U.S.S.G. §1B1.3

(a) CHAPTERS TWO (OFFENSE CONDUCT) AND THREE (ADJUSTMENTS).—Unless

otherwise specified, (i) the base offense level where the guideline specifies

more than one base offense level, (ii) specific offense characteristics and

(iii) cross references in Chapter Two, and (iv) adjustments in Chapter

Three, shall be determined on the basis of the following:

(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant;

and

(B) in the case of a jointly undertaken criminal activity (a criminal

plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts and omissions of others that were—

(i) within the scope of the jointly undertaken criminal activity,

(ii) in furtherance of that criminal activity, and

(iii) reasonably foreseeable in connection with that criminal activity;

that occurred during the commission of the offense of conviction, in

preparation for that offense, or in the course of attempting to avoid

detection or responsibility for that offense;

(2) solely with respect to offenses of a character for which §3D1.2(d)

would require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the

same course of conduct or common scheme or plan as the offense of

conviction;

(3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of

such acts and omissions; and

(4) any other information specified in the applicable guideline.

(b) CHAPTERS FOUR (CRIMINAL HISTORY AND CRIMINAL LIVELIHOOD) AND FIVE

(DETERMINING THE SENTENCING RANGE AND OPTIONS UNDER THE GUIDELINES).—Factors in Chapters Four and Five that establish the guideline

range shall be determined on the basis of the conduct and information

specified in the respective guidelines.

(c) ACQUITTED CONDUCT.—Relevant conduct does not include conduct for

which the defendant was criminally charged and acquitted in federal court,

unless such conduct also establishes, in whole or in part, the instant offense of conviction.

Commentary

Application Notes:

1. Sentencing Accountability and Criminal Liability.—The principles and limits of sentencing accountability under this guideline are not always the same as the principles and limits of

criminal liability. Under subsections (a)(1) and (a)(2), the focus is on the specific acts and omissions for which the defendant is to be held accountable in determining the applicable guideline

range, rather than on whether the defendant is criminally liable for an offense as a principal,

accomplice, or conspirator.

2. Accountability Under More Than One Provision.—In certain cases, a defendant may be

accountable for particular conduct under more than one subsection of this guideline. If a defendant’s accountability for particular conduct is established under one provision of this guideline, it

is not necessary to review alternative provisions under which such accountability might be established.

3. Jointly Undertaken Criminal Activity (Subsection (a)(1)(B)).—

(A) In General.—A “jointly undertaken criminal activity” is a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not

charged as a conspiracy.

In the case of a jointly undertaken criminal activity, subsection (a)(1)(B) provides that a

defendant is accountable for the conduct (acts and omissions) of others that was:

(i) within the scope of the jointly undertaken criminal activity;

(ii) in furtherance of that criminal activity; and

(iii) reasonably foreseeable in connection with that criminal activity.

The conduct of others that meets all three criteria set forth in subdivisions (i) through (iii)

(i.e., “within the scope,” “in furtherance,” and “reasonably foreseeable”) is relevant conduct

under this provision. However, when the conduct of others does not meet any one of the

criteria set forth in subdivisions (i) through (iii), the conduct is not relevant conduct under

this provision.

(B) Scope.—Because a count may be worded broadly and include the conduct of many participants over a period of time, the scope of the “jointly undertaken criminal activity” is not

necessarily the same as the scope of the entire conspiracy, and hence relevant conduct is

not necessarily the same for every participant. In order to determine the defendant’s accountability for the conduct of others under subsection (a)(1)(B), the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake

(i.e., the scope of the specific conduct and objectives embraced by the defendant’s agreement). In doing so, the court may consider any explicit agreement or implicit agreement

fairly inferred from the conduct of the defendant and others. Accordingly, the accountability

of the defendant for the acts of others is limited by the scope of his or her agreement to

jointly undertake the particular criminal activity. Acts of others that were not within the

scope of the defendant’s agreement, even if those acts were known or reasonably foreseeable

to the defendant, are not relevant conduct under subsection (a)(1)(B).

