In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-1174 & 09-2457
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D AVID V IZCARRA and R OGELIO A GUIRRE,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 821—Charles R. Norgle, Sr., Judge.
A RGUED O CTOBER 1, 2010—D ECIDED F EBRUARY 7, 2012
Before P OSNER, K ANNE, and SYKES, Circuit Judges.
S YKES, Circuit Judge. David Vizcarra and Rogelio
Aguirre committed a kidnapping for ransom to extract
payment of a drug debt, abducting the victim in
Indiana, taking her to Illinois, and holding her for two
days before federal agents rescued her. Along with
two other coconspirators, they were indicted on con-
spiracy and kidnapping charges. They pleaded guilty
to the kidnapping count, and each appealed. Vizcarra
2 Nos. 09-1174 & 09-2457
argues that the district court miscalculated his guide-
lines sentencing range by applying a six-level enhance-
ment under U.S.S.G. § 2A4.1(b)(1) for kidnapping de-
manding a ransom. Applying the enhancement, he con-
tends, was impermissible double counting because
the underlying offense involved a ransom demand. He
also claims the judge failed to adequately address his
arguments in mitigation and that his 168-month sen-
tence is unreasonable in light of those mitigating facts.
Aguirre’s counsel filed an Anders brief seeking permis-
sion to withdraw after finding no nonfrivolous issues
for appeal.
We affirm Vizcarra’s sentence. Applying the enhance-
ment for demanding a ransom does not impermissibly
double count. In so holding we resolve an inconsistency
in our caselaw regarding the concept of double counting.
Despite what we have said or implied—most recently
in United States v. Bell, 598 F.3d 366, 371-73 (7th Cir.
2010)—there is no general prohibition against double
counting in the guidelines. To the contrary, the default
rule is that the same conduct may determine the base
offense level and also trigger the cumulative applica-
tion of enhancements and adjustments unless a specific
guideline instructs otherwise. See U.S.S.G. § 1B1.1 cmt.
n.4. In other words, double counting is impermissible
only when the text of the applicable guideline specif-
ically says so. We reject Vizcarra’s remaining sentencing
arguments. Finally, we agree with Aguirre’s counsel
that there are no nonfrivolous issues for appeal and there-
fore grant counsel’s motion to withdraw and dismiss
Aguirre’s appeal.
Nos. 09-1174 & 09-2457 3
I. Background
Rogelio Aguirre fronted a significant quantity of mari-
juana to a woman identified in the briefs as “Victim A.”
When she failed to pay for the marijuana, Aguirre
devised a plot to kidnap and hold her for ransom to pay
off the debt. He recruited Antonio Vasquez to help
with the kidnapping, and Vasquez, in turn, recruited
Jacinto and David Vizcarra (father and son). A fifth
unnamed coconspirator arranged to meet Victim A at a
tollway plaza in Indiana. Vasquez and the Vizcarras
drove to the plaza with the unnamed coconspirator.
The coconspirator approached the victim, and David
Vizcarra and Vasquez forced her into Jacinto Vizcarra’s
van. The Vizcarras drove Victim A to Aguirre’s apartment
in Illinois, and Aguirre told Vasquez to call her family
and demand a ransom. Vasquez thereafter made several
ransom calls. The kidnappers held Victim A for two
days, threatening her and her family. Federal agents
eventually rescued her. Aguirre, Vasquez, and the
Vizcarras were indicted for conspiracy to commit kid-
napping, 18 U.S.C. § 1201(c), and kidnapping, 18 U.S.C.
§ 1201(a)(1)-(2). Aguirre and David Vizcarra pleaded
guilty to the kidnapping charge.
At sentencing Vizcarra objected to the recommenda-
tion in the presentence report (“PSR”) that a six-level
enhancement should be applied under U.S.S.G.
§ 2A4.1(b)(1) for kidnapping demanding a ransom. He
also argued that the PSR’s recommendation of criminal-
history category II overstated his criminal record. The
district court agreed that category II overrepresented
4 Nos. 09-1174 & 09-2457
Vizcarra’s criminal history, which was limited to two
drunk-driving convictions, but rejected his challenge to
the ransom enhancement. These rulings resulted in an
offense level of 35, a criminal-history category I, and
a guidelines range of 168 to 210 months.
Vizcarra argued for a below-guidelines sentence, pre-
senting several arguments in mitigation. He pointed out
that he did not plan the kidnapping and he cooperated
with police soon after he was arrested. He argued
that his participation in the crime was an aberration
based on his limited criminal history and other aspects
of his background. He also maintained that a lengthy
prison term was unnecessary as a specific deterrent;
because his criminal record was insignificant—he had
spent only one day in jail prior to the kidnapping—a
shorter prison term would have a comparatively strong
deterrent effect on him. Finally, he argued that his drug
and alcohol problems influenced his participation in
the crime.
The court imposed a sentence of 168 months, the low end
of the guidelines range. Vizcarra appealed, challenging
his sentence on procedural and substantive grounds.
In particular, he contests the district court’s application
of the six-level enhancement under § 2A4.1(b)(1) for
kidnapping demanding a ransom.
