On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Crim. No. 94-0185).
Before: Greenberg, Roth, And Aldisert, Circuit Judges.
GREENBERG, Circuit Judge.
On April 26, 1994, a federal grand jury returned a multi-count indictment charging Theresa J. Bush with five counts of making false statements in connection with the acquisition of a firearm in violation of 18 U.S.C. § 922(a)(6) (the false statement counts), and five counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (the possession counts). On July 13, 1994, Bush plead guilty to one false statement count and one possession count. However, Bush stipulated to having committing the other eight charged offenses, and "agreed that, for the purpose of determining [her] Sentencing Guidelines range, . . . these additional offenses shall be treated as if the [she] had been convicted of additional counts charging these offenses." App. 14.
The prosecutor and the defense attorney submitted sentencing memorandums addressing two issues to the district court: (1) which Sentencing Guidelines Manual applies to Bush's sentence; and (2) how the multiple counts should be grouped. At the October 14, 1994, sentencing hearing the prosecutor conceded that because of potential ex post facto problems, the 1990 Guidelines Manual should apply. See, e.g., United States v. Bertoli, 40 F.3d 1384, 1403 (3d Cir. 1994) (although "generally, the sentencing court must apply the Guidelines Manual in effect at the time of sentencing . . . 'where such retroactivity results in harsher penalties, Ex Post Facto Clause problems arise, and courts must apply the earlier version.'") (citation omitted).*fn1 The district court then divided the offense conduct into three separate groups, and, pursuant to U.S.S.G. § 3D1.4, computed Bush's offense level to be 13.*fn2
The district court thereupon sentenced Bush to concurrent 16-month custodial terms, to be followed by concurrent 3-year terms of supervised release. On October 21, 1994, Bush filed a timely notice of appeal of her sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We will affirm.
The sole issue on this appeal is whether the district court erred in dividing the offense conduct into three groups. "This contention requires a construction of the guidelines so that our scope of review . . . is plenary." United States v. Riviere, 924 F.2d 1289, 1304 (3d Cir. 1991). Of course, we review the district court's findings of fact leading to its grouping determination only for clear error.
Section 3D1.1(a) of the Sentencing Guidelines directs courts to combine multiple counts of conviction into "'distinct Groups of Closely Related Counts'" when certain criteria are met. United States v. Bertoli, 40 F.3d at 1401 (quoting U.S.S.G. § 3D1.1(a)). This practice of "grouping," as it has come to be called, was designed "to prevent multiple punishment for substantially identical offense conduct, while still ensuring incremental punishment for significant additional criminal conduct." United States v. Wessells , 936 F.2d 165, 168 (4th Cir. 1991). In accommodating these concerns, courts must distinguish between occasions when increasing the punishment for an additional count would punish the defendant for conduct taken into account in another count and those occasions when the added counts reflect additional criminal culpability. The guidelines provide in this regard that "all counts involving substantially the same harm shall be grouped together into a single Group", U.S.S.G. § 3D1.2, and define "substantially the same harm" as follows:
(a) When counts involve the same victim and the same act or transaction.
(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.
(c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline ...