Download - Multiple Counts: Grouping Multiple Offense Types · 5/30/2018 · The Glock pistol possessed during the robbery was never ... of offense levels to the offense level of the count with

Multiple Counts: Grouping Multiple Offense Types

Wednesday, May 30, 201810:30 am – 12:00 pm

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www.ussc.gov (202) 502-4545 @theusscgov [email protected]

Krista Rubin Education Program Specialist

Office of Education and Sentencing Practice

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@theusscgov

www.ussc.gov helpline (202) 502-4545

[email protected]

Commission Resources

Who’s in the audience?

A. Circuit Staff AttorneyB. CJA Panel Attorney/

Private Defense AttorneyC. Federal Public DefenderD. JudgeE. Law ClerkF. U.S. Probation OfficerG. U.S. AttorneyH. Other

Years of experience with federal sentencing?

A. Less than 2 yearsB. 2 to 5 yearsC. 5 to 10 yearsD. More than 10 years

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Understanding grouping is the most difficult part of guideline application.

A. AgreeB. Somewhat agreeC. Neither agree or

disagreeD. Somewhat disagreeE. Disagree

In determining whether counts group, you must first decide whether the counts involve the same harm, regardless of what the rules state at §3D1.2.

A. TrueB. False

When two different guidelines are listed as “included” at §3D1.2(d), those guidelines must group under §3D1.2(d).

A. TrueB. False

When a guideline is listed as “excluded” from §3D1.2(d), does that mean that:

A. That guideline cannot be grouped under any other rule at §3D1.2; units must be assigned

B. That guideline can group under another rule at §3D1.2, if the proper criteria are met

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Today’s Objective:

• Demystify the process of grouping multiple counts of conviction

• Resources:• Discussion• Decision Tree• Scenarios

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What is “Grouping”?

•Grouping is the application of the rules in Chapter 3, Part D to determine a single offense level for defendants convicted of multiple counts

13There Are Two Sets of Rules Usedto Determine a Single Offense Level

1. “Grouping” (§3D1.2)

• Closely related counts are treated as a single, composite harm

• One offense level represents all counts

14There Are Two Sets of Rules Used to Determine a Single Offense Level (cont.)

2. “Assigning Units” (§3D1.4)

• Provides incremental punishment for multiple counts involving separate, distinct harms

• Adds offense levels for additional criminal conduct

15Tips for Determining a Single Offense Level for Multiple Counts

• Depending upon the specific counts in a particular case, a multiple count case may use

• Only the grouping rules at §3D1.2;

• Only the assignment of units at §3D1.4; or

• Both the grouping rules (§3D1.2) and the assignment of units (§3D1.4)

16Tips for Determining a Single Offense Level for Multiple Counts (cont.)

•Grouping is a process of elimination

• Start with the grouping rules at §3D1.2.

• Then, if necessary, move to the assignment of units at §3D1.4.

• In every multiple counts case, the court MUST determine ONE offense level representative of all of the counts of conviction

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You Don’t Have a Choice!

• The guideline calculations for the specific counts in a particular case will dictate which grouping rules apply

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Decision Tree: Grouping Multiple Counts of Conviction

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Examples of Chapter Two Guidelines in the Included List at §3D1.2(d)

• Drug trafficking• Fraud, theft, & embezzlement• Firearms • Alien smuggling• Trafficking/possession of

child pornography

• Money laundering• Tax violations• Counterfeiting• Bribery• Other similar

offenses

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Grouping under “Rule (d)”Example:

One application with the offense level for the group based on the aggregate and the conduct “taken as a whole”

Drugs

§2D1.1

Drugs

§2D1.1

Drugs

§2D1.1

Drugs

§2D1.1

25Application of Multiple Counts that Do Not Group under “Rule (d)”

= adjusted offense level

• Acceptance= Offense Level Total

Count 1

= adjusted offense level

Chapter Three• Victim • Role• Obstruction

• Multiple Counts Adjustment (Process of Grouping and Assignment of Units)

= Combined Adjusted Offense Level

Chapter TwoCount 2

Chapter TwoChapter Three• Victim • Role• Obstruction

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Grouping Closely Related Counts at §3D1.2

Multiple counts involve substantially the same harm under the meaning of these rules:

(a) Same Victim, Same Act

(b) Same Victim, Two or More Acts

(c) Conduct Treated by Characteristic

(d) Based on an Aggregate

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Impact of Counts Grouping under Rules (a), (b), or (c)

Count 1

OL 20

Count 2

OL 23

Offense Level 23 for the group

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Assignment of Units (§3D1.4)

• If, after application of the grouping rules at §3D1.2, there are counts of conviction or count groups for which a single offense level must still be determined, §3D1.4 must be applied.