Aguirre’s PSR recommended a guidelines range of 235
to 293 months. Aguirre agreed with the guidelines cal-
culation but argued for a below-guidelines sentence
based on his age (then 56) and poor health. The judge
sentenced Aguirre to 235 months, the low end of the
Nos. 09-1174 & 09-2457 5
guidelines range, and Aguirre appealed. His appointed
counsel filed an Anders brief and moved to withdraw
after concluding that there are no nonfrivolous issues
for appeal. Aguirre did not initially respond, but we
later granted his request to file a late response.
II. Discussion
A. David Vizcarra’s Appeal
Vizcarra raises three issues on appeal, all relating to
his sentence. The main event is an argument about
double counting: He contends that applying the six-
level enhancement for kidnapping demanding a ransom
under § 2A4.1(b)(1) is impermissible double counting
because demanding a ransom was an element of his
kidnapping conviction. He also argues that the judge
ignored several of his arguments in mitigation and that
his sentence is substantively unreasonable.
1. Double Counting
In the context of guidelines sentencing, the term
“double counting” refers to using the same conduct
more than once to increase a defendant’s guidelines
sentencing range. Claims of impermissible double
counting come in two varieties. First, conduct that
forms the factual basis for an element of the offense
might also support a guidelines enhancement or adjust-
ment, meaning that the conduct is counted once as part
of the base offense and a second time through the ap-
6 Nos. 09-1174 & 09-2457
plication of an enhancement or adjustment. Second,
particular conduct might support the application of
more than one enhancement or adjustment. Our cases
are inconsistent about whether double counting is gen-
erally permissible or impermissible. The government
asks us to resolve the inconsistency, and we accept the
invitation. We hold that double counting is generally
permissible unless the text of the guidelines expressly
prohibits it. This holding overrules Bell, 598 F.3d at 371-
73, so we have circulated this opinion to the full court
under Circuit Rule 40(e). No judge in active service re-
quested to hear the case en banc.
“Double counting in the sentencing context ‘is a phe-
nomenon that is less sinister than the name implies.’ ”
United States v. Lilly, 13 F.3d 15, 19 (1st Cir. 1994)
(quoting United States v. Zapata, 1 F.3d 46, 47 (1st Cir.
1993)). Double counting raises no constitutional con-
cerns. See United States v. Wheeler, 330 F.3d 407, 413 (6th
Cir. 2003). The concept of double counting is strictly
a matter of guidelines interpretation, so normal rules
of statutory construction apply. See United States v.
Mitchell, 353 F.3d 552, 556 (7th Cir. 2003) (“When con-
struing federal sentencing guidelines, we turn to the
general rules of statutory construction.” (citing United
States v. Lewis, 93 F.3d 1075, 1080 (2d Cir. 1996))). The
starting place is the text of the guidelines. United States
v. Hill, 645 F.3d 900, 907 (7th Cir. 2011) (“[W]e ‘begin
with the text of the provision and the plain meaning of
the words in the text.’ ” (quoting United States v.
Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005))). In addition,
“ ‘commentary in the Guidelines Manual that interprets
Nos. 09-1174 & 09-2457 7
or explains a guideline is authoritative unless it violates
the Constitution or a federal statute, or is inconsistent
with, or a plainly erroneous reading of, that guideline.’ ”
United States v. Krumwiede, 599 F.3d 785, 790 n.8 (7th
Cir. 2010) (quoting Stinson v. United States, 508 U.S. 36, 38
(1993)).
Section 1B1.1 explains the general principles for
applying the guidelines, instructing sentencing courts to
apply the guidelines’ various rules in order, “except as
specifically directed.” U.S.S.G. § 1B1.1(a). To arrive at a
sentencing range, the judge undertakes several sequential
intermediate steps to calculate the applicable range,
including selecting the proper offense guideline, deter-
mining a base offense level, applying enhancements
under Chapter Two and adjustments under Chapter
Three, and determining a criminal-history category. Id.
The defendant’s advisory sentencing range is based on
the adjusted offense level and criminal-history category.
Id. All this is familiar and well understood.
A structural feature of guidelines sentencing is that
distinct aspects of a defendant’s conduct will support
respective increases in punishment through multiple
sentencing enhancements, adjustments, or other deter-
minations specified in the guidelines. Occasionally, a
single aspect of the defendant’s conduct will, by itself,
supply the factual basis to trigger more than one of
the various inputs that combine to yield the advisory
guidelines range—the base offense level, sentencing en-
hancements, and adjustments. This is where the some-
times misunderstood concept of double counting comes in.
8 Nos. 09-1174 & 09-2457
Section 1B1.1 and its application note 4 establish the
general principle that the various step increases in
the guidelines are cumulative. Subsection B of applica-
tion note 4 explains that cumulative application is the
rule even if multiple increases are based on the same
conduct, unless a specific guidelines instructs otherwise:
4. (A) Cumulative Application of Multiple Adjust-
ments within One Guideline.—The offense
level adjustments from more than one specific
offense characteristic within an offense guide-
line are applied cumulatively (added together)
unless the guideline specifies that only the
greater (or greatest) is to be used. Within each
specific offense characteristic subsection,
however, the offense level adjustments are
alternative; only the one that best describes
the conduct is to be used. For example, in
§ 2A2.2(b)(3), pertaining to degree of bodily
injury, the subdivision that best describes
the level of bodily injury is used; the adjust-
ments for different degrees of bodily injury
(subdivisions (A)-(E)) are not added together.
