Understanding “Grouping” Rules Under the Federal Sentencing Guidelines
What Are Grouping Rules?
The guidelines’ grouping rules are set forth in Guideline Sections 3D1.1-3D1.5. These rules seek to identify substantially similar harms and to provide incremental punishment for significant additional criminal conduct. The most serious offense is used as the starting point, with the additional counts used to determine how much to increase the offense level based on their seriousness and similarity to the primary offense.
In general, conviction on multiple counts do not result in an increased sentence unless they represent additional conduct that is not otherwise accounted for under the guidelines. For example, multiple convictions on offenses such as theft, fraud, or drugs, which involve repetitive or ongoing behavior, do not result in an increased sentence based on multiple counts. Conversely, multiple convictions on offenses such as assault and robbery, which involve single episodes of criminal behavior, will result in an increased sentence if there are multiple counts of conviction.
Having a clear understanding of the basic definitions and application procedures of the guidelines’ grouping rules provides defense attorneys with the opportunity to limit sentencing exposure for their clients.
Identifying Closely Related Counts
The basic approach of the guidelines’ grouping rules is to group together counts “involving substantially the same harm.” Guideline Section 3D1.2. There are four basic ways that multiple counts can be deemed to involve substantially the same harm within the meaning of the guidelines. Guideline Section 3D1.2(a)-(d). They include:
Same victim and act or transaction
Counts that involve the same victim and the same act or transaction (i.e., a single criminal episode or crime spree), are grouped together. For example, where the defendant is convicted of separate counts for kidnapping and assaulting the victim during the course of the kidnapping, the counts are grouped together. Similarly, where the defendant is convicted of two counts of assault for shooting at a federal officer twice while trying to avoid apprehension, the counts are grouped together. However, where the defendant is convicted of two counts of assault for shooting at two different federal officers while trying to avoid apprehension, the counts are not grouped together as they do not involve the same victim.
Same victim and common scheme or plan
Counts that involve the same victim and two or more acts or transactions connected by a common criminal objective or are part of a common scheme or plan (i.e., one composite harm), are grouped together. For example, where the defendant is convicted of one count of auto theft and one count of later altering the vehicle’s identification number, the counts are grouped together. Similarly, where the defendant is convicted of one count of conspiracy to commit extortion and one substantive count of extortion, the counts are grouped together. However, where the defendant is convicted of two counts of rape for raping the same person on two different dates, the counts are not grouped together as each rape is considered its own composite harm.
Conduct that triggers a guideline adjustment to another count
Where one of the counts includes conduct that is treated as a specific offense characteristic or other guideline adjustment to another count, the counts are grouped together to prevent “double counting” of offense behavior. For example, where a defendant is convicted of a drug count and a gun count for possessing a gun during the drug transaction, the counts are grouped as the drug guideline contains a sentence enhancement for possession of a gun. However – even though the robbery guideline contains an enhancement for assault – where a defendant is convicted of one count of bank robbery and one count of assault which occurred on a different date, the counts are not grouped as they are not sufficiently related to each other.
Conduct where the guidelines are based on aggregate harm
When the offense level for the counts is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, the counts are grouped together. This is the most frequently used of the grouping rules as it covers most property crimes, drug offenses, firearms offenses, and other crimes where the guidelines are based primarily on a measure of aggregate harm.
For example, where the defendant is convicted of multiple counts of embezzlement from a bank, all counts are grouped together, and the amounts of loss are added together. Similarly, where a defendant is convicted of one count each of trafficking in heroin, methamphetamine, and cocaine, the counts are grouped together, and a single converted drug weight is calculated. However, where the defendant is convicted of multiple counts of bank robbery, the counts are not grouped together, nor are any amounts of loss added together, because the offense level is not determined largely on the basis of a measure of aggregate harm.
Determining the Combined Offense Level and Sentence
In general, the combined offense level for a group of counts is the offense level applicable to the most serious of the counts comprising the group. Guideline Section 3D1.3. If there is only one group, then there is no additional adjustment for multiple counts, and the calculation is complete.
Where there are multiple groups of counts, the combined offense level is determined by taking the group with the highest offense level, and then increasing that offense level through a multiple count adjustment. Guideline Section 3D1.4.
The multiple-count adjustment is determined through a mathematical formula, and can range from zero to five levels depending on the number of groups and their relative seriousness to the highest-ranking group. In general, where the additional groups are as serious or nearly as serious as the highest-ranking group, the multiple count adjustment will be greater. Conversely, where the additional groups are substantially less serious as the highest-ranking group, the multiple-count adjustment will be less.
The above discussion does not address all of the complexities of the guidelines’ grouping rules, but only the basic definitions and application procedures. A federal criminal defendant can most effectively limit their sentencing exposure by choosing a federal criminal defense attorney who is well-informed and has expert knowledge of the sentencing guidelines, including the guidelines’ grouping rules.