Sentencing and Guidelines: Multiple Counts, Part 2 of 2

Welcome back. Glad to have you back. I trust you enjoyed your 5-minute break.
For the remainder of our program, we're going to finish up with our discussion of the grouping
rules at 3D1.2 at Rules (a)
and (b), and then we are also going to move on with a discussion of assigning units for
these separate harms, if you have them,
discussed at 3D1.4.
Now the thing about grouping rules
at (a) and (b) at 3D1.2 is that these are the only
2 rules that require a determination of a victim.
We're going to look more closely now at the actual language of the rules,
first looking at 3D1.2 Rule (a).
The specific language in the guideline
states that when you have counts that involve the same victim and the same act or transaction
that this is going to be a Rule (a) grouping.
Going on and looking at Rule (b),
3D1.2(b)
states when you have counts that involve the same victim and 2 or more acts or transactions
that are connected by a common criminal objective or constituting part of a common scheme or
plan
that these are then going to be a Rule (b) grouping.
Now in some instances, it's going to be very clear to you that you've got 1 act versus 2
acts.
In other instances, however, it may not be
quite as clear, and we would recommend that you not split hairs and,
you know, worry yourself trying to determine do I have 1 act or do I have 2 acts.
As long as you have the same victim, remember Rules (a) and (b)
are the only rules that require victim determination. There's no victim consideration for Rule (d),
and there's no victim consideration in Rule (c).
So as long as you've got the same victim, don't
drive yourself crazy trying to determine if you've got 1 or 2 acts.
Just make sure that you have 1 victim. And the operation for the 2 rules is the
same.
You're going to
calculate an offense level for each count of conviction separately
and pick the higher of the two.
So if you can't make that decision,
the end result is going to be the same.
Let's go ahead and look at a fact pattern, Fact pattern number 5,
to illustrate a discussion of grouping
pursuant to these last 2 rules.
In this fact pattern, we have
the first count of conviction, which is a violation of
21
U.S.C.
841(b)(1)(B).
It's a possession with intent to distribute marijuana.
The corresponding guideline for this count of conviction is going to be
2D1.1.
Our second count of conviction is a violation of 21 U.S.C.
841(d)(2).
This is unlawful possession of a listed chemical,
and the corresponding guideline for this count of conviction is going to be
2D1.11.
Now the facts of this fact pattern would indicate that the defendant
only distributed
marijuana and was not involved in the manufacture of any other controlled substances.
So knowing those facts, how would these 2 counts group together, Krista? Well,
in keeping with consistency, we are going to first look at Rule (d) to see if these
offenses are groupable under that subsection.
If you look at 3D1.2(d),
you will see that both
2D1.1 and
2D1.11
are listed as groupable
under 3D1.2(d).
But as we have been reminding you throughout
the broadcast,
just because offenses are listed as groupable under the subsection does not necessarily
mean
that they're going to be grouped under Rule (d).
In this case and this fact pattern,
we're specifically instructed that the defendant had nothing to do with the manufacture of
any other controlled substance.
He possessed with the intent to distribute marijuana
and unlawfully possessed a listed chemical which he did not use for the manufacture.
So in this situation,
we are not going to be grouping these offenses under Rule (d). There's no mechanism
really to get
these
2 separate types of conduct aggregated into
1 guideline 1 time.
So these offenses are not of the same general type, and the conduct cannot be
aggregated.
So we're going to have to move on
to our other groupings rules
in order to determine how we're going to come up with that combined single offense level.
And in this situation,
if you read the commentary in the Application Notes at 2D1.11, at specifically
Application Note 3,
you will find
that there is specific language instructing us to group these 2 types of offenses under
Rule (b).
So, again, it is very important to read all of the Application Notes,
all of the commentary because oftentimes there will be some specific language
that will further instruct you as to the grouping rules
in particular instances, and this is one of those situations. So
let's move on to our next fact pattern
to further illustrate our analysis of the multiple count rules.
In this fact pattern,
we have a defendant
whose first count of conviction is
found under guideline 2D1.1.
This was a cocaine distribution conspiracy
that lasted 10 years.
And during this conspiracy the defendant abused cocaine
and also robbed people of drugs and money
in order to support his cocaine habit.