(B) Cumulative Application of Multiple Adjust-
ments from Multiple Guidelines.—Absent an
instruction to the contrary, enhancements under
Chapter Two, adjustments under Chapter
Three, and determinations under Chapter
Four are to be applied cumulatively. In some
cases, such enhancements, adjustments, and deter-
minations may be triggered by the same conduct.
Nos. 09-1174 & 09-2457 9
For example, shooting a police officer during
the commission of a robbery may warrant
an injury enhancement under § 2B3.1(b)(3) and
an official victim adjustment under § 3A1.2,
even though the enhancement and the adjust-
ment both are triggered by the shooting of
the officer.
Id. § 1B1.1 cmt. n.4(A), (B) (emphasis added). Discrete
exceptions to this rule are found elsewhere in the guide-
lines, each outlining a specific situation under which a
particular guidelines provision should not apply in the
presence of another. See, e.g., id. § 2B1.1 cmt. n.8(C) (prohib-
iting application of § 3C1.1 obstruction adjustment if
based on identical facts as § 2B1.1(b)(10) sophisticated-
means enhancement); id. § 3C1.1 cmt. n.7 (prohibiting
application of § 3C1.1 obstruction adjustment if based
on identical facts as underlying obstruction offense). But
in the absence of one of these explicit double-counting
bars, § 1B1.1 and its application note 4 make it clear
that cumulative application—that is, “double count-
ing”—is the default rule.
One line of our cases agrees. See, e.g., United States v.
Nance, 611 F.3d 409, 413 (7th Cir. 2010) (“Double counting
is generally permissible unless the Guidelines say other-
wise or there is a compelling basis for implying a prohibi-
tion.”); United States v. Harris, 41 F.3d 1121, 1123 (7th
Cir. 1994) (noting the consensus among the circuits
that double counting under the guidelines is generally
permissible). Another line of cases, however, holds (or
implies) that double counting is generally impermissible,
10 Nos. 09-1174 & 09-2457
even if as a textual matter the guidelines require it. These
cases include various “tests” for what constitutes imper-
missible double counting, and as we have noted, can be
grouped into two categories. First, we have said that
“[i]mpermissible double counting occurs when the
district court imposes ‘two or more upward adjust-
ments . . . when both are premised on the same conduct.’ ”
United States v. Haynes, 582 F.3d 686, 710 (7th Cir. 2009)
(quoting United States v. Blum, 534 F.3d 608, 612 (7th Cir.
2008)). We have also said that impermissible double
counting occurs ” ‘if the offense itself necessarily in-
volves the same conduct as the enhancement.’ ” United
States v. Beith, 407 F.3d 881, 889 (7th Cir. 2005) (quoting
United States v. Senn, 129 F.3d 886, 897 (7th Cir. 1997)).
Our recent decision in Bell fits into this second line
of cases applying a general rule against double counting.
As we will see, however, Bell is actually unique. Maurice
Bell was convicted of willful failure to pay child support
in violation of 18 U.S.C. § 228(a)(3). Bell, 598 F.3d
at 367-68. An element of this offense is the violation of a
court order requiring payment. See 18 U.S.C. § 228(f)(3).
The sentencing guidelines set the offense level for
failure to pay child support by cross-reference to U.S.S.G.
§ 2B1.1, the guideline for theft, property destruction,
and fraud, see U.S.S.G. § 2J1.1 cmt. n.2, which includes
an enhancement for violating a court order, see id.
§ 2B1.1(b)(9)(C). Thus, every conviction for failure to
pay child support is subject to an offense-level enhance-
ment for violating a court order. The district court in
Bell so held and applied the enhancement, but we re-
versed. We held that punishment for the offender’s vio-
Nos. 09-1174 & 09-2457 11
lation of a court order is built into the base offense
level and therefore applying the enhancement for this
same aspect of the defendant’s conduct is impermissible
double counting. Bell, 598 F.3d at 373. We rejected the
government’s argument that the base offense level and
the enhancement punish separate harms: ” ‘theft’ of the
child’s support and contempt for the judicial system.” Id.
We concluded instead that “there is no reason to be-
lieve conduct that always inflicts multiple distinct
harms may validly receive a punishment enhance-
ment on account of one of the harms.” Id.
Bell is problematic for more than one reason. First, the
opinion does not consistently apply its own concept of
impermissible double counting, which it defined as
follows: “Impermissible double counting occurs when
the same conduct justifies two upward adjustments
under the Sentencing Guidelines or the same under-
lying facts that establish an element of the base offense
are used to justify an upward enhancement.” Id. at 372.
Bell acknowledged that for some offenses the same
conduct will be captured in an element of the offense
and also trigger the application of an offense-level en-
hancement in every case. Id. We said this overlap does not
necessarily result in impermissible double counting. Id.
at 372-73. To illustrate when it does not, we used the
example of bank robbery, which is subject to an offense-
level enhancement if money is taken from a financial
institution. See U.S.S.G. § 2B3.1(b)(1). Because taking
money from a financial institution is an element of
bank robbery, see 18 U.S.C. § 2113(a), the financial-institu-
tion enhancement applies in every bank-robbery case.
12 Nos. 09-1174 & 09-2457
Under Bell’s own definition of impermissible double
counting, however, the financial-institution enhance-
ment could not validly be applied because “the same
underlying facts that establish an element of the base
offense are used to justify an upward enhancement.” Bell,
598 F.3d at 372. But our opinion in Bell did not suggest
that the financial-institution enhancement impermissibly
double counts when applied in bank-robbery cases. To
the contrary, we emphasized—rightly so—that it does
not. See id. at 372-73.
