U.S.S.G. Ch. 3, Pt. D

Ch. 3 Pt. D

Introductory Commentary

This part provides rules for determining a single offense level that encompasses all the counts of

which the defendant is convicted. These rules apply to multiple counts of conviction (A) contained in

the same indictment or information; or (B) contained in different indictments or informations for which

sentences are to be imposed at the same time or in a consolidated proceeding. The single, “combined”

offense level that results from applying these rules is used, after adjustment pursuant to the guidelines

in subsequent parts, to determine the sentence. These rules have been designed primarily with the

more commonly prosecuted federal offenses in mind.

The rules in this part seek to provide incremental punishment for significant additional criminal

conduct. The most serious offense is used as a starting point. The other counts determine how much

to increase the offense level. The amount of the additional punishment declines as the number of additional offenses increases.

Some offenses that may be charged in multiple-count indictments are so closely intertwined with

other offenses that conviction for them ordinarily would not warrant increasing the guideline range.

For example, embezzling money from a bank and falsifying the related records, although legally distinct offenses, represent essentially the same type of wrongful conduct with the same ultimate harm,

so that it would be more appropriate to treat them as a single offense for purposes of sentencing. Other

offenses, such as an assault causing bodily injury to a teller during a bank robbery, are so closely

related to the more serious offense that it would be appropriate to treat them as part of the more

serious offense, leaving the sentence enhancement to result from application of a specific offense characteristic.

In order to limit the significance of the formal charging decision and to prevent multiple punishment for substantially identical offense conduct, this part provides rules for grouping offenses together.

Convictions on multiple counts do not result in a sentence enhancement unless they represent additional conduct that is not otherwise accounted for by the guidelines. In essence, counts that are

grouped together are treated as constituting a single offense for purposes of the guidelines.

Some offense guidelines, such as those for theft, fraud and drug offenses, contain provisions that

deal with repetitive or ongoing behavior. Other guidelines, such as those for assault and robbery, are

oriented more toward single episodes of criminal behavior. Accordingly, different rules are required

for dealing with multiple-count convictions involving these two different general classes of offenses.

More complex cases involving different types of offenses may require application of one rule to some of

the counts and another rule to other counts.

Some offenses, e.g., racketeering and conspiracy, may be “composite” in that they involve a pattern of conduct or scheme involving multiple underlying offenses. The rules in this part are to be used

to determine the offense level for such composite offenses from the offense level for the underlying

offenses.

Essentially, the rules in this part can be summarized as follows: (1) If the offense guidelines in

Chapter Two base the offense level primarily on the amount of money or quantity of substance involved

(e.g., theft, fraud, drug trafficking, firearms dealing), or otherwise contain provisions dealing with repetitive or ongoing misconduct (e.g., many environmental offenses), add the numerical quantities and

apply the pertinent offense guideline, including any specific offense characteristics for the conduct

taken as a whole. (2) When offenses are closely interrelated, group them together for purposes of the

multiple-count rules, and use only the offense level for the most serious offense in that group. (3) As

to other offenses (e.g., independent instances of assault or robbery), start with the offense level for the

most serious count and use the number and severity of additional counts to determine the amount by

which to increase that offense level.