Count 2
involves the defendant being convicted of first degree murder.
What happened in this situation is that a drug deal went bad
and a bystander was killed.
So in this case, Rachel, how are we going to group these offenses together?
Well, I love this fact pattern. It is a great fact pattern because it's tricky and
it also requires you to think out of the box, so to speak.
So let's get started with our analysis by looking at our 2 counts of conviction. First
of all,
we want to look at Rule (d). Are either
one of these offenses types of offenses that can be grouped pursuant to
Rule (d)?
And as you have already known from this
broadcast, 2D1.1 is listed at Rule (d). However, 2A1.1
is not listed at Rule (d). And as a matter of fact it is actually--it's not listed for grouping
at Rule (d). It is listed as specifically excluded.
All Chapter 2 part (a) offenses are specifically excluded from grouping at Rule (d) because
they represent
separate and distinct harms. They're not representing one composite harm.
So we're doing the calculations for our 2 counts of conviction.
And we come to
the first count of conviction, which is the cocaine distribution count.
2D1.1 is the guideline for that count of conviction.
Now as you're working through the specific offense characteristics you are going to come to a cross-reference
at the end of the guideline
that states that if a victim was killed during the course of the offense that would
constitute murder in violation of section 1111 of the U.S. Code,
then the cross-references to apply, and you are to go to the murder guideline and apply that guideline.
Now 1B1.5 is where you will find instructions for applying cross-references.
And 1B1.5 states that anytime you apply a cross-reference,
you are to come entirely out
of the guideline that you're working with
and apply that new guideline in its entirety. Unless you are otherwise specified to do so,
you are to apply that new guideline in its entirety.
So once again, we have the cross-reference applying here at 2D1.1,
and we're going to cross-reference to 2A1.1.
Now, because of this cross-reference,
we now have for guideline calculation purposes 2 counts
of murder,
or 2 counts that are going to be determined pursuant to the guideline at 2A1.1.
Now we still have in the real world, so to speak, 2 counts of conviction--one being the
cocaine distribution and one being
the murder count. So when you go to impose the sentence, you're going to have to impose the
sentence on the basis of
those 2 counts.
But for guideline application purposes,
we're sort of working with a different game here. We've got, because of the cross-reference
once again
and the fact that the victim
in the murder count is the same victim--this innocent bystander that was killed
during the drug distribution
count,
on the basis of that cross-reference,
we now have two counts of murder.
That's going to be, if you will recall, a Rule (a) grouping,
the same victim and the same act.
That's right. Now, thus far we've been discussing the grouping rules pursuant to 3D1.2,
where we have offenses
that are represented by--
that comprise a single composite harm.
So let's go back to the slide that we started off our broadcast with about the steps for
grouping.
We have gone through
the grouping steps,
we have discussed the grouping under Rule (d) and why it's so important to consider that rule first
and how we talk about applying 1 guideline
1 time whenever you have multiple counts of conviction
that are groupable
under Rule (d).
We've also spent some time discussing
the grouping under Rules (a), (b), and (c) as found in 3D1.2
and the differences between
the mechanism for grouping under Rules (a), (b), and (c) versus
1 guideline 1 time,
as we do under Rule (d).
The second step is where we're going to focus the rest of our broadcast today,
and that's for incremental increases.
And here we have the assignment of units
and those assignment of units results in additional offense levels because this--
these multiple counts have been determined to represent
a separate and distinct harm and, therefore, warrants
incremental punishment.
So, again, we are going to turn to our principal training adviser,
Rusty Burress, in another video clip, who is going to give us some information
about incremental increases and the assignment of units.
Now what do we do if we have more than one harm? How do we approach that?
Well, the incremental increases,
the assignment of units, and the additional offense levels.
Incremental increases--if there's more than one group,
here is the process:
you compare the offense level of the highest group to the offense levels of the other groups.
You compare each of my harms. What is my offense level for each of my harms?
I increase the offense level of the highest group-- the highest harm--according to a table.
This is all just purely almost mathematical at this point.
I've got the 5 counts of fraud that I've grouped together because they all grouped together under Rule (d), and the offense
level for those was a 23.