Though we did not explain it in Bell, this conclusion
flows from the text and structure of the guidelines.
Because there are more crimes than offense guidelines,
the Sentencing Commission has designed the system so
that a single offense guideline can account for multiple
loosely related but distinct offenses through the use of
enhancements. See, e.g., United States v. Michalek, 54
F.3d 325, 331 (7th Cir. 1995) (explaining the so-called
“dragnet guidelines”). To use the bank-robbery example
we invoked in Bell, the base offense level in the
applicable guideline accounts for the “robbery” part of
the crime but not the “bank” part. See U.S.S.G. § 2B3.1.
The same can be said of failure to pay child support.
By cross-reference, the applicable guideline is § 2B1.1,
which applies to many varieties of theft, property destruc-
tion, and fraud. See id. § 2J1.1 cmt. n.2. Cross-refer-
ences generally incorporate the entire offense guideline,
including the enhancements. See id. § 1B1.5(a). Theft
in violation of a court order is different from theft
without violating a court order, so applying the
§ 2B1.1(b)(9)(C) enhancement for violating a court
Nos. 09-1174 & 09-2457 13
order—even if the enhancement applies in every case of
failure to pay child support—does not double count
anything. Bell should have come out the same way as
the bank-robbery example.
Our decision in Bell went astray by ignoring the text
of the guidelines in favor of a supposed general rule
against double counting.1 To be fair, many of our cases
simply recite (or imply) that double counting is
generally impermissible, so by reiterating that principle,
Bell is not unique. But Bell is unique in finding a double-
counting violation where the text of the applicable guide-
line permitted—indeed, required—application of an en-
hancement that overlaps with an element of the offense.
By our count, 12 of our cases have reversed based
on double-counting errors. Five involved an explicit
double-counting bar in the text of the guidelines and
thus are not controversial. See United States v. Eubanks,
593 F.3d 645, 649-50 (7th Cir. 2010) (interpreting U.S.S.G.
§ 2K2.4 cmt. n.4); United States v. Podhorn, 549 F.3d 552,
559 (7th Cir. 2008) (interpreting U.S.S.G. § 2K2.1 cmt. n.9);
United States v. Katalinic, 510 F.3d 744, 746-48 (7th Cir.
1
We note that U.S.S.G. § 2J1.1, application note 2, was
amended effective November 2011 and now explicitly
provides that the enhancement in § 2B1.1(b)(9)(C) for violating
a court order does not apply to failure to pay child support;
this amendment was a response to our decision in United
States v. Bell, 598 F.3d 366 (7th Cir. 2010). See U.S.S.G. § 2J1.1
Historical Note. Accordingly, the result in Bell, though incon-
sistent with the text of the guidelines at the time, is now
required under the terms of the cross-reference in § 2J1.1.
14 Nos. 09-1174 & 09-2457
2007) (interpreting U.S.S.G. § 2K2.4 cmt. n.4); United
States v. Bustamante, 493 F.3d 879, 889-90 (7th Cir. 2007)
(same); United States v. Bell, 28 F.3d 615, 618 (7th Cir. 1994)
(interpreting U.S.S.G. § 5G1.3(b) & cmt. n.2). In one case
the district court inexplicably engrafted a cumulative
statutory sentence on the wrong guidelines range, an
obvious (and apparently inadvertent) error. See United
States v. Powe, 394 F. App’x 299, 301-02 (7th Cir. 2010).
Six cases found the type of error we have been
discussing here: a supposed double-counting violation
in the absence of a textual bar. See Bell, 598 F.3d at 373;
United States v. Brummit, 180 F. App’x 588, 592 (7th Cir.
2006); United States v. Johnson, 46 F.3d 636, 639 (7th
Cir. 1995); United States v. Bean, 18 F.3d 1367, 1370 (7th Cir.
1994); United States v. Stevenson, 6 F.3d 1262, 1270 (7th
Cir. 1993); United States v. Kopshever, 6 F.3d 1218, 1224
(7th Cir. 1993). But four of these six were decided
before 1996 (we will return to the significance of this date
in a moment) and one—Brummit—was a nonprecedential
decision in which the government conceded a double-
counting error based on a textual prohibition added
after the defendant’s sentencing. That leaves only Bell.
Bell relied on circuit precedent to support the proposi-
tion that the guidelines generally prohibit double
counting, but as we have noted, our prior cases never
justified that rule. Bell relies primarily on Haynes, 582
F.3d at 710, and United States v. Lallemand, 989 F.2d 936, 939
(7th Cir. 1993). See Bell, 598 F.3d at 372. Haynes relies on
Blum, 534 F.3d at 612, which relies on United States v.
Schmeilski, 408 F.3d 917, 919 (7th Cir. 2005), which relies
Nos. 09-1174 & 09-2457 15
on United States v. Haines, 32 F.3d 290, 293 (7th Cir.
1994), which relies on Kopshever, 6 F.3d at 1224, which
relies, again, on Lallemand, 989 F.2d at 939. These cases,
collectively, contain no independent reasoning for why
double counting is generally impermissible under the
sentencing guidelines; they simply intone what was said
in the last case.2 Even Lallemand—which was not our
first double-counting case but is often cited and appears
2
This problem pervades our recent double-counting caselaw,
with two exceptions. United States v. Senn, 129 F.3d 886, 897 (7th
Cir. 1997), employed reasoning similar to United States v.