In cases involving contraband (including controlled substances), the scope of the jointly undertaken criminal activity (and thus the accountability of the defendant for the contraband

that was the object of that jointly undertaken activity) may depend upon whether, in the

particular circumstances, the nature of the offense is more appropriately viewed as one

jointly undertaken criminal activity or as a number of separate criminal activities.

A defendant’s relevant conduct does not include the conduct of members of a conspiracy

prior to the defendant joining the conspiracy, even if the defendant knows of that conduct

(e.g., in the case of a defendant who joins an ongoing drug distribution conspiracy knowing

that it had been selling two kilograms of cocaine per week, the cocaine sold prior to the

defendant joining the conspiracy is not included as relevant conduct in determining the

defendant’s offense level).

(C) In Furtherance.—The court must determine if the conduct (acts and omissions) of others

was in furtherance of the jointly undertaken criminal activity.

(D) Reasonably Foreseeable.—The court must then determine if the conduct (acts and omissions) of others that was within the scope of, and in furtherance of, the jointly undertaken

criminal activity was reasonably foreseeable in connection with that criminal activity.

Note that the criminal activity that the defendant agreed to jointly undertake, and the reasonably foreseeable conduct of others in furtherance of that criminal activity, are not necessarily identical. For example, two defendants agree to commit a robbery and, during the

course of that robbery, the first defendant assaults and injures a victim. The second defendant is accountable for the assault and injury to the victim (even if the second defendant had

not agreed to the assault and had cautioned the first defendant to be careful not to hurt

anyone) because the assaultive conduct was within the scope of the jointly undertaken criminal activity (the robbery), was in furtherance of that criminal activity (the robbery), and

was reasonably foreseeable in connection with that criminal activity (given the nature of

the offense).

With respect to offenses involving contraband (including controlled substances), the defendant is accountable under subsection (a)(1)(A) for all quantities of contraband with which he

was directly involved and, in the case of a jointly undertaken criminal activity under subsection (a)(1)(B), all quantities of contraband that were involved in transactions carried out

by other participants, if those transactions were within the scope of, and in furtherance of,

the jointly undertaken criminal activity and were reasonably foreseeable in connection with

that criminal activity.

The requirement of reasonable foreseeability applies only in respect to the conduct (i.e., acts

and omissions) of others under subsection (a)(1)(B). It does not apply to conduct that the

defendant personally undertakes, aids, abets, counsels, commands, induces, procures, or

willfully causes; such conduct is addressed under subsection (a)(1)(A).

4. Illustrations of Conduct for Which the Defendant is Accountable under Subsections (a)(1)(A) and (B).—

(A) Acts and omissions aided or abetted by the defendant.—

(i) Defendant A is one of ten persons hired by Defendant B to off-load a ship containing

marihuana. The off-loading of the ship is interrupted by law enforcement officers and

one ton of marihuana is seized (the amount on the ship as well as the amount off-loaded). Defendant A and the other off-loaders are arrested and convicted of importation of marihuana. Regardless of the number of bales he personally unloaded, Defendant A is accountable for the entire one-ton quantity of marihuana. Defendant A aided

and abetted the off-loading of the entire shipment of marihuana by directly participating in the off-loading of that shipment (i.e., the specific objective of the criminal

activity he joined was the off-loading of the entire shipment). Therefore, he is accountable for the entire shipment under subsection (a)(1)(A) without regard to the issue of

reasonable foreseeability. This is conceptually similar to the case of a defendant who

transports a suitcase knowing that it contains a controlled substance and, therefore,

is accountable for the controlled substance in the suitcase regardless of his knowledge

or lack of knowledge of the actual type or amount of that controlled substance.

In certain cases, a defendant may be accountable for particular conduct under more

than one subsection of this guideline. As noted in the preceding paragraph, Defendant A is accountable for the entire one-ton shipment of marihuana under subsection (a)(1)(A). Defendant A also is accountable for the entire one-ton shipment of marihuana on the basis of subsection (a)(1)(B) (applying to a jointly undertaken criminal

activity). Defendant A engaged in a jointly undertaken criminal activity and all three

criteria of subsection (a)(1)(B) are met. First, the conduct was within the scope of the

criminal activity (the importation of the shipment of marihuana). Second, the off-loading of the shipment of marihuana was in furtherance of the criminal activity, as described above. And third, a finding that the one-ton quantity of marihuana was reasonably foreseeable is warranted from the nature of the undertaking itself (the importation of marihuana by ship typically involves very large quantities of marihuana).

