Sentencing and Guidelines: Multiple Counts, Part 1 of 2

Live from the Federal Judiciary studios in Washington, D.C.,
the Federal Judicial Center and the U.S. Sentencing Commission present
Sentencing and Guidelines:
Multiple Counts.
Hello, and welcome to Sentencing and Guidelines: Multiple Counts.
This is the fifth broadcast that the Federal Judicial Center has produced in conjunction
with the U.S. Sentencing Commission
to help you with your work with the Sentencing Guidelines.
In today's
seminar we will focus on our fact patterns by examining fact patterns. Our instructors, who
are from the Sentencing Commission,
will focus on
Chapter 3, Part D
of the Guidelines Manual, Multiple Counts.
But before we do get started,
I do have a couple of housekeeping things to go over.
First, the length of the program: today's program is about 90 minutes long, and we are going
to take a short break,
but that'll occur about halfway--when we're about midway through the material.
And second, speaking of material,
our written materials for today
include a couple of different things. The packet includes not only our evaluations
but also a multiple count checklist
and those fact patterns that I spoke about that our instructors will be using.
So if you don't have any of those written materials,
they are available on the FJC's website on the DCN, which is jnet.fjc.dcn.
Third,
participation. This program is for you,
and we'll be better able
to answer your questions that you might
have regarding multiple counts if we know what they are.
So we welcome your participation. Please feel free to fax in your questions at any time
during today's program.
In fact, we've already received a couple
of faxes that we will get to during the program.
Thank you so much for that.
And the
number will appear throughout
the program up on the screen for you so you can jot that down.
We have reserved time to take them--
your questions--both before the break
and at the end of the program.
And finally, CLE credit.
This broadcast has been credited for CLE, continuing legal education, in a couple of
different--many, actually--mandatory CLE jurisdictions, but in order for you
to apply for state credit, you have to do a couple of different things.
First, make sure that you sign the participant roster. It will have a CLE box on the roster that
you'll need to check off.
Also,
the evaluation form itself has a CLE box that you need to fill out that evaluation
information as well
and return it to us at the FJC.
Then have the site coordinator sign your attendance certificate,
and mail all that paperwork off to your state bar within 30 days of this broadcast.
Now, for the most recent list of the jurisdictions that have approved this for CLE credit,
along with more specific instructions than what I just gave you, that is also available
along with the written materials on the website-- the FJC's DCN site, rather.
But that is all that I have for now.
So without further ado, I'm going to turn it over to our instructors today from the U.S.
Sentencing Commission.
They are Education and Sentencing Practice Specialists
Rachel Pierce and Krista Rubin.
Thanks, Lauren.
Good afternoon and welcome to Sentencing and Guidelines: Multiple Counts.
Our broadcast today is going to focus on the procedure under the guidelines
for determining a single offense level
for multiple counts of conviction.
Having said that,
the goal of our broadcast today
is to provide you with a comprehensive working knowledge
of these multiple count rules so that application
of the rules becomes second nature to all of you.
Lauren has already mentioned the packet of materials that Rachel and I are going to be referring to
throughout the broadcast.
And I'm going to turn it over to Rachel now to talk a little bit about our agenda for
today.
Sure, Krista. Our program today is going to begin with an introduction to the basic rules
of guideline application.
Then we are going to
review each rule individually using the fact patterns that we have to further illustrate
each of the individual rules.
And as we've mentioned before, you will find those fact patterns in your written material.
In addition to Krista and I live in the studio today, you're going to be
seeing video clips from taping footage of our Ninth Annual
National Seminar on Federal Sentencing Guidelines. Rusty Burress is going to be interjected
in between Krista and I to help with the instruction.
And, as always, please remember to fax your questions in, the earlier the better. And we look forward
to helping you with your analysis of your multiple count application questions.
We are going to start our discussion today with some background information regarding the
multiple count rules.
We find that when you are doing your analysis of these rules
it's pretty important for you to understand the rationale behind--
the reasons why the Commission put these
rules into our guidelines manual.
And as some of you already may know,
there are basically two steps in grouping.
For an introduction to these two steps and a little discussion about the background to
get us started,
we're going to go right away to a video clip of Rusty Burress. Rusty?
So the approach to multiple counts
is not to look so much at the counts but to look at how many harms do we have really occurring here.
And there's several ways in which the determination is made as to whether you have
a single harm or a multiple harm.
Now the grouping rules
are the things that we look at to make the decision as to whether we have multiple harms or
a single composite harm.
You'll hear and even read in the case law "these were grouped under Rule (a)," and "these were grouped
under Rule (b)."
So they are referred to as rules even though it's still just another guideline in the manual.
Now the steps in multiple counts I think basically can be broken down into two steps,
and sometimes you don't have to get to the second step. So I think it's really pretty
easy in that regard.
Step 1 is grouping.
Grouping leads us to the determination as to whether we have one composite harm, even
though we've got multiple counts of conviction,
or whether we have multiple harms.