Stevenson, 6 F.3d 1262, 1270 (7th Cir. 1993), discussed more in
the text. Senn read the explicit double-counting bars in the
guidelines to imply the existence of a general rule against
double counting in comparable factual situations. That con-
clusion cannot be squared with U.S.S.G. § 1B1.1 and its applica-
tion note 4. In any case, Senn held that the district court did not
double count, making its discussion of what is impermissible
double counting arguably dicta. United States v. White, 406
F.3d 827, 833 (7th Cir. 2005), appears to hold that double
counting is impermissible based on the following statement
in U.S.S.G. § 1B1.1 application note 5: “Where two or more
guideline provisions appear equally applicable, but the guide-
lines authorize the application of only one such provision,
use the provision that results in the greater offense level.”
This instruction plainly applies only when the guidelines
themselves “authorize the application of only one such provi-
sion.” It cannot be read to support a general rule that double
counting is not permitted. Furthermore, White did not even
involve a double-counting challenge, so its double-counting
discussion is dicta.
16 Nos. 09-1174 & 09-2457
to be the primary source of the anti-double-counting
principle—simply states without analysis that the guide-
lines do not permit double counting. As support for
this proposition, Lallemand cites the Eighth Circuit’s
decision in United States v. Lemare, 980 F.2d 506, 516 (8th
Cir. 1992). Lemare, in turn, relies on United States v.
Werlinger, 894 F.2d 1015, 1017-18 (8th Cir. 1990).
There are several reasons to be skeptical of this line
of cases. First, although Lallemand invokes the Eighth
Circuit’s decision in Lemare—and by implication its prede-
cessor Werlinger—as support for the principle that “[t]he
guidelines do not authorize double counting,” Lallemand,
989 F.2d at 939, the Eighth Circuit has distanced itself
from that position. See United States v. Saffeels, 39
F.3d 833, 837 (8th Cir. 1994) (rejecting the argu-
ment that Werlinger created a “presumption that double-
counting was not intended by the [Sentencing] Commis-
sion”). More importantly, Werlinger—which in fair-
ness to Lallemand (and Lemare) does appear to apply a pre-
sumption against double counting—relied heavily on
the Sentencing Commission’s silence on the subject. That
is, the Eighth Circuit held that in the absence of a
statement from the Sentencing Commission expressly
authorizing double counting, it assumed the Commission
did not intend that multiple increases be applied for the
same conduct, relying on Supreme Court cases involving
statutory sentencing enhancements as well as the rule
of lenity. Werlinger, 894 F.2d at 1017-18 (citing Busic v.
United States, 446 U.S. 398, 403-04 (1980); Simpson v.
United States, 435 U.S. 6, 12-13 (1978)). We adopted a
Nos. 09-1174 & 09-2457 17
similar rationale in Stevenson, 6 F.3d at 1270, noting the
lack of explicit authorization of double counting and
inferring from the existence of specific double-counting
bars a more general prohibition against double counting.
Perhaps the reasoning of these cases made sense at the
time. However, the Sentencing Commission amended
application note 4 to § 1B1.1 throughout the mid-1990s,
casting significant doubt on these early double-counting
cases. Application note 4 dates to 1988, at which time
its relevant language stated: “The offense level adjust-
ments from more than one specific offense characteristic
within an offense guideline are cumulative (added to-
gether) unless the guideline specifies that only the greater
(or greatest) is to be used.” The note was amended in
1993, adding this: “Absent an instruction to the contrary,
the adjustments from different guideline sections are
applied cumulatively (added together).” The note took
its current form in 1996, when the Sentencing Commis-
sion clarified that double counting is generally
permissible: “Absent an instruction to the contrary, enhance-
ments . . . , adjustments . . . , and determinations . . . are to
be applied cumulatively. In some cases, such enhance-
ments, adjustments, and determinations may be trig-
gered by the same conduct.” (Emphasis added.)
This history of application note 4—progressively clari-
fying that double counting is the default rule—under-
mines our continued reliance on pre-1996 double-
counting cases. To the extent that Lallemand’s statement of
a general rule against double counting was reasonable at
the time, it is not now and has not been for quite some
18 Nos. 09-1174 & 09-2457
time. Rote citation to Lallemand—or rote citation to other
cases that rely on Lallemand—has perpetuated a judicial
gloss on the guidelines that cannot be reconciled with
their text. Simply put, there is no background rule
against double counting in the guidelines. To the con-
trary, under the general application rules announced
and explained in § 1B1.1, the same conduct may deter-
mine the base offense level and also trigger cumula-
tive sentencing enhancements and adjustments unless the
text of the applicable guideline explicitly states otherwise.3
With the notable exception of Bell, this holding is con-
sistent with the outcomes of our post-1996 cases as well
as double-counting cases from other circuits. To be sure,
other circuits have developed slightly different “tests”
for finding “impermissible” double counting. We have
grouped the circuits together according to their general
approaches to double counting:
! The Third, Fourth, and Fifth Circuits allow double
counting in the absence of an explicit textual bar.4
3
It might be argued in individual cases that double counting is
unfair. But if the guidelines range is arguably too harsh, the
sentencing judge has ample discretion to impose a sentence
outside the range. See United States v. Booker, 543 U.S. 220,
233 (2005).