The specific circumstances of the case (the defendant was one of ten persons off-loading the marihuana in bales) also support this finding. In an actual case, of course, if a

defendant’s accountability for particular conduct is established under one provision of

this guideline, it is not necessary to review alternative provisions under which such

accountability might be established. See Application Note 2.

(B) Acts and omissions aided or abetted by the defendant; acts and omissions in a

jointly undertaken criminal activity.—

(i) Defendant C is the getaway driver in an armed bank robbery in which $15,000 is

taken and a teller is assaulted and injured. Defendant C is accountable for the money

taken under subsection (a)(1)(A) because he aided and abetted the act of taking the

money (the taking of money was the specific objective of the offense he joined). Defendant C is accountable for the injury to the teller under subsection (a)(1)(B) because

the assault on the teller was within the scope and in furtherance of the jointly undertaken criminal activity (the robbery), and was reasonably foreseeable in connection

with that criminal activity (given the nature of the offense).

As noted earlier, a defendant may be accountable for particular conduct under more

than one subsection. In this example, Defendant C also is accountable for the money

taken on the basis of subsection (a)(1)(B) because the taking of money was within the

scope and in furtherance of the jointly undertaken criminal activity (the robbery), and

was reasonably foreseeable (as noted, the taking of money was the specific objective

of the jointly undertaken criminal activity).

(C) Requirements that the conduct of others be within the scope of the jointly undertaken criminal activity, in furtherance of that criminal activity, and reasonably

foreseeable.—

(i) Defendant D pays Defendant E a small amount to forge an endorsement on an $800

stolen government check. Unknown to Defendant E, Defendant D then uses that check

as a down payment in a scheme to fraudulently obtain $15,000 worth of merchandise.

Defendant E is convicted of forging the $800 check and is accountable for the forgery

of this check under subsection (a)(1)(A). Defendant E is not accountable for the

$15,000 because the fraudulent scheme to obtain $15,000 was not within the scope of

the jointly undertaken criminal activity (i.e., the forgery of the $800 check).

(ii) Defendants F and G, working together, design and execute a scheme to sell fraudulent

stocks by telephone. Defendant F fraudulently obtains $20,000. Defendant G fraudulently obtains $35,000. Each is convicted of mail fraud. Defendants F and G each are

accountable for the entire amount ($55,000). Each defendant is accountable for the

amount he personally obtained under subsection (a)(1)(A). Each defendant is accountable for the amount obtained by his accomplice under subsection (a)(1)(B) because the

conduct of each was within the scope of the jointly undertaken criminal activity (the

scheme to sell fraudulent stocks), was in furtherance of that criminal activity, and

was reasonably foreseeable in connection with that criminal activity.

(iii) Defendants H and I engaged in an ongoing marihuana importation conspiracy in

which Defendant J was hired only to help off-load a single shipment. Defendants H,

I, and J are included in a single count charging conspiracy to import marihuana. Defendant J is accountable for the entire single shipment of marihuana he helped import

under subsection (a)(1)(A) and any acts and omissions of others related to the importation of that shipment on the basis of subsection (a)(1)(B) (see the discussion in example (A)(i) above). He is not accountable for prior or subsequent shipments of marihuana imported by Defendants H or I because those acts were not within the scope of

his jointly undertaken criminal activity (the importation of the single shipment of

marihuana).

(iv) Defendant K is a wholesale distributor of child pornography. Defendant L is a retail-

level dealer who purchases child pornography from Defendant K and resells it, but

otherwise operates independently of Defendant K. Similarly, Defendant M is a retail-

level dealer who purchases child pornography from Defendant K and resells it, but

otherwise operates independently of Defendant K. Defendants L and M are aware of

each other’s criminal activity but operate independently. Defendant N is Defendant K’s assistant who recruits customers for Defendant K and frequently supervises

the deliveries to Defendant K’s customers. Each defendant is convicted of a count

charging conspiracy to distribute child pornography. Defendant K is accountable under subsection (a)(1)(A) for the entire quantity of child pornography sold to Defendants L and M. Defendant N also is accountable for the entire quantity sold to those

defendants under subsection (a)(1)(B) because the entire quantity was within the

scope of his jointly undertaken criminal activity (to distribute child pornography with

Defendant K), in furtherance of that criminal activity, and reasonably foreseeable.

