first impression, one panel of the court may not overrule another. U.S. v. Hargus, 128 F.3d 1358 (10th Cir. 1997).
10th Circuit departs up one level where multiple count guideline did not cover other robberies. (470) Defendant pled guilty to 10 counts of armed bank robbery. The district court departed upward by one level because § 3D1.4 only accounted for five of the 10 robberies to which defendant pled guilty. The Tenth Circuit agreed that the five additional bank robbery charges that did not amount to additional units under § 3D1.4 were adequate grounds for a one point departure. However, the court should not have increased defendant’s offense level based on 13 uncharged bank robberies. Although uncharged criminal conduct is a valid basis for departure under § 4A1.3, the district court erred by increasing defendant’s offense level as opposed to his criminal history category. U.S. v. Okane, 52 F.3d 828 (10th Cir. 1995).
10th Circuit approves separate grouping for fraud and money laundering counts. (470) The district court, relying on U.S. v. Johnson, 971 F.2d 562 (10th Cir. 1992), grouped defendant’s fraud and money laundering counts separately. Johnson held that § 3D1.2(d) could not be used to group together fraud and money laundering counts because of the difference in the nature and measure of harm resulting from these offenses. Defendant argued that the court’s reliance on Johnson was misplaced because his counts should have been grouped under § 3D1.2(b). The Tenth Circuit held that Johnson prohibits the grouping of fraud and money laundering under § 3D1.2, whether analyzed under subsection (b) or (d). Subsection (b) provides that counts involve substantially the same harm when they involve the same victim and two or more acts connected by a common criminal objective or common scheme or plan. Johnson clearly establishes that the victim of fraud, the defrauded individual, is not the same as the victim of money laundering, society in general. U.S. v. Kunzman, 54 F.3d 1522 (10th Cir. 1995).
10th Circuit groups separately illegal re-entry and felon in possession of firearm. (470) Defendant pled guilty to aggravated illegal re-entry after deportation and being a felon in possession of a firearm. He argued that the counts should have been grouped together under § 3D1.2(a) because they involved the same harm to societal interest in prohibiting criminal conduct by convicted felons. The Tenth Circuit upheld the separate grouping, since the two offenses posed threats to distinct and separate societal interests. The illegal re-entry offense involves the societal interest in enforcing immigration laws, while the felon in possession offense implicates the societal interest in keeping firearms from those unqualified to possess them. Under defendant’s logic, nearly any combination of offenses would qualify for grouping under § 3D1.2(a), because a societal interest in deterring criminal behavior underlies all statutory offenses. U.S. v. Baeza-Suchil, 52 F.3d 898 (10th Cir. 1995).
10th Circuit rejects ex post facto claim where grouping rules would result in same offense level under old guidelines. (470) Defendant was convicted of numerous counts of fraud and money laundering. He argued for the first time on appeal that the use of the 1992 guidelines violated the ex post facto clause because the version of § 2F1.1 in effect when he committed his fraud provided for a smaller loss adjustment. The Tenth Circuit found no plain error, since the grouping rules would have resulted in the same offense level under either version of the guidelines. The district court found the offense level for the fraud counts was 23. The offense level for the money laundering scheme was also 23. Under § 3D1.3(6), the court was obligated to use the guideline that produced the highest offense level for the group. Thus, even if the district court improperly calculated the offense level for the mail fraud counts, the district court would still have used the offense level of 23 from the money laundering group. U.S. v. Massey, 48 F.3d 1560 (10th Cir. 1995).
10th Circuit upholds separate grouping of money laundering and wire fraud convictions. (470) Defendant argued that the district court should have grouped his money laundering and wire fraud convictions under § 3D1.2(d). The 10th Circuit found that U.S. v. Johnson, 971 F.2d 562 (10th Cir. 1992) foreclosed this argument. Johnson held that the two offenses should not be grouped if, as in this case, the harm caused by each is qualitatively distinct. U.S. v. Linn, 31 F.3d 987 (10th Cir. 1994).
10th Circuit upholds separate grouping of mail fraud and money laundering offenses. (470) Defendant, the operator of a travel agency, was convicted of mail fraud and money laundering for her participation in a scheme to defraud airlines of thousands of dollars. She argued that the mail fraud and money laundering counts should have been grouped together under § 3D1.2(c) because the mail fraud count was used as a specific offense characteristic in the money laundering guideline. The 10th Circuit upheld the separate grouping. Defendant received an enhancement under section 2S1.2(b)(1)(B) because she knew that the funds laundered were the proceeds of a specific unlawful activity, i.e. her mail fraud. However, that section refers to the knowledge of the perpetrator. It does not relate to the commission of the crime. Thus, the enhancement would be applicable even if defendant had not actually committed the mail fraud, but instead had mere knowledge of the money’s origins. U.S. v. Smith, 13 F.3d 1421 (10th Cir. 1994).