First you see
grouping counts under Rule (d) because we think that is the easiest rule to group under.
And if you don't group them under Rule (d), how about Rules (a), (b), or (c)? Do they work toward grouping?
And we'll go through this process.
If you have made the determination that you have more than one harm,
then just like the 5 robberies where we say, well, we're going to give some additional punishment,
but we're not going to give 5 times the punishment that we would have for 1 robbery,
the process the Commission sends you through
is called incremental increases and punishment.
We refer to it as sort of a unit process where you have to assign what are called units.
We'll talk about that.
And then these units will translate into additional offense levels--the additional offense levels representing
this increase in punishment
for these multiple harms.
Let me elaborate just a little bit on the brief introduction that Rusty just gave us.
When we do talk about multiple count application we refer to the two steps. The first step
being determining
which counts you have for one single or composite harm.
The next step being assigning units
for additional
separate harms, if you will.
And the grouping rules at 3D1.2 are actually written to reflect this.
3D1.2 reflects the first step, grouping those counts that
represent one composite harm,
and
3D1.4,
the assigning of units for separate and distinct harms.
So let's just kind of review it again with a slide that we have for you here.
The first thing you need to do is establish whether your multiple counts represent one composite
harm
or separate distinct harms.
Then, if need be, you move on to increase offense levels for any separate or distinct
harms that you may have. We provide a mathematical determination, if you will,
to increase offense levels for various counts at 3D1.4,
and those increases are incremental.
Now let's go back to Krista for a little bit more information on the rationale behind
the multiple count rules. Thanks.
At 3D1.1,
actually in the introductory commentary to Chapter 3 Part D, the Commission has provided
us with some additional information
regarding the reasons for these multiple count rules.
The first rule that we talk about
in that introductory commentary
is that these rules--their main goal is to determine a single offense level, and as you know
when you get to the Sentencing Guidelines table, which is
the final--the
final step in guidelines calculation,
you see that there is one offense level and one criminal history category. So the primary
purpose of our multiple count rules is to come up with that one offense level.
Secondly,
these rules also function to prevent
"double-counting." We don't want to punish a defendant twice for the same behavior.
But on the other hand,
these rules also provide incremental punishment
for defendants whose multiple counts of conviction
represent
separate and distinct harms.
Finally,
these multiple count rules limit the impact of charging decisions. And you'll see from
our fact pattern examples exactly how that works.
Rachel, we have
just given a brief introduction of the multiple count rules, but with any rule it seems that
there's always an exception. So let's talk about the exceptions
for the multiple count rules. Sure, Krista. Actually not all counts are subject to the multiple
count rules, and in fact
there are some specific exclusions to the multiple count rules.
You're going to find those at 3D1.1.
Looking at 3D1.1,
this guideline tells us that any count for which the statute specifies a term of imprisonment
to be imposed
and also requires that that term of imprisonment runs consecutively
to any other term of imprisonment imposed,
then that's the type of offense for which
the grouping rules will not be applied. In other words, that's the type of offense
that would be excluded
from grouping rules.
Now, an example of such an offense would be, as many of you may know, a violation of
18 U.S.C. 924(c),
or the use of a handgun during the commission of a crime of violence.
This is one of those exceptions
to the rules of grouping.
Now, other than those offenses that meet the definition of offenses excluded from grouping,
all of the rest of the offenses are going to be
subject to the grouping rules in Chapter 3 Part D.
And as we explained
in the beginning of our broadcast,
there are two steps in the grouping process under Chapter 3 Part D.
We're going to take a look at the slide that Rusty showed on his video clip for another example.
The first step is grouping, which, as Rachel mentioned, is found under
3D1.2.
We advise that you start with
grouping under rule (d) and then move on to grouping under rules (a), (b), or (c) when you're
doing your analysis of multiple counts of conviction.
The second step
is the incremental increase step, where you're going to be assigning units,
and these units will result in additional offense levels
for defendants whose multiple counts represent separate and distinct harms.
Now, the first part of our broadcast today is going to focus on grouping under
3D1.2.
And we are going to go through each of the rules--(a), (b), (c), and (d)--individually,
and so let's just do a quick review of these rules before we get started.
At
3D1.2,
grouping rule (a) states that if you have multiple counts
that involve the same victim
and the same act,
that these multiple counts of conviction represent one single composite harm and should be grouped
together under this rule.
Rule (b)
is similar to Rule (a)
in that you still are looking for multiple counts of conviction that involve the same victim,
but now you're looking at whether
those multiple counts comprise 2 or more acts that were connected by a common criminal
objective
or common scheme or plan.
Rule (c)
states
that when you have a specific offense characteristic or another adjustment to
one of the counts
that embodies the conduct of
the other count,
these offenses represent a single composite harm
and should also be grouped under this section, 3D1.2(c).
Finally, the last rule
is specifically for offenses that are based on an aggregate,
either an aggregate amount of harm, an aggregate amount of quantity,
or some kind of ongoing
or series of behavior
for which you can aggregate
the amounts under application of the guidelines.