I had a robbery and assault for the same victim, and I grouped those 2 counts together and they
got a 24. I had a separate robbery that was a 28. Out of, what--5, 6, 7, 8--out of 8 counts of conviction,
and going through my grouping rules I decided, well, 8 counts of conviction but just really 3 harms.
And here is the offense levels for the harms. Now I want to give some increase in
punishment because it is just not one harm here, there are 3 harms,
and we want to give some more punishment for 3 harms.
At 3D1.4
you look at the offense levels
and you add units based on those.
The highest offense level--whatever that number
is--is going to get a unit.
A unit doesn't mean anything, it just translates into something: 1-4 levels less serious picks up
a unit; 5-8 levels less serious, at half a unit;
9 or more levels less serious,
no units.
So let's assign units here.
We have a 23, a 24, a 28.
Well, the highest of those is the 28, and it picks up a unit.
The 24 in comparison to the 28, that is close enough in harm that it
picks up a unit.
The 23 to the 28--that is 5 offense levels difference; it
is remote enough that it picks up a half a unit.
Again, looking at the guidelines tables--just a table in the book--at
3D1.4 you total the units to 2 1/2, and
at 3D1.4
it says
if you have 2 1/2 units, that's going to translate into 3 additional offense levels.
Three additional offense levels are
going be added to what? Well, our highest group that we were using is our most serious harm, was
a 28.
We've added the 3 additional offense levels, and we have an offense level of 31,
which is our offense level for these multiple counts of conviction.
Thank you, Rusty.
Now it's important to remember that
section 3D1.4
sanctions for additional or significant additional criminal conduct. So when you
have a count of conviction that represents an additional harm
or a separate harm,
you want to increase
your punishment for that--that significant additional criminal conduct, and you want to increase it
incrementally.
So let's look again at the rules at 3D1.4.
If you have more than one group,
what you want to do is compare the offense level for the highest group to the offense levels
of the other groups.
Then what you're going to do is increase that offense level of the highest group--that's
always kind of your starting point--
according to a guideline table that we give you at 3D1.4.
Now, when it comes to assigning units,
your highest offense level--the count or the group of counts for your highest offense level--
is going to get 1 unit.
Anything equal to that is also going to get 1 unit. And as you can see, you just go down
the table depending on
the levels that you have and add the corresponding number of units.
Now, the Commission has decided that anything that is 9 or more levels less serious is
probably less serious enough
not to warrant additional punishment, and therefore you're not going to get any
units for that. Once you determine your number of units, you're then going to plug them into the table--this
is the mathematical equation that we referenced earlier--
in order to determine how many offense levels you're going to add to
the count that has your highest offense level.
And as you will see, for example, if you determine that your counts are
going to give you 2 1/2 to 3 units, then you're going to add 3
levels
to the offense level for the highest
count there.
Now let's look at our final fact pattern, which is going to be Fact number 7,
for an illustration of
how the assignment of units is going to work.
In this particular fact pattern
we have a defendant who is convicted of 1 count
of distribution of heroin.
This is another violation of 21 U.S.C. 841,
and the corresponding guideline is going to be 2D1.1.
Our second count is going to be a forgery count,
a violation of 18 U.S.C. section 500, and the corresponding guideline for this count
is going to be
2F1.1.
The facts of this case would indicate that the defendant forged postal money orders in
order to support
his drug habit.
Krista, how would we talk about
analyzing this fact pattern for grouping?
Well, again, we are going to start with
Rule (d). Even though we've been discussing 3D1.4,
the place to always start when you're doing your analysis for multiple counts is
whether these offenses are groupable at Rule (d).
If you would take a look at
3D1.2(d), you will find
that
both of those offenses--both of those guidelines, 2D1.1 and 2F1.1--
are listed at 3D1.2(d).
However, and as we've cautioned you,
sometimes even though both of those offenses are listed there as groupable under
Rule (d),
that does not mean that
you will automatically group these offenses under Rule (d).
There is no mechanism
under the drug guideline or under the fraud guideline
that is going to allow you to aggregate the conduct and apply
1 guideline
1 time.
You're not going to be able to add the quantity of drugs
along with the value of the postal orders that were forged
and place that under 1 guideline
and
take care of the defendant's conduct in that way.
So Rule (d) is not applicable.
Let's then go and look and see if any of the other rules at
3D1.2
would apply to this defendant.