10th Circuit rejects adding money obtained by fraud to funds in money laundering scheme. (470) Defendant defrauded investors out of millions of dollars. He was convicted of money laundering as a result of his use of the proceeds of his fraud to pay off his mortgage and to buy a car. In determining the offense level for the money laundering scheme under section 2S1.1(b), the district court added the funds obtained by fraud. This was based on section 1B1.3(a)(2), which provides that offenses which would require grouping with the offense of conviction under section 3D1.2(d) should be considered relevant conduct. The 10th Circuit reversed, ruling that the funds should not have been “grouped.” Under section 2F1.1, the fraud guideline, the offense level is determined on the basis of the “loss” resulting from the fraud, whereas under section 2S1.1, the money laundering guideline, the offense level is determined largely on the basis of the value of the funds. These are not the same concepts. U.S. v. Johnson, 971 F.2d 562 (10th Cir. 1992).
10th Circuit rules two false reports to airline should be grouped together. (470) Defendant was convicted of making two false reports to an airline, claiming that his ex-wife’s suitor was on board carrying a handgun and explosives. The 10th Circuit held that under section 3D1.2 (b), the two counts should be grouped together. The counts were part of a single course of conduct with a single criminal objective, representing one composite harm to the same victim. The court rejected the government’s contention that the airline was the “primary” victim of defendant’s threats, and that defendant constituted a separate risk of harm to different flights, crews and passengers. Defendant did not target the airline for harm, he targeted his ex-wife’s suitor. The scheme was motivated by only one desire: to “bring grief” to the suitor. U.S. v. Norman, 951 F.2d 1182 (10th Cir. 1991).
10th Circuit calculates offense level based upon highest offense level in grouped counts. (470) Defendant pled guilty to engaging in a continuing criminal enterprise, one of the predicate acts of which was manufacturing a quantity of methamphetamine. Defendant also pled guilty to manufacturing a quantity of methamphetamine. He contended it was error for the district court to calculate his offense level as 36, the base offense level for the manufacture of methamphetamine, rather than 32, which was the base offense level for engaging in a continuing criminal enterprise. The 10th Circuit rejected this argument, finding that since the offenses were grouped, the district court properly assigned defendant the highest offense level for the group. The court also rejected defense counsel’s suggestion that the methamphetamine charge was a lesser-included offense of the continuing criminal enterprise offense. U.S. v. Morrow, 929 F.2d 566 (10th Cir. 1991).
11th Circuit says grouping error did not affect defendant’s sentence. (470) Defendants fraudulently lured women to South Florida, drugged them, filmed them engaging in sexual acts, and distributed the pornographic footage. Section 2G1.3(d)(1) provides that in the case of a conviction or convictions for sex trafficking involving minors, the grouping rules apply as if each victim constituted a separate conviction. Defendant argued that the district court incorrectly grouped his offenses based on § 2B1.3(d). The government conceded error, as there was no evidence that the offenses involved minors. The Eleventh Circuit held that the error did not affect defendant’s substantial rights, because the correct guideline, § 2G1.1(d), would have grouped the offenses in the same manner. Therefore, the error did not affect the outcome of the sentencing, and was not a basis to find procedural unreasonableness. U.S. v. Flanders, 752 F.3d 1317 (11th Cir. 2014).
11th Circuit affirms refusal to group illegal reentry and firearms convictions. (470) Defendant pled guilty to illegal reentry, in violation of 8 U.S.C. § 1326(a), and possession of a firearm by an illegal alien, in violation of 18 U.S.C. § 922(g)(5). The Eleventh Circuit held that the district court properly refused to group the convictions. Defendant’s two counts of conviction did not fall within any of the four subsections in § 3D1.2. First, defendant’s offenses did not have an identifiable victim, much less the “same victim,” as required by § 3D1.2(a) or (b). Although for offenses without identifiable victims, the victim is the societal interest that was harmed, illegal reentry and possession of a firearm harm different societal interests. Section 3D1.2(c) did not apply because the harm from one count was not a specific characteristic of the other count. Section 3D1.2(d) provides for grouping if each guideline provision calculates the offense level for that count based on some measure of aggregate harm, such as total loss or drug quantity. Although § 2K2.1, the firearm guideline, does calculate offense level based on the number of firearms, § 2L1.2, the immigration guideline, does not. U.S. v. Jimenez-Cardenas, 684 F.3d 1237 (11th Cir. 2012).