Krista, if you don't mind, I am just going to jump in here for a minute and make a comment on the
format of our program today.
Now, the hard and fast rule for guideline application, as I'm sure a lot of you may know and we reiterate
time and time again,
is that the book is to be applied in order. You start at the beginning of the book, Chapter 1,
and work your way through to the end, applying the book in order.
We have provided in your packet of materials a multiple count checklist that will assist
you in doing that--just going through step by step the process in order.
However, we're sort of going to deviate from that. As we've mentioned earlier, it
seems that there's always an exception to the rule.
And this is one of the places in the guidelines
that we do make an exception to this rule, and the exception that we make is that we
advise
when you're looking at the grouping rules at 3D1.2 that you begin
by looking at Rule (d). Now, we know it's not the first rule, but we do suggest that you
begin by looking at Rule (d).
One of the reasons we actually suggest this is because probably about 70 percent
of the cases that you deal with involving multiple counts
are going to be counts that can be grouped at Rule (d).
So, in a sense, if you can get that out of the way at first, then you don't even have to fool with
the other rules, which is nice.
So having said that then, Krista, why don't we just go ahead and get started then with the
discussion of Rule (d)? Exactly. We are going to start our discussion with Rule (d),
and even though it's the last rule, as Rusty mentioned in the introduction,
it is probably the easiest to deal with.
And as you will see, there are
lists of the offenses or the guidelines that are included in the application of
Rule (d)
and others that are excluded from the application of Rule (d).
In addition, even though this is not a broadcast on relevant conduct,
part of the reason why we advise grouping under Rule (d) first is because of the interaction
between that specific rule and relevant conduct.
But before we get into that discussion, we are again going to turn to Rusty Burress,
and he's going to give us a brief introduction of grouping under Rule (d).
More counts than any other type of count are going to fall under this type of
rule. And that rule says that
if counts use the same or similar guidelines.
I got 50 counts of drug trafficking and they use the same guideline. Each count uses the 2D1.1
drug trafficking guideline. And if that
guideline is included
at 3D1.2(d). In other words,
if you go into your guidelines manual to 3D1.2 under section (d) and we list
the guidelines that are covered there and
drug trafficking is listed there.
Then
you apply the guidelines as if for a single count application.
Basically what you do, you add up the quantities of the drugs, you apply the guidelines one time.
They have been grouped together. They are treated as a composite harm
as such
because what you've done, you've looked at the harm from each of the counts
by aggregating the quantities.
You're giving some consideration for all that harm when you apply the guidelines that
one time.
Now let me get back to the interaction between relevant conduct and Rule (d).
When you are applying the guidelines, when you are at the relevant conduct guideline
1B1.3 there's a special provision under (a)(2) of 1B1.3
that states
for offenses that are listed as included for grouping under 3D1.2(d)
those offenses are subject to what we refer to as expanded relevant conduct.
And what that means is that the time frame for the acts that you're allowed to consider
of the defendant
and the limited acts of others
has been expanded beyond the standard time frame of relevant conduct.
The standard time frame of relevant conduct advises us that any act of the defendant that
occurred
during the commission of the offense of conviction,
in preparation for that offense,
or to avoid detection or responsibility for that offense of conviction
is relevant conduct.
However,
for the special guidelines that are listed at
3D1.2(d)
but referred to in relevant conduct section (a)(2),
those offenses now have been broadened.
You can look at the acts of the defendant or
limited acts of others
that occur
during the same course of conduct or common scheme or plan
as the offense of conviction.
And as you probably already know, when you were applying relevant conduct if you have,
let's say,
5 counts of drug trafficking when you go to 2D1.1
and apply that guideline for the first time
you are not simply limited
to the amount of drugs or the conduct of the defendant that occurred during that first
count of conviction.
You know that relevant conduct would allow you to expand your application to include
all conduct of the defendant,
all drug quantities that were involved in these counts of conviction
that were part of the same course of conduct or common scheme or plan as that first count.
So technically what you've done is
you've grouped those offenses
before you get to Chapter 3
because of relevant conduct.
Relevant conduct is allowing you to aggregate all of that
quantity
before you even get to your decisions about the grouping rules.
But what we're going to do now is take a look at the list of offenses
that are going to be included under this provision.
The thing that's nice about grouping at Rule (d) is that we do give you a list
of offenses right there in the guideline and say these are the types of offenses that are
groupable at Rule (d).
Also, these are the ones that we mention at relevant conduct, 1B1.3,
that are subject to expanded relevant conduct. So let's take a list--take a look at the
list of
the types of offenses that our groupable at Rule (d). Things like drug trafficking, theft,
money laundering, firearms.
You may notice that this list, while it has a number of different offenses,
all of these offenses have something in common.
There is either a total amount of harm or loss, there is
some sort of aggregate quantity involved or some sort of other aggregate measure of
harm or loss, or these types of offenses
represent behavior that is ongoing or continuous
in nature.