Well, looking at
Rules (a) and (b)
we know that we need
the same victim
and 1 act, as in Rule (a),
or in Rule (b), the same victim
and 2 or more acts connected by a common criminal objective.
In this situation we do not have the same victim.
The victim of the drug trafficking is society in general.
The victim of the forgery of the U.S. postal
money orders
is the U.S. Postal Service. So we have
2 different victims in this situation,
and therefore, Rules (a) and (b) are not going to apply either.
So let's take a look at Rule (c) now.
And we know that Rule (c) states when 1 of the counts embodies the conduct that
is contained as a specific offense characteristic in or other adjustment to the other of the counts, that
that would represent a
composite harm and would be available for grouping under Rule (c).
But, again, we don't have that in this situation either.
There's no specific offense characteristic or adjustment to either of the counts
that would embody the conduct of the other count.
So we know that we are not under 3D1.2.
We're not going to group these together because they represent a single composite harm.
So we're going to go on to 3D1.4.
And what we've established
by going to 3D1.4 is that we have
2 separate harms
that need to result in an incremental increase to the defendant's offense level.
So after you calculate
2D1.1 on count 1
and apply your Chapter 2 guideline, apply any
applicable Chapter 3 adjustments,
you're going to then apply the guideline for the forgery count.
And you
would apply your Chapter 2 guideline there and apply your Chapter 3 adjustments,
and then depending on which offense level comes out higher,
you're going to then assign units as you compare those 2 offense levels.
So you would assign units in this case because it does represent an incremental increase
and some separate harms that need to be further punished.
Now
we have
spent some time talking about the assignment of units,
and I think it's time now to see if we have any additional faxes that have
come in. So, Lauren, do we have any faxes?
Yes, actually, we have a couple that came in.
The first that we'll go to is from the Middle District of Pennsylvania. Thank you very much
for sending that question. And a reminder to anybody else: we still have
about 15 minutes left in the program, so there is plenty of time for you to
jot down a question and run it off to the fax machine if you have it.
Again, this question from the Middle District of Pennsylvania
is what about grouping multiple counts of fraud
and multiple counts of money laundering?
They appear to be separate and distinct harms
and are treated differently by their respective guidelines. So how could they be grouped?
In keeping with the rule that we've been working with throughout this broadcast, the first
thing we want to do is look at 3D1.2 and determine if these are offenses
that are listed at 3D1.2.
And we've touched on this today, and as you will know,
2F1.1 and 2S1.1--or even 2S1.2, depending on
which statute of conviction you have for the money laundering--
are both listed at
3D1.2 as groupable
under that rule.
These are also offenses that are subject to the expanded relevant conduct that we've been
talking about,
and how if you apply your relevant conduct correctly, you've already done your grouping.
So if you have the multiple counts of fraud, you're going to want to group all of those
together,
and your multiple counts of money laundering are going to group together. And the reason why
the fraud stays with the fraud and the money laundering stays with the money laundering
is what we touched on a little bit earlier in the show
and that is the characterization of the money.
As I talked about earlier,
the loss table at 2F1.1 or the definition of loss at 2F1.1
is the value of property taken, damaged, or destroyed,
and the corresponding loss table reflects that.
Well, the characterization of the money at the money laundering guidelines--both at
2S1.1 and 2S1.2--
describes that as losses being the value of the funds.
And the loss table in those guidelines reflects the value of the funds. Now, looking at the
2
guidelines, you can see that there's a difference, not only in the characterization
of the money but in the loss tables themselves.
So when you talk about applying 1 guideline 1 time,
aggregating the amount of monies involved
and plugging that into 1 guideline,
you can see that there's no mechanism in the guidelines to do that in a situation where
you have multiple counts of fraud and multiple counts of money laundering.
Now, it's possible,
however, that these counts can group.
Since they can't all group together in the fraud and money laundering groups
under Rule (d), it is possible that they could group under some of the other rules.
I know, Krista, you may want to talk about this as well.
There's a lot of case law
across the country on the grouping of money laundering and fraud
and grouping and money laundering in general. And what you really need to do is check
the case law in your district and in your circuit,
because there are certain ways that they explain across the country how to group fraud and
money laundering counts.
