UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50656
consolidated with
No. 01-50666
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MITCHELL STRAIL TOLBERT,
Defendant - Appellant.
Appeals from the United States District Court
For the Western District of Texas
September 12, 2002
Before KING, Chief Judge, and PARKER and CLEMENT, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
We must determine whether offenses that are similar in
nature but arise from discrete circumstances and were committed
two years apart can be grouped when sentencing occurs in a
consolidated proceeding. The district court answered in the
negative. We reverse and remand.
BACKGROUND
From December 1997 until August 1998, Defendant-Appellant
Mitchell S. Tolbert and his employer, Full Service Staffing
(“FSS”), generated fictitious accounts receivable which were used
as collateral to secure loans from a private lender. FSS was
located in Texas, and the lender, in North Carolina. FSS never
repaid the loans, and the resulting loss to the lender was
$1,274,888. Then, during a five-day period in December 1999 to
January 2000, Tolbert engaged in a check kiting scheme, whereby
he deposited worthless checks drawn on his brokerage account into
his business account at Bank One. The bank credited his account
while the checks were being cleared. Tolbert then withdrew the
proceeds. The resulting loss to the bank was $32,524.
On January 4, 2001, Tolbert was indicted on 33 counts
related to the factoring scheme. On April 16, 2001, he pled
guilty to 12 of them--wire fraud, 18 U.S.C. § 1343 (five counts);
conspiracy to commit wire fraud, 8 U.S.C. § 371; and interstate
transportation of fraudulently taken property, 18 U.S.C. § 2314
(six counts). On June 6, 2001, Tolbert was indicted for a single
count of bank fraud, 18 U.S.C. § 1344. He pled guilty to it a
few days later. With the government’s concurrence, Tolbert moved
for joint sentencing on all counts. The district court granted
the motion.
At sentencing, Tolbert moved to have his convictions grouped
under the sentencing guidelines. The district court refused.
Noting that grouping would effectively result in Tolbert’s
receiving no additional punishment for the bank fraud offense,
the district court said: “[N]o way in time nor logic could the
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guidelines mean for a person who commits wire fraud in 1997 and
1998 [and] simply is not prosecuted or sentenced for it . . .
receive[] no sentence for committing bank fraud in 2001.” The
court then determined the offense levels separately, calculating
19 levels for the wire fraud counts and 10 levels for the bank
fraud count. Tolbert was sentenced to terms of 36 and 12 months’
imprisonment, sentences to run consecutively.
Tolbert made a timely appeal.
DISCUSSION
We review the district court’s decision in accordance with
the version of guidelines in effect at the time of sentencing--
i.e., the 2000 version. See U.S. SENTENCING GUIDELINES MANUAL §
1B1.11 (2000)(“U.S.S.G.”). The decision whether to group
offenses is a question of law we review de novo. See United
States v. Patterson, 962 F.2d 409, 416 (5th Cir. 1992).
Chapter Three, Part D, is applied after the sentencing court
determines the applicable guideline for each offense and makes
necessary adjustments. See U.S.S.G. § 1B1.1. In cases where the
defendant has been convicted on more than one count, it directs
the sentencing court to combine convictions into Groups of
Closely Related Counts. Id. § 3D1.1(a)(1). Multiple counts
should be grouped if they involve “substantially the same harm.”
Id. § 3D1.2. Counts involve substantially the same harm when the
victims are the same and the counts were part of the same
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transaction or scheme, id. § 3D1.2(a)&(b), or when one count is a
specific offense characteristic of another, id. § 3D1.2(c).
Additionally, multiple counts involve the same harm “[w]hen the
offense level 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 . . . .” Id. § 3D1.2(d).
Once individual convictions are grouped, the sentencing court
determines the applicable offense level for each group. Id. §
3D1.3. For offenses grouped under § 3D1.2(d), the offense level
“is the offense level corresponding to the aggregated quantity,”
as calculated elsewhere in the guidelines. Id. § 3D1.3(b). If
there is only one group, its offense level is used to determine
the defendant’s sentence. Id. § 3D1.4 cmt. application n.3.
The purpose of grouping is to guard against disproportionate
punishment when a defendant is charged with multiple counts
arising from a single transaction or scheme. “A defendant who
assaults others during a fight, for example, may warrant more
punishment if he injures ten people than if he injures one, but
his conduct does not necessarily warrant ten times the
punishment.” U.S.S.G. § 1A4(e). By grouping, “[t]he guidelines
. . . minimize the possibility that an arbitrary casting of a
single transaction into several counts will produce a longer
sentence.” Id. At the same time, Chapter Three, Part D, does
not limit its application to counts arising from the same set of
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predicate facts. Under § 3D1.2(d), counts can be grouped if each
offense shares a particular attribute under the guidelines--
namely, that the offense level is determined largely on the basis
of some unit of measure, like the value of the property stolen or
the weight of the drugs smuggled. See id. § 3D1.2 cmt.
application n.6. There is no requirement that the offenses
relate to each other in time or space, thus apparently making the
pedagogical concern noted above inapplicable.