11th Circuit holds that tax offenses should have been grouped together. (470) Defendant pled guilty to 17 counts of tax-related offenses. The first 13 concerned his failure to pay to the IRS federal taxes that had been withheld from the wages of his company’s employees. The remaining four concerned the falsification of his individual federal income tax returns. On appeal, he argued that the district court erred by refusing to group all of his counts into a single group under § 3D1.2(b) or (d) as “counts involving substantially the same harm.” The Eleventh Circuit agreed, ruling that all 17 counts should have been grouped under § 3D1.2(d) because their offense level was determined largely on the basis of the amount of loss, the underlying offenses were of the same general type, and, in this case, grouping served § 3D1.2’s principal purpose of grouping closely related counts. Section 3D1.2(d) provides, in pertinent part, that counts involve substantially the same harm “[w]hen the offense level is determined largely on the basis of the total amount of harm or loss…” The guideline includes a list of guidelines covering offenses predetermined to meet its requirements and which “are to be grouped.” The applicable guidelines for defendant’s offenses, § 2T1.6 and § 2T1.1, are both included in the “are to be grouped” list. U.S. v. Register, 678 F.3d 1262 (11th Cir. 2012).
11th Circuit upholds separate grouping of firearm possession offense. (470) Defendant beat up his girlfriend and threatened her with a gun. He was arrested, but after he was released from jail on bond, he sought to have his girlfriend killed. He pled guilty to being a felon in possession of a firearm, and was tried and found guilty of murder for hire and conspiracy. The district court grouped the murder for hire and conspiracy counts together, but considered the firearm charge to be a separate count. The Eleventh Circuit held that the district court did not err in refusing to group all three of the counts together under § 3D1.2. Counts 1 and 2 involved defendant’s scheme to hire a hit man to murder his girlfriend. That conduct occurred in March 2006. The hiring of the hit man and the conspiracy charged focused on the same victim and were part of a “common criminal objective” under § 3D1.2(b). Count 3 was a simple felon in possession charge stemming from a domestic violence dispute in October 2005 in which defendant threatened his girlfriend with a pistol. Society as a whole was the victim of the firearm possession charge. U.S. v. Covington, 565 F.3d 1336 (11th Cir. 2009).
11th Circuit holds that court erred in dividing conspiracy into eight different sentencing groups. (470) Defendant was convicted of various counts related to his multiple sexual encounters with young, poverty-stricken boys from Third World countries. The district court treated Count 10, conspiracy to travel in foreign commerce with the intent to engage in sexual acts with minors, as eight separate sentencing guidelines groups, treating eight trips to Honduras as separate offenses. The Eleventh Circuit held that this was error. There are two guideline provisions that allow a court to divide a count into several groups for sentencing, but neither was applicable here. Under § 3D1.2, a court may treat a conspiracy count as if it were several counts, each one charging conspiracy to commit one substantive offense, when a defendant is convicted of conspiring to commit several substantive offenses and also convicted of committing one or more of the underlying substantive offense. While defendant was convicted of a conspiracy to travel offense in Count 10, he was not convicted of any substantive travel offense. Under § 1B1.2(d), a sentencing court may treat a conspiracy count as if it were separate counts, sentencing a defendant based on each offense that the defendant conspired to commit, when the defendant is convicted of a multi-object conspiracy. Here, the language of the indictment made clear that only a single act of conspiracy was alleged. U.S. v. Hersh, 297 F.3d 1233 (11th Cir. 2002).
11th Circuit says money laundering amendment is substantive not clarifying. (470) Defendant contended that the district court erred by not applying Amendment 634, which would have required grouping his money laundering counts with his fraud counts. The Eleventh Circuit, agreeing with three sister circuits, concluded that Amendment 634 effects a substantive change to the guidelines, and thus, could not be applied retroactively. Amendment 634 does not simply provide for grouping; rather, it “refines the way in which the offense level associated with the crime of money-laundering is calculated, so that the offense level for money-laundering may now be dependent upon the offense level assigned to the underlying offense.” The prior version of § 2S1.1 set the base offense level for money laundering at either 23 or 20 depending upon which subsection of 18 U.S.C. § 1956 provided the basis for conviction. Moreover, the commentary to Amendment 634 does not state that it is intended to be a clarifying amendment. Rather, the amendment addresses concerns that the prior penalty structure did not adequately account for the underlying offense, did not adequately reflect the culpability of the defendant or the seriousness of the money laundering activity. Finally, Amendment 634 is not included in the list of amendments to be applied retroactively. See § 1B1.10(c). U.S. v. Descent, 292 F.3d 703 (11th Cir. 2002).