4
See, e.g., United States v. Fisher, 502 F.3d 293, 309 (3d Cir. 2007)
(“ ‘[O]nly when the Guidelines explicitly prohibit double
counting will it be impermissible to raise a defendant’s offense
level under one provision when another offense Guideline
(continued...)
Nos. 09-1174 & 09-2457 19
! The Second, Sixth, and Eighth Circuits allow
double counting if Congress or the Sentencing
Commission intended it,5 but presume such intent
4
(...continued)
already takes into account the same conduct.’ ” (quoting United
States v. Wong, 3 F.3d 667, 670 (3d Cir. 1993))); United States
v. Reevey, 364 F.3d 151, 158 (4th Cir. 2004) (“Double counting
is generally authorized unless the Guidelines expressly
prohibit it.” (citing United States v. Crawford, 18 F.3d 1173,
1179 (4th Cir. 1994))); United States v. Calbat, 266 F.3d 358, 364
(5th Cir. 2001) (“[D]ouble-counting is prohibited only if it is
specifically forbidden by the particular guideline at issue. . . .
The prohibition must be in express language.” (citing United
States v. Box, 50 F.3d 345, 359 (5th Cir. 1995))).
5
See, e.g., In re Terrorist Bombings of U.S. Embassies in E. Africa,
552 F.3d 93, 152 (2d Cir. 2008) (“ ‘[A] district court calculating
a Guidelines sentence may apply multiple Guidelines provi-
sions based on the same underlying conduct where that is the
result clearly intended by Congress and the Sentencing Com-
mission. While such calculations may involve “double counting”
in a literal sense, they do not involve impermissible double
counting.’ ” (quoting United States v. Maloney, 406 F.3d 149, 152
(2d Cir. 2005))); United States v. Battaglia, 624 F.3d 348, 351 (6th
Cir. 2010) (“Double counting is allowed ‘where it appears that
Congress or the Sentencing Commission intended to attach
multiple penalties to the same conduct.’ ” (quoting United
States v. Farrow, 198 F.3d 179, 194 (6th Cir. 2000))); United
States v. Yarrington, 634 F.3d 440, 451 (8th Cir. 2011) (“ ‘Even
if the court finds double-counting, it is permissible where
(1) the Sentencing Commission intended the result and (2) each
statutory section concerns conceptually separate notions
(continued...)
20 Nos. 09-1174 & 09-2457
in the absence of a textual bar,6 effectively
aligning themselves with the Third, Fourth, and
Fifth Circuits.
! The First Circuit allows double counting absent
an explicit textual bar or a compelling basis to
recognize an implicit one.7 Because there are
some explicit double-counting prohibitions in
the guidelines, however, the court is openly cau-
tious about “implying further such prohibitions
5
(...continued)
related to sentencing.’ ” (quoting United States v. Myers, 598
F.3d 474, 476 (8th Cir. 2010))).
6
See, e.g., United States v. Reyes, 557 F.3d 84, 87 (2d Cir. 2009)
(“ ‘Defendant has offered nothing in the . . . Guidelines or
relevant statutes reflecting an intent to preclude the double
counting the District Court employed, and has therefore not
shown any impermissible double counting.’ ” (quoting United
States v. Morris, 350 F.3d 32, 37 (2d Cir. 2003))); United States
v. Lewis, 900 F.2d 877, 881 (6th Cir. 1990) (“The Guidelines
should be interpreted as if they were a statute or a court
rule, and we will ‘follow the clear, unambiguous language
if there is no manifestation of a contrary intent.’ ” (quoting
United States v. Goldbaum, 879 F.2d 811, 813 (10th Cir. 1989)));
Myers, 598 F.3d at 477 (deriving legislative intent to allow
double counting based on U.S.S.G. § 1B1.1, application note 4,
and the lack of an explicit double-counting bar).
7
See, e.g., United States v. McCarty, 475 F.3d 39, 46 (1st Cir. 2007)
(stating that double counting is allowed when ” ‘neither an
explicit prohibition against double counting nor a compel-
ling basis for implying such a prohibition exists’ ” (quoting
United States v. Lilly, 13 F.3d 15, 20 (1st Cir. 1994))).
Nos. 09-1174 & 09-2457 21
where none are written.’ ” United States v. Stella,
591 F.3d 23, 30 n.9 (1st Cir. 2009) (quoting Lilly,
13 F.3d at 19).
! The Ninth, Tenth, and Eleventh Circuits allow
double counting unless the competing guidelines
provisions address identical harms caused by the
defendant’s conduct.8 These circuits appear to
presume, however, that separate guidelines pro-
visions punish separate harms unless otherwise
indicated in the text.9
8
See, e.g., United States v. Gallegos, 613 F.3d 1211, 1216 (9th Cir.
2010) (“ ‘Impermissible double counting occurs when one
part of the Guidelines is applied to increase a defendant’s
punishment on account of a kind of harm that has already
been fully accounted for by application of another part of the
Guidelines.’ ” (quoting United States v. Stoterau, 524 F.3d 988,
1001 (9th Cir. 2008))); United States v. Coldren, 359 F.3d 1253, 1256
(10th Cir. 2004) (“[W]e have endorsed the general rule that
double counting is ordinarily impermissible when the same
conduct is used to support separate increases under separate
enhancement provisions which: 1) necessarily overlap, 2) are
indistinct, and 3) serve identical purposes.”); United States v.