Defendant L is accountable under subsection (a)(1)(A) only for the quantity of child

pornography that he purchased from Defendant K because he is not engaged in a

jointly undertaken criminal activity with the other defendants. For the same reason,

Defendant M is accountable under subsection (a)(1)(A) only for the quantity of child

pornography that he purchased from Defendant K.

(v) Defendant O knows about her boyfriend’s ongoing drug-trafficking activity, but agrees

to participate on only one occasion by making a delivery for him at his request when

he was ill. Defendant O is accountable under subsection (a)(1)(A) for the drug quantity

involved on that one occasion. Defendant O is not accountable for the other drug sales

made by her boyfriend because those sales were not within the scope of her jointly

undertaken criminal activity (i.e., the one delivery).

(vi) Defendant P is a street-level drug dealer who knows of other street-level drug dealers

in the same geographic area who sell the same type of drug as he sells. Defendant P

and the other dealers share a common source of supply, but otherwise operate independently. Defendant P is not accountable for the quantities of drugs sold by the other

street-level drug dealers because he is not engaged in a jointly undertaken criminal

activity with them. In contrast, Defendant Q, another street-level drug dealer, pools

his resources and profits with four other street-level drug dealers. Defendant Q is

engaged in a jointly undertaken criminal activity and, therefore, he is accountable

under subsection (a)(1)(B) for the quantities of drugs sold by the four other dealers

during the course of his joint undertaking with them because those sales were within

the scope of the jointly undertaken criminal activity, in furtherance of that criminal

activity, and reasonably foreseeable in connection with that criminal activity.

(vii) Defendant R recruits Defendant S to distribute 500 grams of cocaine. Defendant S

knows that Defendant R is the prime figure in a conspiracy involved in importing

much larger quantities of cocaine. As long as Defendant S’s agreement and conduct is

limited to the distribution of the 500 grams, Defendant S is accountable only for that

500 gram amount (under subsection (a)(1)(A)), rather than the much larger quantity

imported by Defendant R. Defendant S is not accountable under subsection (a)(1)(B)

for the other quantities imported by Defendant R because those quantities were not

within the scope of his jointly undertaken criminal activity (i.e., the 500 grams).

(viii) Defendants T, U, V, and W are hired by a supplier to backpack a quantity of marihuana across the border from Mexico into the United States. Defendants T, U, V,

and W receive their individual shipments from the supplier at the same time and co-ordinate their importation efforts by walking across the border together for mutual

assistance and protection. Each defendant is accountable for the aggregate quantity

of marihuana transported by the four defendants. The four defendants engaged in a

jointly undertaken criminal activity, the object of which was the importation of the

four backpacks containing marihuana (subsection (a)(1)(B)), and aided and abetted

each other’s actions (subsection (a)(1)(A)) in carrying out the jointly undertaken criminal activity (which under subsection (a)(1)(B) were also in furtherance of, and reasonably foreseeable in connection with, the criminal activity). In contrast, if Defendants T, U, V, and W were hired individually, transported their individual shipments

at different times, and otherwise operated independently, each defendant would be

accountable only for the quantity of marihuana he personally transported (subsection (a)(1)(A)). As this example illustrates, the scope of the jointly undertaken criminal activity may depend upon whether, in the particular circumstances, the nature of

the offense is more appropriately viewed as one jointly undertaken criminal activity

or as a number of separate criminal activities. See Application Note 3(B).