11th Circuit upholds separate grouping of separate escapes. (470) Defendant challenged the district court’s refusal to group his two counts of escape as closely related under § 3D1.2. The Eleventh Circuit found no error. Section 3D1.2(a) permits the grouping of counts that “involve the same victim and the same act or transactions.” Defendant’s counts involved two separate instances of escape and thus, did not involve the same act or transaction. Subsection (b) permits grouping of counts that “involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.” The district court found that, although defendant’s escapes involved the same general type of conduct, they were separate and distinct offenses. Defendant did not demonstrate that his two separate escapes were connected by a common criminal objective. Subsection (c), which applies when one of the counts embodies conduct that is treated as a specific offense characteristic of the guideline applicable to another count, clearly was not applicable to two counts of escape. Finally, subsection (d) did not apply because escape is specifically excluded from that subsection. U.S. v. Bradford, 277 F.3d 1311 (11th Cir. 2002).
11th Circuit holds “grouping” rules apply to RICO predicate acts. (470) Defendants argued that the grouping rules in guideline § 3D1.1 apply only to counts of the indictment that result in convictions, not to RICO predicate acts. The Eleventh Circuit rejected the argument, relying on Application Note 1 to § 2E1.1 which provides that a sentencing court is to “treat each underlying offense as if contained in a separate count of conviction.” That application note also refers to Chapter 3D which includes the grouping provisions. “The plain language of the guidelines therefore clearly indicate that a sentencing court must apply the grouping rules, where applicable, to determine a defendant’s offense level for underlying racketeering conduct.” U.S. v. Nguyen, 255 F.3d 1335 (11th Cir. 2001).
11th Circuit applies guidelines in the order listed in § 1B1.1. (470) Defendant argued that the district court erred in “prematurely” departing downward to reduce his offense level for felony murder from 43 to 37 and thereafter applying the grouping rules, which resulted in his offense level rising back to 41. He argued that the grouping rules should have been applied first, before the departure. The Eleventh Circuit disagreed relying on guideline § 1B1.1, which instructs the court to apply any special instructions in the Chapter 2 guidelines before applying the grouping rules in § 3D. Application Note 1 to the murder guideline, § 2A1.1, says a court may depart downward if “the defendant did not cause the death intentionally or knowingly.” Thus, it was proper for the court to depart downward pursuant to this instruction before applying the grouping rules in § 3D. U.S. v. Nguyen, 255 F.3d 1335 (11th Cir. 2001).
11th Circuit says conspiracy to commit robbery and attempted robbery should be grouped together. (470) Based on their attempt to rob an armored car, defendants were convicted of conspiring to obstruct interstate commerce through robbery (Count I), and attempting to obstruct interest commerce through robbery (Count II). The district court placed Counts I and II in separate groups, but the Eleventh Circuit reversed. Guideline § 3D1.2(b) requires grouping when the counts “involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan. The conspiracy to rob the armored car and the attempted robbery of that car were clearly parts of the same “common plan or scheme.” The acts also involved the same victims. The PSR’s conclusion that Count I represented the harm to one driver, while Count II represented the harm to the other driver, made no sense. Both men were victims of both offenses. Both men were attacked during the robbery, and both were put in jeopardy by the formation of the conspiracy. A conspiracy to commit a substantive offense will almost always have the same victims as the commission (or attempted commission) of that substantive offense, and so the two should almost always be grouped together under § 3D1.2. The guidelines do not force a court to designate “one real victim” of each offense. U.S. v. Williams, 340 F.3d 1231 (11th Cir. 2003).
11th Circuit divides conviction for conspiracy to commit hostage taking into three groups. (470) Defendant was involved in the abduction of a woman and her two children. The district court divided his single conspiracy conviction into three different groups for sentencing purposes based on the three victims of his crimes. The Eleventh Circuit affirmed. Note 8 to § 3D1.2 plainly contemplates treating the three kidnapping victims separately in order to adequately capture the full extent of defendant’s criminal behavior. U.S. v. Torrealba, 339 F.3d 1238 (11th Cir. 2003).
11th Circuit upholds separate grouping for trafficking in child pornography. (470) Defendant pled guilty to nine counts of interstate transportation of child pornography after he posted pornographic images of children on an Internet news group bulletin board. The Eleventh Circuit held that the district court properly grouped the nine child pornography counts separately. The counts did not “involve the same victim and the same act or transaction.” USSG § 3D1.2(a). Disseminating multiple child pornography images harms each minor depicted. See U.S. v. Tillmon, 195 F.3d 640 (11th Cir. 1999). Even assuming defendant’s behavior was “ongoing or continuous in nature,” defendant could not demonstrate that the offense guideline was written to cover trafficking in child pornography as an ongoing offense. USSG § 3D1.2(d). The commentary to § 2G2.2 defines a “[p]attern of activity involving the sexual abuse or exploitation of a minor” as “any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant….” Note 1 to § 2G2.2. However, “sexual abuse or exploitation” does not include trafficking in material relating to the sexual abuse or exploitation of a minor. Therefore, defendant did not show that the Sentencing Guidelines contemplated grouping for his offenses, and the district court properly refused to group them. U.S. v. McIntosh, 216 F.3d 1251 (11th Cir. 2000).