De La Cruz Suarez, 601 F.3d 1202, 1220 (11th Cir. 2010) (“ ‘Imper-
missible double counting occurs only when one part of the
Guidelines is applied to increase a defendant’s punishment
on account of a kind of harm that has already been
fully accounted for by application of another part of the Guide-
lines.’ ” (quoting United States v. Matos-Rodriguez, 188 F.3d
1300, 1309 (11th Cir. 1999))).
9
See, e.g., United States v. Rosas, 615 F.3d 1058, 1065 (9th Cir.
2010) (“We have held that the Sentencing Commission under-
(continued...)
22 Nos. 09-1174 & 09-2457
! The D.C. Circuit does not have much meaningful
commentary on double counting but appears to
presume that double counting is permissible
absent a textual bar.1 0
As this survey shows, our colleagues in other circuits
generally adhere to the principle that double counting
is permissible unless the text of the applicable guideline
instructs otherwise. Some circuits do so more or less
strictly, but as a practical matter, in nearly every case
the result is the same: As long as the district court
(...continued)
stands double counting and ‘expressly forbids it where it is
not intended.’ ” (quoting United States v. Reese, 2 F.3d 870, 894
(9th Cir. 1993))); United States v. Groves, 369 F.3d 1178,
1186 (10th Cir. 2004) (“We are mindful of the general rule
that ‘the Sentencing Commission plainly understands the
concept of double counting, and expressly forbids it where it
is not intended.’ ” (quoting United States v. Duran, 127 F.3d 911,
918 (10th Cir. 1997))); United States v. Dudley, 463 F.3d 1221,
1227 (11th Cir. 2006) (“We presume that the Sentencing Com-
mission intended separate guidelines sections to apply cumula-
tively, ‘unless specifically directed otherwise.’ ” (quoting
Matos-Rodriguez, 188 F.3d at 1310)).
10
See United States v. Valdez-Torres, 108 F.3d 385, 389 (D.C. Cir.
1997) (“The Commission ‘plainly understands the concept of
double counting, and expressly forbids it where it is not in-
tended.’ ” (quoting United States v. Williams, 954 F.2d 204, 208
(4th Cir. 1992))); id. (“In the absence of a caveat that the en-
hancement does not apply in these circumstances, we would
ignore the plain language of the Guidelines were we not to
apply the enhancement here.”).
Nos. 09-1174 & 09-2457 23
applies the guidelines as written, there is no double-
counting error.
Returning to Vizcarra’s case, applying the ransom
enhancement was not impermissible double counting.
The guidelines require the application of a six-level
enhancement when the kidnapper demanded a ransom,
see U.S.S.G. § 2A4.1(b)(1), and nothing in the text of this
guideline or its application notes suggests that the en-
hancement does not apply to a defendant in Vizcarra’s
situation. Accordingly, the district court properly
applied the ransom enhancement.1 1
11
Vizcarra’s double-counting argument depends on the
premise that making a ransom demand is an element of kidnap-
ping, his crime of conviction. As the government notes, how-
ever, demanding a ransom is not a necessary element of kid-
napping. See 18 U.S.C. § 1201(a) (making it a crime to “unlaw-
fully . . . kidnap[] . . . and hold[] for ransom or reward
or otherwise any person” (emphasis added)); Gooch v. United
States, 297 U.S. 124, 125-29 (1936) (holding that the kidnap-
ping statute does not require a pecuniary motive). Kidnapping
and holding a victim for ransom is one form of the federal
kidnapping offense. The government relies on the “or other-
wise” clause in the statute to argue that although the facts of
this case include a ransom demand, the ransom demand
was not required for Vizcarra’s conviction. Because we have
rejected Vizcarra’s double-counting argument based on the
text of the guidelines, we need not address this alternative
argument.
24 Nos. 09-1174 & 09-2457
2. Section 3553(a) Challenges
Vizcarra next contends that the district court did not
adequately address the mitigating facts he raised at
sentencing and also that his sentence is unreasonable in
light of those facts. The first of these arguments is proce-
dural and the second is substantive. See United States v.
Carter, 538 F.3d 784, 789 (7th Cir. 2008) (“We review a
sentence for procedural error and substantive reason-
ableness.”).
The court is required to consider aggravating and
mitigating factors under 18 U.S.C. § 3553(a) before im-
posing a sentence, and the judge’s failure to address a
nonroutine argument in mitigation may, if the argument
is substantial enough, amount to a procedural error. See
United States v. Scott, 555 F.3d 605, 608 (7th Cir. 2009).
We have also said, however, that “[t]he court need not
address every § 3553(a) factor in a checklist fashion,
explicitly articulating its conclusions regarding each
one.” United States v. Shannon, 518 F.3d 494, 496 (7th Cir.
2008) (citing United States v. Brock, 433 F.3d 931, 934-36 (7th
Cir. 2006), and United States v. Dean, 414 F.3d 725, 729 (7th
Cir. 2005)). Instead, “sentencing judges must only demon-
strate meaningful consideration of § 3553(a) factors,”
United States v. Paige, 611 F.3d 397, 398 (7th Cir. 2010)
(citing United States v. Laufle, 433 F.3d 981, 987 (7th Cir.