5. Application of Subsection (a)(2).—

(A) Relationship to Grouping of Multiple Counts.—“Offenses of a character for which

§3D1.2(d) would require grouping of multiple counts,” as used in subsection (a)(2), applies

to offenses for which grouping of counts would be required under §3D1.2(d) had the defendant been convicted of multiple counts. Application of this provision does not require the

defendant, in fact, to have been convicted of multiple counts. For example, where the defendant engaged in three drug sales of 10, 15, and 20 grams of cocaine, as part of the same

course of conduct or common scheme or plan, subsection (a)(2) provides that the total quantity of cocaine involved (45 grams) is to be used to determine the offense level even if the

defendant is convicted of a single count charging only one of the sales. If the defendant is

convicted of multiple counts for the above noted sales, the grouping rules of Chapter Three,

Part D (Multiple Counts) provide that the counts are grouped together. Although Chapter

Three, Part D (Multiple Counts) applies to multiple counts of conviction, it does not limit

the scope of subsection (a)(2). Subsection (a)(2) merely incorporates by reference the types

of offenses set forth in §3D1.2(d); thus, as discussed above, multiple counts of conviction are

not required for subsection (a)(2) to apply.

As noted above, subsection (a)(2) applies to offenses of a character for which §3D1.2(d)

would require grouping of multiple counts, had the defendant been convicted of multiple

counts. For example, the defendant sells 30 grams of cocaine (a violation of 21 U.S.C. § 841)

on one occasion and, as part of the same course of conduct or common scheme or plan, attempts to sell an additional 15 grams of cocaine (a violation of 21 U.S.C. § 846) on another

occasion. The defendant is convicted of one count charging the completed sale of 30 grams

of cocaine. The two offenses (sale of cocaine and attempted sale of cocaine), although covered

by different statutory provisions, are of a character for which §3D1.2(d) would require the

grouping of counts, had the defendant been convicted of both counts. Therefore, subsection (a)(2) applies and the total amount of cocaine (45 grams) involved is used to determine

the offense level.

(B) “Same Course of Conduct or Common Scheme or Plan”.—“Common scheme or plan”

and “same course of conduct” are two closely related concepts.

(i) Common scheme or plan. For two or more offenses to constitute part of a common

scheme or plan, they must be substantially connected to each other by at least one

common factor, such as common victims, common accomplices, common purpose, or

similar modus operandi. For example, the conduct of five defendants who together

defrauded a group of investors by computer manipulations that unlawfully transferred funds over an eighteen-month period would qualify as a common scheme or

plan on the basis of any of the above listed factors; i.e., the commonality of victims

(the same investors were defrauded on an ongoing basis), commonality of offenders

(the conduct constituted an ongoing conspiracy), commonality of purpose (to defraud

the group of investors), or similarity of modus operandi (the same or similar computer

manipulations were used to execute the scheme).

(ii) Same course of conduct. Offenses that do not qualify as part of a common scheme

or plan may nonetheless qualify as part of the same course of conduct if they are sufficiently connected or related to each other as to warrant the conclusion that they are

part of a single episode, spree, or ongoing series of offenses. Factors that are appropriate to the determination of whether offenses are sufficiently connected or related

to each other to be considered as part of the same course of conduct include the degree

of similarity of the offenses, the regularity (repetitions) of the offenses, and the time

interval between the offenses. When one of the above factors is absent, a stronger

presence of at least one of the other factors is required. For example, where the conduct alleged to be relevant is relatively remote to the offense of conviction, a stronger

showing of similarity or regularity is necessary to compensate for the absence of temporal proximity. The nature of the offenses may also be a relevant consideration

(e.g., a defendant’s failure to file tax returns in three consecutive years appropriately

would be considered as part of the same course of conduct because such returns are

only required at yearly intervals).

(C) Conduct Associated with a Prior Sentence.—For the purposes of subsection (a)(2), offense conduct associated with a sentence that was imposed prior to the acts or omissions

constituting the instant federal offense (the offense of conviction) is not considered as part

of the same course of conduct or common scheme or plan as the offense of conviction.

Examples: (1) The defendant was convicted for the sale of cocaine and sentenced to state

prison. Immediately upon release from prison, he again sold cocaine to the same person,

using the same accomplices and modus operandi. The instant federal offense (the offense of

conviction) charges this latter sale. In this example, the offense conduct relevant to the

state prison sentence is considered as prior criminal history, not as part of the same course

of conduct or common scheme or plan as the offense of conviction. The prior state prison

sentence is counted under Chapter Four (Criminal History and Criminal Livelihood).