11th Circuit holds that minor depicted in child pornography is primary victim for grouping purposes. (470) Defendant sent to an informant via computer three different images of minors involved in sexually explicit conduct. He argued that the three counts of transporting child pornography involved only one victim—society in general—and therefore the court should have grouped the counts for sentencing purposes. See USSG § 3D1.2(a) (counts involving the same victim and the same act or transaction should be grouped). The Eleventh Circuit, siding with the majority of circuits to decide the issue, held that the minor depicted in child pornography is the primary victim of the offense for grouping purposes. The legislative history of 18 U.S.C. § 2252 makes it clear that the primary objective of the provision is to lessen the harm suffered by children. The court rejected U.S. v. Toler, 901 F.2d 399 (4th Cir. 1990), which concluded that the primary victim of the transportation of child pornography is society in general. The court refused to distinguish between the victim of production of child pornography and the victim of the dissemination of the images. “[T]he victimization of the children involved does not end when the pornographer’s camera is put away….” U.S. v. Tillmon, 195 F.3d 640 (11th Cir. 1999).
11th Circuit says grouping of fraud and money laundering not required. (470) Defendant was convicted of Medicaid fraud and money laundering. The Eleventh Circuit upheld separate grouping of the fraud and money laundering offenses. The mere listing of both of these guidelines under § 3D1.2(d) as offenses that “are to be grouped” does not automatically necessitate grouping. Note 6 to § 3D1.2 says that “[c]ounts involving offenses to which different offense guidelines apply are grouped together under subsection (d) if the offenses are of the same general type or otherwise meet the criteria for grouping under this subsection.” Thus, in cases involving Ponzi schemes where the laundered funds were paid out to old investors as false profits, the fraud and money laundering convictions can be grouped under § 3D1.2(d), because both were “integral cogs in continuing the scheme.” See, e.g. U.S. v. Mullens, 65 F.3d 1560 (11th Cir. 1995). In the present case, much of the $3 million at issue was either funneled to one of defendant’s businesses or withdrawn for personal use. The main connection between the laundered funds and the fraud scheme was that the money represented the proceeds of the fraud. If this connection alone was sufficient to justify grouping, “every act of money laundering would be closely related to the underlying crime which produced the money to be laundered.” U.S. v. McClendon, 195 F.3d 598 (11th Cir. 1999).
11th Circuit says gun at site of relevant conduct supported firearm enhancement and grouping. (470) Defendant sold several grams of amphetamine from his car to an informant. At defendant’s house, located almost 100 miles away from the scene of the arrest, police found drug paraphernalia and five guns, but no drugs. The district court found that defendant was engaging in drug trafficking from his home, and such conduct was relevant. The district court grouped four drug charges with a gun charge under § 3D1.2 as counts “involving substantially the same harm.” Multiple counts involve substantially the same harm “when one of the counts embodies conduct that is treated as a specific offense characteristic” of another of the counts. USSG § 3D1.2(c). A firearm is a specific offense characteristic of a drug count under § 2D1.1 (b)(1). The Eleventh Circuit held that the grouping was proper because the presence of the gun at the site of relevant conduct, located almost 100 miles away, supported a § 2D1.1(b)(1) firearm enhancement. Under U.S. v. Smith, 127 F.3d 1388 (11th Cir. 1997), the firearm enhancement applies “whenever a firearm is possessed during conduct relevant to the offense of conviction.” There was ample evidence for the district court to conclude that the drug paraphernalia found in defendant’s home was part of the same course of conduct as the offense of conviction. U.S. v. Hunter, 172 F.3d 1307 (11th Cir. 1999).
11th Circuit groups threatening phone calls separately. (470) Defendant made 20 anonymous, threatening telephone calls to an assistant U.S. attorney who had prosecuted him in an earlier case. The Eleventh Circuit upheld the separate grouping of the offenses under § 3D1.2. All offenses covered under Chapter Two, Part A, are specifically excluded from grouping under § 3D1.2(d). Defendant’s offense level was computed under § 2A6.1(a). Section 3D1.2(b) allow grouping for counts involving substantially the same harm when they involve the same victim and two or more acts connected by a common criminal objective. However, multiple, separate instances of fear and risk of harm, such as when a defendant robs or rapes the same victim on different occasions, are not to be grouped together. Here, although the threatening communications were part of a common overall scheme of harassment, the victim suffered separate and distinct instances of fear and psychological harm with each separate threatening communication. The district court properly refused to group the counts under § 3D1.2(b). U.S. v. Bonner, 85 F.3d 522 (11th Cir. 1996).