2006)), and “we regularly affirm sentences where the
district judge does not explicitly mention each mitiga-
tion argument raised by the defendant,” id. (citing as
examples Brock, 433 F.3d at 936, and United States v.
Newsom, 428 F.3d 685, 687-88 (7th Cir. 2005)).
Nos. 09-1174 & 09-2457 25
We review the reasonableness of the sentence for abuse
of discretion. Gall v. United States, 552 U.S. 38, 51 (2007);
Carter, 538 F.3d at 789. A sentence within a properly
calculated guidelines range is presumed to be rea-
sonable; it is the defendant’s burden to overcome the
appellate presumption. See Rita v. United States, 551 U.S.
338, 347 (2007); United States v. Jackson, 547 F.3d 786,
792 (7th Cir. 2008).
Vizcarra focuses on three facts about his background
and participation in the crime that he claims the
district court either ignored or overlooked: (1) he did not
organize the kidnapping; (2) his participation in the
kidnapping was aberrational given his insignificant
criminal record; and (3) a lengthy prison term is unneces-
sary as a specific deterrent because he spent only a day
in jail prior to the kidnapping. In the alternative, he
argues that these mitigating factors make his 168-month
sentence substantively unreasonable.
The district court’s explanation of Vizcarra’s sentence
was brief but adequate, enough to demonstrate that the
court engaged in “meaningful consideration of § 3553(a)
factors.” Paige, 611 F.3d at 398. The judge explained
several times during the sentencing hearing that the
guidelines are discretionary and that the § 3553(a) sen-
tencing factors were guiding his discretion. He took note
of the parties’ sentencing memoranda, defense counsel’s
arguments in mitigation, and Vizcarra’s allocution. The
judge reviewed the § 3553(a) factors, with particular
emphasis on the seriousness of the offense, which
carries a statutory maximum of life imprisonment, as
26 Nos. 09-1174 & 09-2457
well as the need for specific and general deterrence. The
judge specifically addressed Vizcarra’s need to continue
his education and vocational training, and also men-
tioned his treatment needs. Finally, the judge referred
generally to Vizcarra’s “history and characteristics,”
saying he had taken those factors into consideration.
In imposing the 168-month sentence, the judge recom-
mended a residential drug-treatment program, a sen-
tencing feature Vizcarra specifically requested. Although
the court did not address the particular facts Vizcarra
emphasizes here, omitting them was not reversible
error; defendants routinely downplay their role in the
offense and the significance of their criminal history.
Viewing the proceedings as a whole, we conclude the
district court gave meaningful consideration to the
§ 3553(a) factors.
Vizcarra argues that even without the procedural defect,
his 168-month sentence is substantively unreasonable
based on the same three mitigating factors noted above.
We disagree. It’s true that Vizcarra did not plan the
kidnapping, but his role can hardly be characterized as
minor. He forcibly abducted the victim, drove her
across state lines, and stood watch during her two days
of captivity. Nothing about his participation suggests
that he specially qualifies for leniency. The second two
factors are related and rely largely on inferences that
might be drawn from Vizcarra’s limited criminal his-
tory. But the judge adjusted the guidelines range
to account for Vizcarra’s insignificant criminal rec-
ord, dropping him from criminal-history category II to
criminal-history category I. The court thus gave some
Nos. 09-1174 & 09-2457 27
weight to Vizcarra’s argument that his involvement in
the kidnapping was aberrational and that a shorter
prison term would suffice as a deterrent. In the end, the
judge was primarily concerned about the severely ag-
gravated nature of the crime—and justifiably so. The 168-
month sentence—at the low end of the advisory range—is
presumed reasonable, and Vizcarra has not overcome
the presumption.
B. Rogelio Aguirre’s Appeal
Aguirre’s appointed counsel filed an Anders brief and
moved to withdraw after concluding that his appeal
presents no nonfrivolous issues. See Anders v. California,
386 U.S. 738 (1967). Aguirre did not initially respond,
but we allowed him to file a late response.
Counsel first notes that Aguirre did not seek to withdraw
his guilty plea in the district court. In his belated
response, Aguirre confirms that he does not want to
withdraw his plea; counsel therefore properly limited
his inquiry to possible sentencing challenges. See United
States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002) (counsel
should not explore possible Rule 11 challenges in an
Anders brief in the absence of a request by the defendant
to withdraw his guilty plea). Counsel notes that in his
plea agreement, Aguirre accepted the PSR’s guidelines
calculations and reiterated at sentencing that he had no
challenge to those calculations; any challenge to the
court’s calculation of the advisory range would therefore
be frivolous.
28 Nos. 09-1174 & 09-2457
Finally, counsel notes that although a below-guidelines
sentence would have been reasonable in this case,
Aguirre’s 235-month sentence—at the low end of the
advisory range—is presumptively reasonable and there
are no nonfrivolous arguments that might rebut that
presumption. Aguirre now claims that he did not make
any demands of the victim’s family and was not a leader
or organizer of this kidnapping, but that conflicts with
the facts he admitted when he entered his guilty plea.
We agree with Aguirre’s counsel that there are no
nonfrivolous arguments to pursue on appeal.
For the foregoing reasons, we A FFIRM the judg-
ment in Vizcarra’s case (No. 09-1174). In Aguirre’s case
(No. 09-2457), we G RANT counsel’s motion to withdraw
and D ISMISS the appeal.
2-7-12