On the other hand, we also have a list of offenses at 3D1.2(d) that we specifically
exclude
from the application of this rule.
Let's just take a look at those types of offenses--robbery, assault, kidnapping,
criminal sexual abuse, these types of things.
The one thing you'll notice about these offenses is that
they do not represent ongoing or continuous behavior; they actually represent separate
and distinct
harms for each individual offense.
That's right.
So let's take a look now at specifically what Rule (d) says under the guidelines.
And what Rule (d) says to us is
that when you are grouping under Rule (d),
if counts use the same
(or similar) guideline,
and
if that guideline is included in the list at 3D1.2(d),
you're going to apply the guidelines as if for a single count application.
So as I just mentioned in the example that we used
earlier,
where you have 4 or 5 counts of drug trafficking,
what you've done is you've aggregated all of the quantity and used one guideline
one time. That is probably one of the most important things to remember about grouping
under Rule (d).
You want to make sure that when you have determined
that these multiple counts
are groupable under this rule that you are applying the aggregate quantity, the aggregate
conduct, the aggregate behavior of the defendant
in one guideline
at one time.
That's right. We can't reiterate that enough-- applying the one guideline one time at
Rule (d).
And since we as trainers like visuals so much, let's just look at a visual of Rusty's
example of the grouping of the drug counts, what that might look like.
Here we have 4 counts of drugs, and we've got them separated out into their
each count box.
What you're going to do when you group at Rule (d), you remember, you apply 1 guideline
1 time,
and the offense level for that group of counts is going to be based on the aggregate, so
whatever quantity
of drugs is associated with each of those counts of conviction is simply
going to be added up and plugged into that one guideline for one application.
Exactly.
We're going to get started with our fact patterns now, and these fact patterns are going to deal with
grouping under Rule (d)
so that we can further demonstrate the analysis to you.
So in our first fact pattern, we have a defendant
who is convicted of, in count 1,
transportation of a stolen motor vehicle.
The defendant
stole a car with a fair market value of $20,000.
After the defendant stole this car,
he transported the vehicle across state lines,
after which he stripped off parts, which he then sold to an unknowing individual at a
body shop in a neighboring state for $5,000.
That comprises the conduct in count
2, transportation of stolen goods,
where, again, he sold the parts for $5,000.
Now both of these counts go to guideline
2B1.1.
Rachel, why don't we talk about the analysis of how these guidelines would work
for the grouping of multiple counts? Sure. In keeping with the exception that we gave you
before we started our discussion of each of these rules,
we tell you to look at Rule (d) first. So the first thing we're going to do with these 2 counts
of conviction is look at 3D1.2(d)
and see are these offenses that are listed as being
groupable at Rule (d).
And we see that when we look at our list at 3D1.2(d), they are listed.
2B1.1, both of these offenses go to that guideline, and they are both
listed at 3D1.2(d).
You'll also notice, as we talked about, that these are the type of offenses that are subject
to the expanded relevant conduct that we were talking about earlier.
And when you
apply relevant conduct correctly, you've already in essence grouped these 2 counts together.
So the
application of the guidelines for these 2 individual counts will be the one guideline
one time,
2B1.1. The "expanded" relevant conduct
is going to include both of these loss amounts,
and the aggregate amount
of loss is going to be applied to that one guideline one time.
So your total amount of loss is $25,000, and
whatever the offense level calculation for that aggregate amount is, that's going to be the
offense level
for those 2 counts of conviction.
Now let's look at our second fact pattern to
have another illustration of grouping at Rule (d).
In this particular fact pattern
we have, again, 2 counts of conviction.
Actually, we have more than 2 counts of conviction. We have 2 different scenarios here.
We have
10 counts of
violation of 18 U.S.C. 1956, it's a money laundering statute.
The corresponding guideline for this violation is going to be 2S1.1,
and the total value of funds laundered through these 10 counts is $2.5
million.
Now, the second group of counts that we're looking at is counts 11 through 15.
This is a violation of 18 U.S.C. 1957, a different money laundering statute,
for which the corresponding guideline is 2S1.2.
And the total value of funds laundered for these counts is
$150,000.
So, Krista, how would we go about an analysis for grouping of these counts?
Well, in order to keep consistency, the place we're first going to look is at 3D1.2(d)
to see if these are types of offenses that are based on an aggregate.
And if we look at 3D1.2(d),
we'll find that
2S1.1
and 2S1.2 are both listed as groupable under Rule (d).
And this fact pattern is a little bit different than the one that we just discussed because
now we're looking at
2 different guidelines--we're looking at 2S1.1 and
2S1.2
and trying to see if we can
group these and base these on an aggregate under Rule (d). They are both listed there,
but as you will learn later in the broadcast, it doesn't necessarily mean
that when 2 counts are listed as groupable under Rule (d)
that you are going to use Rule (d)
for grouping those counts together.