11th Circuit approves grouping fraud and money laundering counts. (470) Defendant ran an investment group that was in reality a Ponzi scheme. The Eleventh Circuit held that the district court properly grouped the fraud and money laundering counts under § 3D1.2(d). The fraud and money laundering were closely related. They were the same general type of offense because both were integral cogs in continuing the scheme. Without the fraud, there would have been no funds to launder. Laundering money by returning false profits to some investors and paying expenses to maintain a facade of success enabled defendant to attract new investors and keep old investors from discovering his deceit. U.S. v. Mullens, 65 F.3d 1560 (11th Cir. 1995).
11th Circuit groups property theft and fraud together. (470) A carton of 1500 bearer bonds was stolen from a shipment. Defendant was incarcerated at the time of the theft. However, after his release, some of the stolen bonds were found in his possession. The Eleventh Circuit held that the property theft and fraud counts were properly grouped together under § 3D1.2(d) since they involved offenses of the same general type with substantially the same harm. Once grouped together, the district court was required to apply the guideline that produced the highest offense level. In addition, the guidelines directed the court to assess loss under the fraud section in the same manner as in cases involving property theft. U.S. v. Goldberg, 60 F.3d 1536 (11th Cir. 1995).
11th Circuit upholds separate grouping of transporting stolen goods and money laundering. (470) Defendants were convicted of multiple counts of transporting stolen and fraudulent securities in interstate commerce, and engaging in money laundering. The Eleventh Circuit upheld the separate grouping of the transporting stolen goods counts and the illegal monetary transaction counts. The offenses were not the same type of offense or closely related under the facts. The victims differed, different conduct was criminalized, and the offense level for the stolen goods counts did not determine the offense level for the money laundering counts. U.S. v. Jenkins, 58 F.3d 611 (11th Cir. 1995).
11th Circuit affirms that drug trafficking and money laundering are not closely related. (470) Defendant transported marijuana from Texas to Florida, where he sold it. He gave his uncle and another person cash from the proceeds to purchase vehicles titled in the uncle and other person’s names. Defendant also used the proceeds to purchase a house. The 11th Circuit rejected defendant’s claim that his convictions for drug trafficking and money laundering should have been grouped as closely related counts under section 3D1.2(b) or (d). Because counts involving different victims (or societal harms in the case of victimless crimes) are grouped together only as provided in subsection (c) or (d), grouping under section 3D1.2(b) was rejected. Subsection (d) provides for grouping of counts involving the same harm when the offense level is determined largely on the basis of the total amount of harm or loss. Although both drug trafficking and money laundering are these types of offenses, grouping is not automatic. The court rejected grouping because drug trafficking and money laundering are not crimes of the same general type, nor were the offenses, under these facts, closely related. U.S. v. Harper, 972 F.2d 321 (11th Cir. 1992).
11th Circuit affirms reasonableness of six level departure for distributing drugs in prison. (470) Defendant smuggled drugs into jail and distributed them to other inmates. Because of the small quantity, defendant’s base offense level was only 12 under section 2D1.1. The district court departed upward six levels by analogy to section 2P1.2(a)(3), which sets a base offense level of six for providing contraband in a federal penal facility in violation of 18 U.S.C. section 1791. The 11th Circuit affirmed, observing that the sentence did not exceed what defendant would have received if he had been convicted under section 1791. The section 1791 count would not be grouped with his drug counts under section 3D2.1(a) or (b), since different societal interests are harmed by the two offenses. Nor would the two counts be grouped on the basis of drug quantity under section 3D2.1(d), since section 2P1.2 is specifically excluded from the operation of section 3D1.2(d). Finally, the two criminal history points that defendant was assessed under section 4A1.1(d) for being under a criminal justice sentence at the time of the offense did not adequately consider his imprisonment status. U.S. v. Ponder, 963 F.2d 1506 (11th Cir. 1992).
11th Circuit affirms separate grouping for two obstruction of justice counts. (470) Defendant, the owner of two car dealerships, was involved in a scheme under which rebate income was not reported to the IRS. When the IRS began to investigate the scheme at one dealership, defendant persuaded an employee of that dealership to take the blame for the tax offense. Two years later, when the IRS investigated the second dealership, defendant attempted to persuade an employee of that dealership to lie to the grand jury about his involvement in the offense. The 11th Circuit held that defendant’s two counts for obstruction of justice were properly grouped separately. Defendant’s conduct invaded two distinct societal interests: the proper conduct of the district court and of the federal grand jury. The second obstruction constituted significant additional criminal conduct. U.S. v. Beard, 960 F.2d 965 (11th Cir. 1992).