And for our purposes, I believe that
when you have
a fraud count and a money laundering count, or a group of fraud counts and a group of money
laundering counts,
usually there is going to be a specific offense characteristic in the money laundering count
that would be applied
that would embody the conduct
of that fraud count.
Sometimes that will happen,
specifically under 2S1.2. It's not really going to happen
under 2S1.1.
Now the Commission, I believe, would say
that money laundering
is so closely intertwined with the underlying offense. Money laundering is
the way to keep
the other unlawful activity going--the way to keep the fraud going, the way to avoid detection
or responsibility for the fraud.
And I think in most cases we would say that these offenses would be grouped
under 3D1.2--either under Rule (c)
or under Rule (b)--because they are just so closely intertwined
and just function to feed off of each other almost
that they would involve technically the same victim
and two or more acts or transactions. So we would advise that they are groupable under
Rules (b) or (c).
But we do realize that there is a lot of case law out there in
various circuits across the country. And in fact, there is a circuit conflict, so you want to
be sure
and check your case law and make sure
that your circuit--
you're following the way that your circuit has advised you to do.
So just be
careful about your grouping decisions when they--
they're going to be couched by the case law that your circuit has decided upon. That's right.
Lauren, do we have more questions?
Yes, we do.
Also along the fraud lines, I guess. Here's one that says, Can tax evasion
be grouped--I guess, guideline section
2T1.1 be grouped--with fraud
section
2F1.1
pursuant to
3D1.2(d)?
Not to get repetitive, but we are going to start again by looking at Rule (d).
And we know
that offenses
that are under 2F1.1
are groupable under Rule (d),
and we also know that 2T1.1 is included
as being groupable under Rule (d).
However, this is another one of those situations, as Rachel explained,
where you're not going to group these offenses under Rule (d) because there's no way to aggregate
the conduct,
the quantity of money involved under 1 guideline
1 time.
So you're going to calculate your fraud guideline
by itself,
apply your Chapter 2,
any applicable Chapter 3 adjustments.
You're then going to go to 2T1.1 and apply that guideline according to the
provisions of relevant conduct
and also then apply Chapter 3 adjustments for that
tax evasion count.
Then there is a specific offense characteristic in 2T1.1 that
allows--that would embody the conduct, let's say, of this fraud count.
And what that specific offense characteristic says is that if
during the tax evasion
any of the proceeds were from
unlawful criminal conduct, which in this case would be
the fraud,
you're going to increase by a certain amount of levels, and that
specific offense characteristic under 2T1.1
would embody the conduct
of the fraud count. So this would be a Rule (c) grouping.
Again, even though both of those offenses are listed as groupable under Rule (d), you still would
not group under Rule (d) because there's no way to aggregate that conduct. So you would
group these offenses under Rule (c).
Do we have any other questions, Lauren?
Oh sure, of course we do.
Uh-huh. We have--
this one says the defendant was convicted of drug distribution,
section--21 U.S.C. section
841,
felon in possession of a firearm, 18 U.S.C. section 922(g),
and use of a weapon during a drug trafficking offense,
Title 18
U.S.C. section 924(c).
The firearms forming the basis of the weapons counts were
both used in the drug distribution scheme.
So how could these counts be grouped?
The first thing I want to point out before we get started on our analysis of this particular fact pattern
is we have a violation here of 18 U.S.C.
924(c), and if you'll remember from the beginning of the broadcast, this is
one of those offenses that is specifically excluded from the grouping rules
entirely.
The statute requires a specified term of imprisonment
for this offense and also requires that that term of imprisonment is to run consecutively
to any other term of imprisonment imposed.
So the first thing we decide
is that
the 924(c) violation and the corresponding guideline, 2K2.4,
we're going to put it off to the side because it
does not apply when we're talking about the grouping rules.
The second thing we want to do--not to get repetitive again--
is to look at Rule (d) and see are these offenses listed as groupable at Rule (d).
And you will find that 2D1.1 and
2K2.1--the corresponding guidelines for the other counts of conviction,
the drug distribution and the felon in possession--
are both listed at Rule (d). However, there are some tricky things that happen here. Krista, do
you want to walk us through
the application of
these two counts? Sure.
Well, because of 2K2.4, because of that
924(c) count,
there is a special instruction contained in 2K2.4 which will tell you
not to apply any specific offense characteristic relating to the use of a firearm.