The guidelines do not articulate a rationale for grouping
under § 3D1.2(d). Although it is close, we nevertheless conclude
that § 3D1.2(d) allows for grouping of factually unrelated
counts. Lest it be rendered superfluous, subsection (d) must be
distinguishable from § 3D1.2's other subsections.1 Subsections
(a) and (b) require grouping where the counts had the same victim
and were part of the same act or transaction or were part of a
common scheme or plan. The first clause of subsection (d), the
measurable harm clause, also must be distinguished from the
clause that follows it. The second clause requires grouping “if
the offense behavior is ongoing or continuous in nature and the
offense guideline is written to cover such behavior.” Subsection
(d)’s two clauses are joined by “or,” not “and,” meaning that
1
Subsection (c) is not relevant for purposes of our analysis,
but we note that counts grouped under it must be related in time.
See id. § 3D1.2 cmt. application n.5.
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they are exclusive of each other.2 Thus, to keep subsection (d)
from being totally subsumed by (a) and (b) and the second part of
(d) it must address offenses in which 1) the victims are
different and 2) the involved behavior is unconnected. In other
words, subsection (d) covers, among other things, discrete,
unrelated offenses involving measurable harm.3
We find support for our construction in Chapter Five. That
chapter is applied following the application of Chapter Three,
Part D. See U.S.S.G. § 1B1.1. Guideline 5G1.2 is entitled
“Sentencing on Multiple Counts of Conviction.” It in effect says
that the total punishment is to be determined in accordance with
the grouping principles from Chapter Three, Part D. Its
commentary states that § 5G1.2 “applies to multiple counts of
conviction (1) contained in the same indictment or information,
or (2) contained in different indictments or information for
which sentences are to be imposed at the same time or in a
consolidated proceeding.” Thus, by extension, grouping is
required for offenses charged in different indictments but for
2
Offenses that would fall under the second clause but not the
first include, for example, trafficking and dealing in child
pornography, id. §§ 2G2.2 & 2G2.4. See id. App. C. amend. 615.
3
This construction is borne out by an example in the
application notes: “(3) The defendant is convicted of five counts
of mail fraud and ten counts of wire fraud. Although the counts
arise from various schemes, each involves a monetary objective.
All fifteen counts should be grouped together.” Id. § 3D1.2 cmt.
application n.6.
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which the defendant is being sentenced in a single proceeding.
In the main, offenses arising from the same set of predicate
facts are charged in a single indictment. By requiring grouping
for counts contained in different indictments, the guidelines
facilitate the grouping of offenses that will not necessarily
arise from a discrete set of circumstances.
Based on the foregoing construction of §3D1.2, we conclude
that the district court erred in not grouping the counts from the
factoring scheme with the bank fraud count. All of these
offenses are sentenced in accordance with § 2F1.1.4 See U.S.S.G.
§ 2F1.1 cmt. statutory notes. Subsection (b)(1) of the same
guideline determines the offense level on the basis of loss in
dollars. Moreover, subsection (d), discussed above, expressly
states that offenses applying guideline 2F1.1 should be grouped.
See id. § 3D1.2 (“Offenses covered by the following guidelines
are to be grouped under this subsection: . . . . §§ 2F1.1,
2F1.2.”). The base offense level under § 2F1.1 is 6. When
grouping measurable harm offenses, guideline 3D1.3(b) states that
“the offense level applicable to a Group is the offense level
corresponding to the aggregated quantity, determined in
accordance with Chapter Two . . . .” The total loss is
4
Guideline 2F1.1 has since been deleted. See id. App. C
amend. 617. Because the offenses in this case are sentenced
under the same guideline, we need not interpret the phrase “same
general type,” which is mentioned in § 3D1.2, application note 6.
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$1,303,393 ($1,274,888 + $32,524), which equates to an 11 level
adjustment. See § 2F1.1(b)(1)(L)(loss more than $800,000 but
less than $1,500,000). Finally, 2 levels are added because the
factoring scheme involved “more than minimal planning.” See id.
§ 2F1.1(b)(2). Thus, the total offense level for the group is
19. Tolbert’s criminal history category is II, resulting in a
sentencing range of 33 to 41 months’ imprisonment. This is the
range Tolbert would have received had he only been sentenced on
the counts from the factoring scheme, since the addition of the
loss from the bank fraud is too small to move him into the next
category under § 2F1.1(b)(1). Grouping therefore saves Tolbert a
year’s imprisonment.
We recognize that this result gives Tolbert a windfall
through the mere fortuity of having been sentenced in a single
proceeding. But the guidelines expect that such anomalies will
occasionally occur. See U.S.S.G. § 1A4(e). Indeed, for such
instances it reminds the sentencing court of its authority to
order an upward departure.5 Id. Further, we believe that
situations like Tolbert’s are the exception. In most instances,
unrelated offenses brought in separate proceedings will not be
sentenced together. We also note that the district court retains
its discretion to decide whether or not to consolidate offenses
5
We express no opinion whether departure is warranted in this
case, leaving that determination to the sound judgment of the
district judge.
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for joint sentencing. Of course if our analysis is incorrect,
the sentencing commission can always clarify Chapter Three, Part
D, in next year’s addition of the guidelines.
CONCLUSION
The judgment of the district is REVERSED and the case is
REMANDED for resentencing.6
6
Having determined that a single group is appropriate, we
need not reach Tolbert’s argument under § 3D1.4.
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