11th Circuit holds guidelines bar court from imposing a general sentence on multiple counts. (470) Defendant contended that the district court erred by imposing a general sentence on Count 1 and Count 3, rather than separate and specific sentences for each count. A general sentence is an undivided sentence for more than one count that does not exceed the maximum possible aggregate sentence for all the counts but does exceed the maximum allowable sentence on one of the counts. The 11th Circuit held that guideline § 5G1.2(b) requires distinct sentences on each count of conviction, not undivided general sentences covering two or more counts. U.S. v. Woodard, 938 F.2d 1255 (11th Cir. 1991)
11th Circuit rules retention of stolen check count should have been grouped with possession counts. (470) Defendant pled guilty to three counts of possession of stolen treasury checks and one count of retaining them. In sentencing the defendant, the district court grouped counts 1-3 separately from count four and the defendant appealed. The 11th Circuit reversed and remanded, holding that retaining and concealing the stolen checks was not “significant additional conduct” under the guidelines because essentially the same harm and conduct was involved. The court illustrated a simple example of count grouping, relying on a model contained in § 3D1.2(d) of the guidelines. U.S. v. Cain, 881 F.2d 980 (11th Cir. 1989).
D.C. Circuit refuses to apply Apprendi where drug quantities increased sentence for RICO/kidnapping group. (470) Defendant was convicted of multiple offenses, including drug conspiracy, RICO conspiracy, armed kidnapping, rape and attempted murder. In previous appeals, the D.C. Circuit ruled that a life sentence on the drug count violated Apprendi v. New Jersey, 530 U.S. 466 (2000). U.S. v. Fields, 242 F.3d 393 (D.C. Cir. 2001). However, on remand, the government was “free to argue to the District Court that life sentences should be imposed on the RICO conspiracy count” for the act of kidnapping. U.S. v. Fields, 251 F.3d 1041 (D.C. Cir. 2001). At resentencing, the court divided defendant’s 16 offenses into two groups. Group 1 included the drug conspiracy and the drug-related RICO acts. Based on the drug quantities found by the court, Group 1 had a base offense level of 40. Following § 3D1.4, the court used Group 1’s level of 40 as the “combined offense level” resulting in a sentencing range of 292-365 months. Because 292 months would exceed the 20-year statutory maximum where drug quantity is not found by the jury, the court reduced defendant’s sentence on the drug counts to 240 months. But for the armed kidnapping and RICO charge, it imposed 292-month sentences, well within the life maximum for those offenses. Defendant argued that the court’s calculation violated Apprendi because the drug quantities found by the court significantly increased his armed kidnapping and RICO offense levels, and thus his sentence. The D.C. Circuit found no error, refusing to apply Apprendi to drug quantities affecting the RICO armed kidnapping sentence, since they were not an element of that offense. Such quantities could be proven, like all sentence-affecting facts that are not elements of the offense of conviction, by a preponderance of the evidence. U.S. v. Fields, 325 F.3d 286 (D.C. Cir. 2003).
D.C. Circuit rejects sentence outside guideline range. (470) Defendant was convicted of conspiring to distribute crack (count one), aiding the distribution of crack (count two) and aiding the distribution of crack near a school (count three). The district court sentenced defendant to 175 months’ imprisonment on each count. The parties agreed, and the D.C. Circuit held, that the district court miscalculated defendant’s sentence, since the sentencing range for each of the first two counts was 121-151 months. Therefore, the 175 month sentence imposed for counts one and two was outside the permissible guideline range. Moreover, defendant could not be convicted of both distribution and distribution near a school under the same facts. U.S. v. Edmonds, 69 F.3d 1172 (D.C. Cir. 1995).
D.C. Circuit says crack house counts were not relevant conduct for sale count. (470) Defendant was convicted one count of aiding and abetting the distribution of crack cocaine, and five counts of maintaining a “crack house.” For sentencing purposes, the five crack house counts were grouped together and the distribution count was grouped separately. In determining the base offense level for the distribution count, the district court considered as relevant conduct the drugs involved in all six counts. The D.C. Circuit reversed. The offense level for the distribution count should have been calculated solely on the basis of the quantity of cocaine actually purchased without consideration of the drugs recovered from the search of the crack house. Section 1B1.3(a)(2) authorizes the sentencing court to take into account as relevant conduct solely those offenses for which section 3D1.2(d) would require grouping of multiple counts. Violation of the crack house statute cannot by itself be relevant conduct in calculating the offense level for a distribution conviction because the former is not of a character for which section 3D1.2(d) would require grouping of multiple counts. U.S. v. Lancaster, 968 F.2d 1250 (D.C. Cir. 1992).