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Assignment of Units

• Compare the offense level of the highest group to the offense levels of the other groups, and assign “units”

• Increase the offense level of the highest group according to a guideline table corresponding to the number of “units”

If more than one group:

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Assignment of Units (§3D1.4)

Highest Offense Level (or Equal) 1

1-4 Levels Less Serious 1

5-8 Levels Less Serious ½

9 or More Levels Less Serious 0

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Additional Offense Levels (§3D1.4)Number Increase in of Units Offense Level

1 None 1½ add 1 level2 add 2 levels2½ - 3 add 3 levels3½ - 5 add 4 levelsmore than 5 add 5 levels


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Using the Decision Tree: Grouping Scenarios

Sept. 8, 2015

Scenario 1: Under which rule do these counts group?A. §3D1.2(a)B. §3D1.2(b)C. §3D1.2(c)D. §3D1.2(d)E. They don’t group under

§3D1.2/assign units

Scenario 8: Under which rule do these counts group? (Hint: more than 1)A. §3D1.2(a)B. §3D1.2(b)C. §3D1.2(c)D. §3D1.2(d)E. They don’t group under


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In determining whether counts group, you must first decide whether the counts involve the same harm, regardless of what the rules state at §3D1.2.

A. TrueB. False

When two different guidelines are listed as “included” at §3D1.2(d), those guidelines must group under §3D1.2(d).

A. TrueB. False

When a guideline is listed as “excluded” from §3D1.2(d), does that mean that:

A. That guideline cannot be grouped under any other rule at §3D1.2; units must be assigned

B. That guideline can group under another rule at §3D1.2, if the proper criteria are met

Understanding grouping is the most difficult part of guideline application.

A. AgreeB. Somewhat agreeC. Neither agree or

disagreeD. Somewhat disagreeE. Disagree


53Thank You!

Please Submit an Evaluation.

SCENARIOS: DETERMINING THE OFFENSE LEVEL FOR MULTIPLE

COUNTS OF CONVICTION

USING THE DECISION TREE, PLEASE ANALYZE THE APPROPRIATE

GROUPING DECISION FOR EACH SCENARIO.

1. The defendant pleaded guilty to two counts. The first count is distribution of fentanyl

resulting in death of victim A. The second count is distribution of fentanyl resulting in death of

victim B. The guideline applicable to both counts is §2D1.1. Each offense of conviction

establishes that death resulted from the use of the fentanyl.

Do these multiple counts group under §3D1.2? If so, under which rule? Or, should units be

assigned under §3D1.4?

______________________________________________________________________________

2. The defendant is a pharmacist tech who used her position to generate and create

fraudulent scripts for opioid medication. She had access through her position to use the

computer to create fake prescriptions and then process them using either children’s names or

fake names to obtain the pills herself. The defendant pled guilty to five counts of acquiring a

controlled substance by fraud, a violation of 21 U.S.C. § 843(a)(3). The guideline applicable to

all counts is §2D2.2.



______________________________________________________________________________

3. Defendant pleaded guilty to five counts of assault. The applicable guideline for all

counts is §2A2.3. The defendant, a former prison guard, pepper sprayed five inmates without

cause or justification. The five inmates were all sprayed on the same occasion at the same

time.



______________________________________________________________________________

4. The defendant has two counts of conviction. The first count of felon in possession

occurred in January 2017. The defendant, a felon, was in possession of a handgun during a

traffic stop. The second count is a violation of 18 U.S.C. § 922(o), unlawful possession of a



machine gun. This offense occurred in April 2017. The machine gun was found by federal

agents when they arrived at the defendant’s residence to serve the defendant with an arrest

warrant for count one. The guideline applicable to both counts is §2K2.1.



______________________________________________________________________________

5. Defendant is convicted of two counts: illegal reentry (§2L1.2) and alien in possession of

a firearm (§2K2.1). The defendant was contacted by law enforcement to provide information

about his cousin, who was under investigation for a drug offense. During the interview with law

enforcement, it was revealed that the defendant had been residing in the United States illegally

for almost 10 years. The defendant also revealed that he was asked by his cousin to “hold

onto” his cousin’s firearm for a while. The defendant kept the firearm in his closet until he

turned it over to law enforcement during the interview.



______________________________________________________________________________

6. Defendant is convicted of robbery (§2B3.1) and felon in possession (§2K2.1). The

defendant robbed a bank in November 2017. During the robbery, he possessed a Glock pistol

and pointed it at the teller as he demanded the money from her drawer. The defendant was

arrested months later after finally being identified by authorities. It was during his arrest at his

home that agents discovered three handguns, two 9mm pistols, and a .44 Magnum revolver.