However, in the first 10 counts of 2S1.1,
if you are applying relevant conduct correctly and you're using your expanded relevant conduct,
you know
that when you go to the 2S1.1 guideline for the first time
your expanded
relevant conduct is going to aggregate the value of the funds laundered.
And that is the primary determinant of the offense level under 2S1.1.,
how much money was laundered during this offense.
So when you go there for the first time you are going to aggregate the total amount of laundered
funds,
that equals $2.5 million, and therefore, you have grouped
counts 1 through 10
under Rule (d).
Now let's take a look at counts 11 through 15, violations of title 18 section
1957.
This guideline, 2S2.2,
also considers the value of the funds laundered.
This guideline is also listed as groupable under Rule (d).
So when you go to 2S1.2 for the first time
you are going to--using your relevant conduct analysis and your expanded relevant conduct--
you are going to aggregate, again, the value of the funds that were laundered in counts 11
through 15 for a total of $150,000.
Now, because both of these offenses are listed at Rule (d),
and when you consider relevant conduct
when you are looking at, let's say, 2S1.1 for the first time,
the court could make a determination that the 2S1.1 counts
in addition to the 2S1.2 counts
are part of the same course of conduct
or common scheme or plan as the offense of conviction,
which would allow you to aggregate
all of the funds laundered
in all 15 counts.
So the court could determine that they are part of the same course of conduct or common
scheme or plan,
and
the value of the funds from all 15 counts should be added and applied to the
guideline
that produces
the highest offense level,
which in this case is
2S1.1.
So there we see a different example where you're using
2 guidelines that aren't the same
but are similar, where you can use that to aggregate the conduct under one guideline
one time.
Now I want to jump in here and make a point off of a point that you just made.
Just because a guideline is listed at 2D1.1 as being groupable
or subject to the expanded relevant conduct
doesn't necessarily mean that you can group all of those counts together.
What I mean by that is this:
what you have to do sometimes is look at and evaluate the individual guidelines and
determine what is the characterization of the money involved.
For example, if you have 2 counts of conviction, 1 being
a fraud count at 2F1.1 and the other being a tax count at
2T1.1,
you have to examine those guidelines and what is the characterization of the money in
those guidelines.
The loss definition at 2F1.1 is the value of the property taken, damaged,
or destroyed. Well, the determination for the money or the tax loss at the tax guideline
is different. There are any number of formulas
that you have to compute in order to determine what the tax loss is.
So thinking back to the rule when applying
or grouping counts pursuant to Rule (d,)
you're going to be applying 1 guideline 1 time.
Well, in a situation where you have a fraud count and a tax count,
how are you going to aggregate
the amount of monies involved in both of those counts and then plug that into one guideline?
Well, the simple answer is you're not able to do that because the 2 loss tables--
if you look at those 2 guidelines--
are also different, so there's no mechanism for
applying one guideline one time based on the aggregate amount of monies in both of those
counts of conviction.
On the other hand,
just because a--an
offense, excuse me, is listed as excluded from grouping at Rule (d)
doesn't mean that it can't be grouped pursuant to some of the other rules--(a), (b), or (c).
So having said that, maybe we should move on with the discussion of some of our other grouping
rules. Exactly.
One thing that we need to point out before we get to grouping under Rules (a), (b), or (c) is
that the operation of these grouping rules differs
from the operation of grouping under Rule (d).
We have repeated again and again that when you're grouping multiple counts
under Rule (d),
you apply one guideline
one time.
Well, grouping under Rules (a), (b), and (c)
doesn't quite work in the same way.
So, again, we're going to go to our principal training adviser, Rusty Burress, who is going
to give us a
brief introduction as to the
mechanics necessary to group counts under (a), (b), or (c).
If counts group under Rules (a), (b), or (c),
you apply the guidelines separately
to get an offense level for each count.
And then you use the highest offense level. Now, let me give you some examples, and that will explain what this slide
is
saying to you.
I have 2 counts of conviction.
And I've looked these counts up in my statutory index, and I see the guideline that is used for each of those, and
it turns out that I didn't group them under Rule (d). So I know I didn't treat them as a composite harm
by applying the guidelines one time for both of those counts.
But maybe they are going to group under Rules (a), (b), or (c).
Now for count 1, I looked in the statutory index; I know which guideline I am using.
I apply the Chapter 2 guideline.
I apply the Chapter 3 adjustments all the way down to obstruction.
Now what that means, and you've looked at the worksheet. Obstruction is at the bottom of the Worksheet A.
In other words, I have applied the Worksheet A for count 1.
Now for count 2,
I've done the same thing. I've looked at the statutory index, and gone back to the Chapter 2 guideline and applied Chapter 2 and Chapter 3, and at the bottom of
that worksheet A, I've got a number for that count as well.
That number is called the adjusted offense level.
So I have an adjusted offense level for each of those counts.
What I am going to do now is, I have come up with that number
and now I am going to go through this process to decide how am I going to group these counts.
Do they group under Rules (a), (b), or (c)?