(2) The defendant engaged in two cocaine sales constituting part of the same course of conduct or common scheme or plan. Subsequently, he is arrested by state authorities for the

first sale and by federal authorities for the second sale. He is convicted in state court for

the first sale and sentenced to imprisonment; he is then convicted in federal court for the

second sale. In this case, the cocaine sales are not separated by an intervening sentence.

Therefore, under subsection (a)(2), the cocaine sale associated with the state conviction is

considered as relevant conduct to the instant federal offense. The state prison sentence for

that sale is not counted as a prior sentence; see §4A1.2(a)(1).

Note, however, in certain cases, offense conduct associated with a previously imposed sentence may be expressly charged in the offense of conviction. Unless otherwise provided,

such conduct will be considered relevant conduct under subsection (a)(1), not (a)(2).

6. Application of Subsection (a)(3).—

(A) Definition of “Harm”.—“Harm” includes bodily injury, monetary loss, property damage

and any resulting harm.

(B) Risk or Danger of Harm.—If the offense guideline includes creating a risk or danger of

harm as a specific offense characteristic, whether that risk or danger was created is to be

considered in determining the offense level. See, e.g., §2K1.4 (Arson; Property Damage by

Use of Explosives); §2Q1.2 (Mishandling of Hazardous or Toxic Substances or Pesticides).

If, however, the guideline refers only to harm sustained (e.g., §2A2.2 (Aggravated Assault);

§2B3.1 (Robbery)) or to actual, attempted or intended harm (e.g., §2B1.1 (Theft, Property

Destruction, and Fraud); §2X1.1 (Attempt, Solicitation, or Conspiracy)), the risk created

enters into the determination of the offense level only insofar as it is incorporated into the

base offense level. Unless clearly indicated by the guidelines, harm that is merely risked is

not to be treated as the equivalent of harm that occurred. The extent to which harm that

was attempted or intended enters into the determination of the offense level should be determined in accordance with §2X1.1 (Attempt, Solicitation, or Conspiracy) and the applicable offense guideline.

7. Factors Requiring Conviction under a Specific Statute.—A particular guideline (in the

base offense level or in a specific offense characteristic) may expressly direct that a particular

factor be applied only if the defendant was convicted of a particular statute. For example, in

§2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary Transactions in Property

Derived from Unlawful Activity), subsection (b)(2)(B) applies if the defendant “was convicted under 18 U.S.C. § 1956”. Unless such an express direction is included, conviction under the statute

is not required. Thus, use of a statutory reference to describe a particular set of circumstances

does not require a conviction under the referenced statute. An example of this usage is found in

§2A3.4(a)(2) (“if the offense involved conduct described in 18 U.S.C. § 2242”).

Unless otherwise specified, an express direction to apply a particular factor only if the defendant

was convicted of a particular statute includes the determination of the offense level where the

defendant was convicted of conspiracy, attempt, solicitation, aiding or abetting, accessory after

the fact, or misprision of felony in respect to that particular statute. For example, §2S1.1(b)(2)(B)

(which is applicable only if the defendant is convicted under 18 U.S.C. § 1956) would be applied

in determining the offense level under §2X3.1 (Accessory After the Fact) in a case in which the

defendant was convicted of accessory after the fact to a violation of 18 U.S.C. § 1956 but would

not be applied in a case in which the defendant is convicted of a conspiracy under 18 U.S.C.

§ 1956(h) and the sole object of that conspiracy was to commit an offense set forth in 18 U.S.C.

§ 1957. See Application Note 3(C) of §2S1.1.

8. Partially Completed Offense.—In the case of a partially completed offense (e.g., an offense

involving an attempted theft of $800,000 and a completed theft of $30,000), the offense level is

to be determined in accordance with §2X1.1 (Attempt, Solicitation, or Conspiracy) whether the

conviction is for the substantive offense, the inchoate offense (attempt, solicitation, or conspiracy), or both. See Application Note 4 in the Commentary to §2X1.1. Note, however, that Application Note 4 is not applicable where the offense level is determined under §2X1.1(c)(1).

9. Solicitation, Misprision, or Accessory After the Fact.—In the case of solicitation, misprision, or accessory after the fact, the conduct for which the defendant is accountable includes all

conduct relevant to determining the offense level for the underlying offense that was known, or

reasonably should have been known, by the defendant.