The Glock pistol possessed during the robbery was never recovered. The conviction for felon in

possession names only the guns found during the search of the defendant’s residence.



______________________________________________________________________________

7. Defendant is convicted of one count of illegally reentering the United States (§2L1.2),

and one count of possession of fraudulent naturalization documents (§2L2.2). The defendant



had fraudulent identification documents that he used to obtain employment when he was, in

fact, unlawfully remaining in the United States.



______________________________________________________________________________

8. The defendant pleaded guilty to three counts of felon in possession (§2K2.1), one count

of distribution of oxycodone (§2D1.1), one count of distribution of heroin (§2D1.1), and one

count of using a firearm in connection with a drug trafficking offense, a violation of 18 U.S.C. §

924(c). The three firearms that are the subject of the felon in possession counts were carried

by the defendant during various drug sales.



______________________________________________________________________________

9. Defendant is convicted of one count of sexual exploitation of a child (§2G2.1), and one

count of distribution of child pornography (§2G2.2). The counts involve the same victim, who is

13 years of age. The defendant persuaded the victim to produce explicit images of herself. The

defendant then distributed the images over the dark web.



______________________________________________________________________________

10. Defendant pleaded guilty to two counts: burglary of a post office (§2B2.1) and

possession of stolen mail (§2B1.1). On December 10, 2017, the defendant unlawfully entered

the post office and stole of a bag of undelivered mail.



______________________________________________________________________________

When a case involves multiple counts of conviction, the court must determinea single, combined offense level representative of all the counts of conviction. This process isknown as “grouping” multiple counts. The grouping rules in Chapter 3, Part D are applied to determine a single, combined, offense level.

Key Points about Grouping Multiple Counts of Conviction:

Key Terms

•

•

•

The grouping rules in Chapter 3, Part D apply to multiple counts of conviction contained in the same indictment or information, or multiple counts contained in different indictments or informations where sentences are to be imposed at the same time or in a consolidated proceeding.

The grouping rules do not apply to counts of conviction for which the statute: specifies a term of imprisonment to be imposed and requires that specific term of imprisonment run consecutively to any other count of conviction. Common examples: 18 U.S.C. § 924(c) and 18 U.S.C. §1028A. (See §3D1.1.)

The grouping rules in §3D1.2 apply to closely related counts that are to be treated as a single, composite harm. One offense level will be used to represent all counts grouped under these rules. When these rules are applied to multiple counts, it is referred to as “grouping.”

•

•

•

The rules in §3D1.4 apply to counts that represent separate, distinct harms. This provision provides incremental punishment (additional offense levels) for additional criminal conduct. These rules are often referred to as the “assignment of units.”

Depending upon the specific counts in a particular case, a multiple count case may use: only the grouping rules in §3D1.2, only the assignment of units in §3D1.4, or both.

Acceptance of Responsibility (§3E1.1) is determined after application of the guidelines to determine a single offense level for multiple counts. A reduction for Acceptance of Responsibility is taken from the single offense level that is determined after all of the grouping rules are applied.

Assignment of Units – the process outlined in §3D1.4, which provides incremental increases (the assignment of additional offense levels) for significant additional criminal conduct that represents separate and distinct harms.

Count Group – the group of closely related counts after application of the grouping rules in §3D1.2. If

Grouping – the process outlined in Chapter 3, Part D to determine a single, combined offense level for multiple counts of conviction. Also refers specifically to the rules in §3D1.2, which dictate the determination of a single offense level for closely related counts of conviction.

there are multiple counts or count groups, the grouping rules will still be applied to determine a single, combined offense level.

Grouping Multiple Counts of Conviction:2018 Annual National Seminar

US SENTENCING COMMISSION2018 NATIONAL SEMINAR

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To receive updates on future events and other Commission activities, visit us on Twitter @TheUSSCgov, or subscribe to e-mail updates through our website at www.ussc.gov. Forguidelines questions, call our Helpline at 202.502.4545, and

to request training, email us at [email protected].

The United States Sentencing Commission, an independent agency in the judicial branch of the federal government, was organized in 1985 to develop a national sentencing policy for the federal courts. The resulting sentencing guidelines provide structure for the courts’ sentencing discretion to help ensure that similar o�enders who commit

similar o�enses receive similar sentences.

(a)

(b)

(c)

(d)

Counts involve the same victim and the same act or transaction.

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.

One of the counts embodies conduct that is treated as a specific offense characteristic in, or Chapter 3 adjustment to, the guideline applicable to another count.