Commission requires mandatory minimum for all counts in multiple count cases. (470) Adopting the view of the Fifth Circuit in U.S. v. Salter, 241 F.3d 392, 395-96 (5th Cir. 2001), the Commission amended §5G1.2(b) to clarify that, where the defendant has been convicted of multiple counts, at least one of the counts requires a mandatory minimum sentence that is greater than the minimum of the otherwise applicable guideline range. The court must impose the total punishment on each count, except to the extent otherwise required by law. The amendment rejects the Ninth Circuit’s contrary opinion in U.S. v. Evans-Martinez, 611 F.3d 635, 637 (9th Cir. 2010), which interpreted the guidelines to mean that, apart from the count with the mandatory minimum, the other counts must be sentenced based on the guidelines range. Accord, U.S. v. Kennedy, 133 F.3d 53, 60-61 (D.C. Cir. 1998). Amendment 767, effective Nov. 1, 2012.
Commission clarifies grouping rules. (470) The Commission amended § 3D1.1 to clarify application of the grouping rules when a defendant is sentenced on multiple counts contained in different indictments as, for example, when a case is transferred to another district for purposes of sentencing, pursuant to Fed. R. Crim. P. 20(a). The amendment adopts the reasoning of recent case law and clarifies that the grouping rules apply not only to multiple counts in the same indictment, but also to multiple counts contained in different indictments when a defendant is sentenced on the indictments simultaneously. Amendment 707, effective November 1, 2007.
Commission consolidates money laundering guidelines, increasing some penalties and decreasing others. (470) The Commission combined §§ 2S1.1 and 2S1.2 into a single new guideline, § 2S1.1, that applies to convictions under 18 U.S.C. § 1956 or § 1957, or 21 U.S.C. § 854. The new amendment provides increased penalties for defendants who launder funds derived from more serious underlying criminal conduct, such as drug trafficking, crimes of violence, and fraud offenses that generate relatively high loss amounts. However, the amendment decreases penalties for defendants who launder funds derived from less serious underlying criminal conduct, such as basic fraud offenses that generate relatively low amounts. The amendment ties offense levels for money laundering more closely to the underlying conduct that was the source of the criminal derived funds by separating money laundering offenders into two categories: direct money launderers, and third party money launderers, and provides a six-level enhancement for third party money launderers who knew or believed that any part of the laundered funds were the proceeds of, or were intended to promote, certain types of more serious underlying criminal conduct. The amendment also resolves a circuit conflict over “grouping,” by instructing that where a defendant is sentenced on a count of conviction for money laundering and a count of conviction for the underlying offense that generated the laundered funds, such counts shall be grouped pursuant to subsection (c) of § 3D1.2. Amendment 634, effective November 1, 2001.
Commission requires grouping multiple counts of child pornography. (470) The Third, Fifth, Sixth, Eighth, Ninth and Eleventh Circuits have held that the child depicted in the child pornography is the victim, rather than society as a whole, and therefore separate counts should not be grouped under § 3D1.2. The Fourth Circuit reached the contrary conclusion in U.S. v. Toler, 901 F.2d 399 (4th Cir. 1990). Resolving the conflict, the Commission amended § 3D1.2(d) to include guideline §§ 2G2.2 and 2G2.4 as “groupable” offenses, thereby requiring grouping of multiple counts of child pornography distribution, receipt, and possession. The Commission found that grouping was appropriate because these offenses typically are continuous and ongoing enterprises. This grouping provision does not require the determination of whether counts involve the same victim. Amendment 615, effective November 1, 2001.
Commission ensures incremental, consecutive penalty for failure to appear. (470) In its 1998 amendments, the Sentencing Commission amended §§ 2J1.6, 2P1.2, 3D1.1, 3D1.2 and 5G1.2 to ensure that there would be an incremental, consecutive penalty for defendants convicted of failure to appear. Specifically, the amendment more clearly distinguishes between statutes that require imposition of a consecutive term of imprisonment and statutes that require both a minimum term of imprisonment and a consecutive sentence. The amendment adds an upward departure provision if the offense involves multiple obstructive acts. The amendment also addresses a circuit conflict over whether grouping the failure to appear count with the count of conviction for the underlying offense violates the statutory mandate to impose a consecutive sentence. Compare U.S. v. Agoro, 996 F.2d 1288 (1st Cir. 1993) (grouping rules apply) with U.S. v. Packer, 70 F.3d 357 (5th Cir. 1995), cert. denied, 117 S.Ct. 75 (1996) (grouping rules defeat statutory purposes of 18 U.S.C. § 3146). Amendment 579, effective November 1, 1998.