10. Acquitted Conduct.—Subsection (c) provides that relevant conduct does not include conduct

for which the defendant was criminally charged and acquitted in federal court, unless such conduct establishes, in whole or in part, the instant offense of conviction. There may be cases in

which certain conduct underlies both an acquitted charge and the instant offense of conviction.

In those cases, the court is in the best position to determine whether such overlapping conduct

establishes, in whole or in part, the instant offense of conviction and therefore qualifies as relevant conduct.

Background: This section prescribes rules for determining the applicable guideline sentencing range,

whereas §1B1.4 (Information to be Used in Imposing Sentence) governs the range of information that

the court may consider in adjudging sentence once the guideline sentencing range has been determined. Conduct that is not formally charged or is not an element of the offense of conviction may enter

into the determination of the applicable guideline sentencing range. The range of information that

may be considered at sentencing is broader than the range of information upon which the applicable

sentencing range is determined.

Subsection (a) establishes a rule of construction by specifying, in the absence of more explicit

instructions in the context of a specific guideline, the range of conduct that is relevant to determining

the applicable offense level (except for the determination of the applicable offense guideline, which is

governed by §1B1.2(a)). No such rule of construction is necessary with respect to Chapters Four and

Five because the guidelines in those chapters are explicit as to the specific factors to be considered.

Subsection (a)(2) provides for consideration of a broader range of conduct with respect to one

class of offenses, primarily certain property, tax, fraud and drug offenses for which the guidelines

depend substantially on quantity, than with respect to other offenses such as assault, robbery and

burglary. The distinction is made on the basis of §3D1.2(d), which provides for grouping together

(i.e., treating as a single count) all counts charging offenses of a type covered by this subsection. However, the applicability of subsection (a)(2) does not depend upon whether multiple counts are alleged.

Thus, in an embezzlement case, for example, embezzled funds that may not be specified in any count

of conviction are nonetheless included in determining the offense level if they were part of the same

course of conduct or part of the same scheme or plan as the count of conviction. Similarly, in a drug

distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a

common scheme or plan as the count of conviction. On the other hand, in a robbery case in which the

defendant robbed two banks, the amount of money taken in one robbery would not be taken into account in determining the guideline range for the other robbery, even if both robberies were part of a

single course of conduct or the same scheme or plan. (This is true whether the defendant is convicted

of one or both robberies.)

Subsections (a)(1) and (a)(2) adopt different rules because offenses of the character dealt with in

subsection (a)(2) (i.e., to which §3D1.2(d) applies) often involve a pattern of misconduct that cannot

readily be broken into discrete, identifiable units that are meaningful for purposes of sentencing. For

example, a pattern of embezzlement may consist of several acts of taking that cannot separately be

identified, even though the overall conduct is clear. In addition, the distinctions that the law makes as

to what constitutes separate counts or offenses often turn on technical elements that are not especially

meaningful for purposes of sentencing. Thus, in a mail fraud case, the scheme is an element of the

offense and each mailing may be the basis for a separate count; in an embezzlement case, each taking

may provide a basis for a separate count. Another consideration is that in a pattern of small thefts, for

example, it is important to take into account the full range of related conduct. Relying on the entire

range of conduct, regardless of the number of counts that are alleged or on which a conviction is obtained, appears to be the most reasonable approach to writing workable guidelines for these offenses.

Conversely, when §3D1.2(d) does not apply, so that convictions on multiple counts are considered separately in determining the guideline sentencing range, the guidelines prohibit aggregation of quantities from other counts in order to prevent “double counting” of the conduct and harm from each count

of conviction. Continuing offenses present similar practical problems. The reference to §3D1.2(d),

which provides for grouping of multiple counts arising out of a continuing offense when the offense

guideline takes the continuing nature into account, also prevents double counting.

Subsection (a)(4) requires consideration of any other information specified in the applicable

guideline. For example, §2A1.4 (Involuntary Manslaughter) specifies consideration of the defendant’s

state of mind; §2K1.4 (Arson; Property Damage By Use of Explosives) specifies consideration of the

risk of harm created.