As you can see, the operation, or the mechanics if you will, for grouping pursuant to Rules
(a), (b), and (c)
is different than the rule for grouping at Rule (d), which is one guideline, one time.
Let's look just a little bit more closely at the distinction between grouping at Rules (a),
(b), and (c)
and grouping at Rule (d).
If you have
counts that group
pursuant to Rules (a), (b), or (c) under 3D1.2, what you're
going to do is apply the guidelines separately
in order to get an offense level for each count of conviction.
Then what you're going to do
is use the highest offense level for the group. In other words, you look at
all of the counts of conviction that you have, determining your offense
level for each count separately,
and whichever produces the highest offense level--
that's going to be the offense level for the grouping of those counts under Rules (a), (b), or
(c).
And again, we're going to deviate just a little bit from the order of the book, and we're going to talk
about grouping under Rule (c) first.
The reason is that sometimes this rule has caused some confusion
for people who are applying the guidelines because it is a little bit complex.
So what we're going to start off with is looking at the exact language that's contained in
3D1.2(c).
What 3D1.2(c) says
is that 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.
What that means is
that when you're applying the guidelines if in one of your counts, a specific offense characteristic,
or a Chapter 3 adjustment
to that count
embodies the conduct of the other count of conviction,
those counts are deemed to represent a single composite harm
and, therefore, would be groupable under 3D1.2(c).
One thing I want to point out, if you have noticed, is that that exact language says
that you need a specific offense characteristic
or other adjustment too.
This grouping under this subsection would not include if
a base offense level would embody the conduct or if a cross-reference would embody that conduct.
You're looking specifically at a specific offense characteristic
or a Chapter 3 adjustment to make that determination as to whether
the conduct of the other count
is embodied
by that adjustment.
So what we're going to do now
is to turn back to our fact patterns
to help illustrate the analysis that goes on when you're grouping under Rule (c).
So here we go.
Fact Pattern 3, we have a defendant
who is convicted in count 1
of drug trafficking, a violation of
Title 21 U.S. Code section 841,
and
in count 2
we have the defendant convicted of
bribery.
The corresponding guideline is 2C1.1.
When we apply 2D1.1,
there was an increase to the offense level that was given pursuant to
3C1.1,
obstruction.
And that offense level under 2D1.1 for count 1 was determined to be an offense
level of 16, which does include that obstruction adjustment.
The offense level for count 2 of the bribery offense is an offense level of 20.
Let's talk a little bit about the analysis for this fact pattern.
Okay, this is a good fact pattern to illustrate one of the questions that people may
have when it comes to grouping under Rule (c).
You will notice that
when you're applying the guidelines for your drug distribution count--well, first of all, let me
back up a little bit.
The first thing that we want to do, as usual, is look at 3D1.2(d)
and see do we have offenses here that are listed as being groupable at 3D1.2(d).
And you will notice that they are.
Both of them are guidelines
that are listed at 3D1.2(d),
2D1.1, and
2C1.1.
Remembering the general rule, however, when grouping at Rule (d) you apply 1 guideline,
1 time
based on an aggregate amount.
Well, when we look at these 2 counts--drug trafficking and bribery of a witness--
there's no conduct or amount
of harm or loss or quantity or that type of thing to aggregate and plug into one
of these guidelines.
So then we want to move on to another one of the grouping rules to see if Rules (a), (b), or (c)
apply.
So we're going to move on and
we look as we are
applying the guidelines for our drug trafficking count at 2D1.1.
We go through the specific offense characteristics, and then we come to Chapter 3 and determine
if any of our Chapter 3 adjustments apply.
And, as Krista walked you through
in the presentation of the fact pattern,
we are going to be applying the obstruction of justice enhancement in Chapter 3 because
of the behavior
in the bribery count.
And so because of that application,
that is going to embody the conduct of the bribery count, and that would be a Rule (c) grouping.
The application of that Chapter 3 adjustment is going to thus embody the conduct
of the bribery of the witness count,
which is going to result in a Rule (c) grouping.
Another tidbit to put in
here at this moment is that
actually in the obstruction guideline at 3C1.2,
we have an Application Note 8 that specifically directs you any time you have an
obstruction offense, in this case the bribery of the witness,
in conjunction with the underlying offense, in this case the drug trafficking,
that is automatically going to be a Rule (c) grouping.
So if it's not necessarily clear to you from the very beginning--if you missed it, so to
speak--
this is an example of a specific Application Note that's going to direct you
that this is automatically a Rule (c) grouping.
Another reason why it's very important that you make sure you read everything--all of the
guideline, all of the application notes, all of the commentary,
all of it. That's right. Another point I want to make
before I begin--before you get on with this--
is that you may have noticed that the offense levels between the 2 counts were different
and that the offense level for the drug count was actually
higher
even though it is a Rule (c) grouping. The bribery was higher. I'm sorry, the bribery was higher.
And the question is if you're grouping them together, does it matter that that is lower?