So when you're applying 2D1.1 for your drug behavior,
you're not going to give that increase for use of a gun
during that offense.
And when you're applying 2K2.1 for the felon in possession,
you would not apply specific offense characteristic (b)(5), which states that if you use or possess
any firearm or ammunition
in connection with another felony offense,
you would increase by 4 levels, and it also provides a floor in that specific offense characteristic.
But because of the 924(c) count, you are not going to be able to give
points under either of those specific offense characteristics.
Now even though, as Rachel mentioned,
both of these are groupable under Rule (d),
there's no mechanism to combine
drugs
and guns
into one table
and calculate it all under one guideline.
So we are dealing with either a Rule (a), (b), or (c) grouping.
We would apply the guidelines to the first count of 2D1.1,
apply all--the base offense level, the
specific offense characteristics except for the use of that gun,
and any Chapter 3 adjustments.
Then we're going to apply the Chapter 2 guideline
for the felon in possession count, 2K2.1, and you will apply the base offense level
and any specific offense characteristics except for that (b)(5) specific offense characteristic
for the use or possession of a firearm in connection with another felony offense.
Now here's where it gets a little tricky.
Depending on application under 2K2.1,
we have two different
options for how we're going to group these offenses together.
If under 2K2.1,
when you get to the cross-reference under (c)(1),
if the underlying offense--which would be the drug trafficking offense, the offense in count
1--if that offense
would result
in a greater offense level
than was calculated
under 2K2.1,
you're going to cross-reference out of the felon in possession guideline
to the drug guideline.
And in that situation you would have, as in Rachel's earlier example,
2 counts of
drug trafficking
that involve
the same quantity of drugs. Now, you don't want to aggregate these together,
but you would group these offenses under Rule (a) because you have the same victim and
the same act. It's the same calculation.
So if your cross-reference applies under 2K2.1
and you cross-reference out to the drugs, that would be a Rule (a) grouping.
However,
if the felon in possession count
results in a greater offense level
than the drug distribution count, you're not going to be able to cross-reference.
But remember when I mentioned
when we were talking about Rule (c) when sometimes a specific offense characteristic is not applied
but still would be considered to embody the conduct
of that other count?
Well this is exactly that situation.
If you don't cross-reference out of the felon in possession guideline
to the drug guideline because the felon in possession comes out higher,
that (b)(5) characteristic that I told you not to apply because of the 2K2.4
instruction
when you have the 924(c) conviction
you're going to group those under Rule (c)-- that embodies the conduct
of that other count of conviction, that drug trafficking.
So in this situation, it's either a Rule (a)
or a Rule (c) grouping depending on how 2K2.1 was applied.
I think that is all the time that we have for questions today.
But we want to remind you
that if you have any questions that we did not get to today,
please feel free to call us on the Helpline.
We're at 202-502-4545.
We operate Monday through Friday from 8:30 a.m.
to 5:00 p.m.
So please give us call with any kinds of questions that you have regarding guideline application.
And also please be sure to check out our website
at www.ussc.gov,
where there's plenty of educational materials and a summary of case law and training exercises
and lots of other information that will help you with your guideline analysis.
We hope you've enjoyed our broadcast. We want to thank you for joining us, but we're
going to go back to Lauren for just a couple minutes to wrap it up. Lauren. Thank you.
Thanks. I guess that wraps it up for today's broadcast. We've reached the end of our program.
Our next program in the Sentencing Guidelines series is scheduled to air this coming
July. And
its special focus will focus on Criminal History next time.
So be sure to watch
the FJTN Bulletin
for exact details as to when
it will air in your area, also the times when it will be
rebroadcast and all that other good information there. Please remember to fax in your
rosters,
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evaluations to help us plan our future FJTN programming,
and additional topics to be considered for programs
in the Sentencing Guidelines series. What kinds of things do you think we should cover
when discussing sentencing guidelines?
And, finally, I just want you to remember
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on the roster and fill out
the evaluation
form--the box on the evaluation form. We want everybody to fill out the evaluation form.
But if you are applying for CLE credit,
you also have that box to complete as well.
So with that, for all of us here today, thank you very much for participating, and
enjoy the rest of your day.