THE BIG UNIT(S)

By Wayne C. Fricke; April 1999

     One item that is easily overlooked in the Federal Sentencing Guidelines is Section 3D1.1, which sets forth the procedure for determining offense levels involving multiple counts.  This particular guideline requires the court to group the counts resulting in conviction into “distinct groups of closely related counts” by applying specific rules set forth in Section 3D1.2.

     In essence, 3D1.2 requires the court to group all counts together which involve substantially the same harm.  Counts involving the same harm are identified as follows:

same victim and same transaction;

same victim and two or more transactions connected by common criminal objective or constituting part of a common scheme;

one of the counts embodies conduct that is treated as specific offense characteristic to the guideline applicable to another count; and

when offense level is determined largely on the basis of total loss, quantity of substance, or some other measure of harm.

     Specific types of offenses, however, are excluded from the operation of  3D1.2.  Consequently, you need to be aware, depending on the types of offenses involved in the convictions, that this section may not apply, which may result in a higher guideline being applicable towards your client.
     Once you have figured out the appropriate number of groups, you determine the appropriate offense level for each group and then, pursuant to Section 3D1.4, you take the offense level applicable to the group with the highest level and increase the level from 0-5 levels, depending on the number of units.  A unit is defined as a group with equivalent offense levels.  In no event will there be more than 5 offense levels added.

     Obviously, an increase of 5 levels can have a significant impact as it relates to sentencing.  Thus, when advising a client to enter into a plea or go to trial, do not omit an analysis of Section 3D1.1.

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