And it doesn't matter. It's still a Rule (c) grouping. Did you want to elaborate on that
before we went any further?
Sure. It doesn't matter that the count with the obstruction enhancement is a lower offense
level, and what we mean by that is when you calculate the drug guideline
you get an offense level of 16, and that offense level
contains the adjustment for the obstruction under 3C1.1.
The bribery count
is an offense level of 20.
So sometimes people get a little bit confused by saying that, well, if the offense level is
lower,
how can that possibly embody the conduct
of this other offense which results in a greater offense level?
And the truth is,
when you group them together, you are choosing the highest offense level anyway.
So the offense level for this
group will be an offense level of 20.
So the conduct has been embodied even though that one particular count
may not have reached a higher level than the other count that was being embodied by that
specific offense characteristic. That's right.
Okay, we have one more fact pattern that we're going to use to illustrate
the grouping at Rule (c):
Fact pattern number 4 that you will find in your materials. We have a defendant who is convicted
of
1 count of burglary, which is a violation of 18 U.S.C. 1153.
The corresponding guideline for that is going to be 2B2.1.
The loss amount--there is a specific offense characteristic at 2B2.1
that provides an increase for any loss
that occurred during the offense,
and it is a 2-level increase.
Now that loss amount is going to represent the value of the stolen property, which is
going to comprise the conduct in our second count of conviction,
which is a violation of 18 U.S.C.
section 662.
The corresponding guideline for this count of conviction is going to be
2B1.1.
Krista, how would you walk us through an analysis of grouping these counts?
Well, again, we are going to start by looking at Rule (d) to see if these are offenses
that would be groupable because they are based on an aggregate.
If you look at 3D1.2(d),
you will see
that 2B2.1, the burglary count,
is specifically excluded from grouping under Rule (d), and as you know from our first
fact pattern,
2B1.1
is included
for grouping under the subsection, but because both of them are not we cannot group these
under Rule (d).
Now, as Rachel mentioned,
when you are applying the
burglary guideline, 2B2.1,
and you get to the subsection that deals with loss,
the value of the property taken, damaged, or destroyed
is the value of the property that was possessed in count 2.
So when you apply the burglary guideline,
the loss calculation will embody the conduct
of the other count
of possession of stolen property.
So you then have a Rule (c) grouping.
And that's a good example of when you have two counts of conviction that
represent
a single composite harm. We have the burglary,
we have the possession of the stolen property.
The stolen property was taken from that burglary,
so that is why Rule (c) works in the way that it does. We have a single composite harm.
The loss from that second count has already been considered in the first count,
so that's why we have a Rule (c) grouping in this situation.
Now, Krista, what happens if you have 2 counts of conviction
and there is a specific offense characteristic in one of the counts that is there but
it's not applied for whatever reason?
Is that still a Rule (c) grouping? And if so,
could you explain that to us? Sure. It absolutely is. We have certain situations where
you will have a specific offense characteristic that may not be applied either because of
a
specific instruction in the guidelines
or because the definition won't allow the application of that specific offense characteristic. And
let me give you an example of that.
If you have a situation where a defendant is convicted of 1 count of bank robbery
and 1 count of assault on the teller
during that bank robbery,
let's say in this situation, and this set of facts when the defendant robs the bank and injures
the teller
her level of injury does not
get to the level of bodily injury as described in the guidelines manual.
So when you're applying the robbery guideline, when you get to the specific offense characteristics
for injury
you're not going to be able to apply
that offense level or those additional offense levels for bodily injury simply because
the teller's injuries did not rise to the level
as defined in 1B1.1.
However,
after you apply the robbery guideline and then you apply the
the assault
guideline,
what you will find is that when you go through the grouping rules
you can still argue that Rule (c) applies because
that specific offense characteristic for injury
would still embody the conduct of
the assault.
So it is possible that you could have a situation where
the specific offense characteristic is not necessarily given,
but for the purposes of the grouping rules the conduct would still be embodied from the other
count.
One of the things that I like to use when I'm explaining grouping pursuant to Rule
(c)
is, say that if you've got some sort of physical nexus, so to speak, between the
2 counts of conviction, either a specific offense characteristic
or a Chapter 3 adjustment
that's going to be a Rule (c) grouping, and that might be a good way to think about it
if you run across a situation like this where
you might be thinking twice because you didn't apply it. It didn't rise to the level in this case--
the injury didn't rise to the level of what is needed in order to apply that specific
offense characteristic at the robbery guideline.
However, if that physical nexus, so to speak, is there,
then that's all you need in order for it to be a Rule (c) grouping. That's right. That's right.
Well, it's almost time for us to go to our break, our 5-minute break, but I want to
go to Laurie first and see if we have any questions.
Yes, we do. Actually, this is one of those questions that came in earlier
this morning. This is from Eastern
Kentucky,
and the question at the bottom says, "Can these offenses be grouped under
3D1.2?
If so, how?"