Counts use the same guideline and are included for grouping under this subsection. The most commonly applied guidelines to be grouped under this subsection are:

•

•

•

•

The count/group with the highest offense level receives one unit.

Each remaining count/group that is equally serious or 1 to 4 levels less serious than the count/group with the highest offense level receives one unit.

Each remaining count/group that is 5 to 8 levels less serious than the count with the highest offense level receives one-half unit.

Any remaining count/group that is 9 or more levels less serious than the count group with the highest offense level does not receive any unit.

Guidelines excluded from grouping under this subsection include:

Groups of Closely Related Counts (§3D1.2)

Determining the Combined O�ense Level (§3D1.4)

All counts involving substantially the same harm shall be grouped together into a single Group. Counts involve substantially the same harm if:

The combined offense level is determined by taking the offense level applicable to the count/count group with the highest offense level and increasing that offense level by the amount indicated in the following table:

••••

§2K2.1 (Firearms)§2L1.1 (Alien Smuggling)§2S1.1 (Money Laundering)§2T1.1 (Tax Offenses)

••••

§2B1.1 (Fraud, Theft)§2C1.1 (Bribery)§2D1.1 (Drugs)§2G2.2 (P/R/T Child Pornography)

••••

§2G1.1 (Prostitution)§2G2.1 (Production ChildPornography)§2L2.2 (Document Fraud)

•

••

All offenses in Chapter Two, Part A(except §2A3.5)§2B2.1 (Burglary)§2B3.1 (Robbery)

Total Numberof Units

Add to HighestO�ense Level

1 ½2

2 ½ - 33 ½ - 5

More than 5

. . .

. . .

. . .

. . .

. . .

+1+2+3+4+5

Grouping Multiple Counts of Conviction:2018 Annual National Seminar

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Do the counts involve separate instances of fear and risk of harm?

Do your counts use theSAME guideline?

Does one of the counts have an SOC or Ch. 3 Adjustment that

embodies the other count? (§3D1.2(c))

Is that guideline listed as included under §3D1.2(d)?

Apply the guidelines to each count of conviction.

Apply that one guideline one time based upon the aggre-gate relevant conduct for all counts of conviction using that SAME guideline. The

o�ense level for the aggre-gate conduct is the o�ense

level for the group of closely related counts.

Use the count with the highest

o�ense level to determine the

combined o�ense level for that

group of closely related counts.

Do the counts involve the same

victim? (§3D1.2(a) and (b))

Assign units. Go to Step 2.

Do the counts involve the same act or transaction

or two or more acts constituting a common criminal

objective?

Flip over for Step 2:

Step 1: Grouping Closely RelatedCounts (§3D1.2)

Answer these questions for each count* todetermine if the grouping rules at §3D1.2 apply.If, after evaluating each count,* two or morecounts* remain, move onto Step 2: Assignmentof Units (§3D1.4).

* “Count” can be a single count or a group ofclosely-related counts

Decision Tree: Grouping Multiple Counts of Conviction 2018 Annual National Seminar


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Step 2: Assignment of Units (§3D1.4)

If there are two or more counts* remaining after applying Step 1 to all counts* use this checklist todetermine a single combined o�ense level.

Checklist to Determine a Single Combined O�ense Level:Identify the count with the highest offense level. If there are two or more counts with the same highest offense level, just select one.

Compare the count with the highest offense level to the other remaining counts.

The count with the highest offense level receives one unit.

Each remaining count that is equally serious or 1 to 4 levels less serious than the count with the highest offense level receives one unit.

Each remaining count that is 5 to 8 levels less serious than the count with the highest offense level receives one-half unit.

Any remaining count that is 9 or more levels less serious than the count group with the highest offense level does not receive any units.

Add up the total amount of units.

Using the table below, based on the total number of units, add the appropriate number of offense levels to the offense level of the count with the highest offense level.

1.

2.

3.

4.

5.

6.

7.

8.

Total Numberof Units

1 ½

2

2 ½ - 3

3 ½ - 5

More than 5

Add to HighestOffense Level

+1

+2

+3

+4

+5

A reduction for Acceptance of Responsibility (§3E1.1) is determined only after a single combined o�ense levelis established for the multiple counts of conviction. A reduction for Acceptance of Responsibility is basedupon consideration of the relevant conduct for all counts.

Decision Tree: Grouping Multiple Counts of Conviction 2018 Annual National Seminar

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Download - Multiple Counts: Grouping Multiple Offense Types · 5/30/2018 · The Glock pistol possessed during the robbery was never ... of offense levels to the offense level of the count with

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