Now, the facts are
a defendant pled guilty to 2 counts of theft concerning programs receiving federal
funds
in violation of 18 U.S.C. section 666
(a)(1)(A)
and 10 counts
of engaging in monetary transactions
in property derived from
specified unlawful activity,
and this is in violation of Title 18 U.S.C. 1957.
Briefly, the defendant, who is employed by a hospital as a plant operations manager,
stole equipment and supplies, such as air conditioning units, lumber, etc., from the
hospital.
Also, the defendant set up a bogus bank account.
In his capacity as the plant operations manager,
he would bill the hospital for services that were never performed
and then have the payments transferred or deposited into his bogus bank account.
It's a good question.
And looking at the statutes of conviction, when you go to Appendix A to decide which
guideline you're going to use
for the violation of Title 18 section 1957,
we know for those 10 counts the applicable guideline is 2S1.2.
For a violation of Title 18 section 666(a)(1)(A),
we are given 2 options. We can either go to 2B1.1 or 2F1.1,
depending on the specific facts
of the case.
Regardless of whether you use 2B1.1 or 2F1.1, the analysis is still
going to be the same.
And that is
you start with your first 2 counts of conviction for either the theft or the fraud, 2B1.1
or 2F1.1.
We look at
Rule (d), 3D1.2(d),
to see if
these offenses are listed as groupable under this subsection,
and they are.
When you then are applying your guidelines for that
first count of the theft of property,
you will use your expanded relevant conduct,
you will aggregate the conduct of the defendant,
the loss involved in these transactions in the criminal conduct, and you will
aggregate
all of that behavior applying 1 guideline
1 time, whether it's 2B1.1 or 2F1.1.
But let's set that aside for a moment
and deal with the 10 counts under 2S1.2.
When you look at 2S1.2 and when you look at your grouping rules, again, we're
going to start with Rule (d).
When you look at Rule (d), you will notice that
2S1.2 is listed as groupable under this subsection.
Therefore,
what you're going to do is very similar to what you did with those theft counts.
You are going to look at that money laundering behavior,
and using relevant conduct you are going to apply 2S1.2
one time. You apply 1 guideline
1 time, and you are aggregating
the value of the funds that were laundered
under
that money laundering behavior.
You're not going to be including
the loss that was used--that was obtained or the harm that resulted from the theft.
You are only looking at the money laundering behavior in order to apply that money laundering
guideline. Just as when you apply either the theft guideline or the fraud guideline for
the first two counts,
you're only going to consider the loss that occurred because of the theft.
Then what are you going to do? Because now you have 2 count groups--you have
1 count group of 2B1.1 or 2F1.1
and 1 count group that
deals with the money laundering behavior under 2S1.2.
Now, even though both of these offenses are listed as groupable under Rule (d),
we have different characterizations of the money.
Under 2B1.1 or 2F1.1,
the law says the value of the property taken, damaged, or destroyed.
Under 2S1.2,
the determination is based on the value of the funds laundered.
So we are not going to be able to take all of the conduct involved in all 12 of these
counts
and aggregate that under 1 guideline
1 time.
So we're not going to be able to group
2B1.1--that count group--
with 2S1.2--that count group-- under Rule (d).
We have to find another grouping rule in order to do so.
Well, when you're applying your 2S1.2 guideline,
there is a specific offense characteristic
that states that the defendant knew
that the funds laundered were the proceeds of a specified unlawful activity
that you would increase by a certain amount of levels.
And I believe that that specific offense characteristic would apply in this case. The defendant
knew that what
he was doing in order to obtain these illegal funds
was
an illegal activity.
So that specific offense characteristic is going to embody the conduct
of the theft of property.
So we have a Rule (c) grouping in this case. We've used Rule (d)
in order to aggregate
the first 2 counts
and the counts of the money laundering,
but then in order to put those together to come up with a combined single offense level
we're going to group these 2 count groups under Rule (c).
Do we have any other questions, Lauren?
Yes. This should be our last one. So if anybody else has any questions out there, be sure to fax them in
and then we'll get to them at the end of the program and after
we take our break and at the end of the program.
This last fax that we have here
is again on whether these counts can be grouped, and
if so, how?
The defendant is convicted of 3 counts of unlawful possession of a firearm,
and all the counts arise out of a single incident involving 3 different weapons.
Well, again, let's start with looking at Rule (d).
When you look at Rule (d), unlawful possession of a firearm falls under guideline
2K2.1.
We have 3 counts of 2K2.1.
So the analysis is going to be that you are going to group these offenses pursuant to
Rule (d).
You're going to aggregate the number of firearms,
aggregate the conduct
of the defendant,
and apply the guidelines
as if they are groupable under Rule (d), which they are. Right, 1 guideline, 1 time based on the
aggregate amount of, in this case, guns.
So, once again, applying 2K2.1 based on however many guns are involved in the
offense and that's going to be your single offense level for these--I believe it was
3 counts of conviction.
Please don't forget to fax us in your questions.
We're going to take time now and take a 5-minute break.
So we'll see you after the break.