
USCA1 Opinion

	




          June 21, 1994     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________               No. 92-2228                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               RAMON HERNANDEZ COPLIN,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET               The  court's  opinion  of  March  31, 1994,  is  amended  by          inserting a new footnote 9, immediately following "Cf. U.S.S.G.                                                               ___          5G1.2(d)."          at page 20, line 24, which reads as follows:          "[T]he  total  punishment" under  U.S.S.G.     5G1.2 is  normally          determined by  the guideline range, see id.,  subsection (b), but                                              ___ ___          where the  sentencing court  lawfully departs from  the guideline          range, "the  total punishment" is  the punishment specified  as a          result of  that departure;  and sentences then  run consecutively          "to  the extent necessary to provide a combined sentence equal to          the total punishment."  See id. subsection (d).                                  ___ ___                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                               FOR THE FIRST CIRCUIT                                  FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2228                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               RAMON HERNANDEZ COPLIN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Laura Maldonado  Rodriguez,  Assistant  Federal  Public  Defender,            __________________________        with whom  Benicio Sanchez  Rivera, Federal  Public  Defender, was  on                   _______________________        brief for appellant.            Edwin  O. Vazquez,  Assistant United  States Attorney,  with  whom            _________________        Guillermo Gil,  United States  Attorney, and Jose  A. Quiles-Espinosa,        _____________                                ________________________        Senior Litigation Counsel, were on brief for the United States.                                 ____________________                                    March 31, 1994                                 ____________________                 BOUDIN,  Circuit  Judge.    Ramon Hernandez  Coplin  was                          ______________            indicted  by a grand  jury in two  separate indictments, each            relating to a  separate episode of smuggling  aliens into the            United States.   The first indictment  charged that Hernandez            on April 16, 1992, had been  captain of a yawl intercepted  a            mile  off the coast of Puerto Rico carrying 92 illegal aliens            from the Dominican  Republic.  The  yawl was running  without            lights, had no safety equipment and sought  to avoid capture.            Hernandez, and his assistant Julio Reyes Acosta, were charged            in  four counts  with seeking  to smuggle  four of  the alien            passengers into the United States.  8 U.S.C.   1234(a)(1)(A).                 Thereafter, on  July 1,  1992, Hernandez and  Reyes were            charged  in a  second indictment with  six counts,  under the            same  statute, for  seeking to  smuggle six  aliens into  the            United States on March 26, 1992.  On this earlier  occasion a            yawl  had been used, about the same number of passengers were            aboard, and the same Puerto Rican coastline  approached.  Two            women  drowned that night and their bodies washed up upon the            shore.  The yawl made its way back to the Dominican Republic.            As in  the  earlier  indictment,  each  count  related  to  a            different alien.                 On  July 6, 1992, Hernandez pled guilty to all counts of            both indictments pursuant  to a plea agreement.   In exchange            for  the pleas, the prosecutor agreed  to dismiss yet another            federal   indictment   against   Hernandez   (for   illegally                                         -2-                                         -2-            reentering the  United States after a  prior deportation) but            made  no other promises.   Reyes entered guilty  pleas at the            same time.   In the  change of plea  hearing, the  government            submitted  a  written  version  of  what  it  said  its trial            evidence  would show.    Reyes agreed  with the  government's            version   of   events;  Hernandez   did   so   only  with   a            qualification.    The  present appeal  revolves  around  that            disagreement.                 In substance,  Hernandez  and Reyes  both admitted  that            they had been engaged in the  smuggling operations charged in            the   indictments.    As  to  the  March  26  operation,  the            government's written version of events included the following            language (the emphasis is ours):                 At approximately  midnight and  while the  yawl was                 approximately   100   yards  from   the   beach  at                 Aguadilla, Puerto Rico,  an aircraft  was heard  in                 the  vicinity. At  said  time, the  captain of  the                 yawl, that was later identified as  defendant Ramon                 Hernandez  Coplin,  initially  told  the  passenger                 (sic) that they must jump into the water because he                 did not want to be arrested.  Due to  the fact that                                               _____________________                 some passengers were  hesitating to jump, defendant                 ___________________________________________________                 Ramon Hernandez Coplin drew  a gun and ordered them                 ___________________________________________________                 to jump into the water.                 _______________________                      The  evidence  will  show  that  females  were                 yelling that they did  not know how to swim  or for                 help because  they were drowning.   Defendant Ramon                 Hernandez Coplin and his assistant, defendant Julio                 Reyes Acosta, who aided and abetted in the piloting                 of the yawl, ignored  the pleas of the females  and                 continued  offshore back to  the Dominican Republic                 to avoid arrest.                 At  the   hearing,  the   trial  judge   summarized  the            government's  proffer,  including the  portion  that  we have                                         -3-                                         -3-            emphasized, and  Reyes agreed  (under oath) that  the proffer            was accurate.   Hernandez'  counsel said that  Hernandez also            accepted the proffer except that  "he [Hernandez] has told me            that at no time  did he point a gun at anybody,  or, and also            that he did  not push off the  boat, anybody."   The district            judge  then said this factual dispute should be the object of            evidence in the  sentencing hearing.  The district judge then            drew a line through the words emphasized  above and Hernandez            signed  the amended version of the proffer.  The guilty pleas            were then accepted.1                 On  September 9, 1992, a sentencing hearing was held for            Hernandez.   The government presented as a witness one of the            aliens  smuggled into  Puerto  Rico on  March 26;  testifying            through an interpreter, the  witness said that Hernandez "had            like a revolver  in his  hand and said,  `Everybody jump  in,            everybody jump in.'"   The witness  also testified that  "the            ladies  were  screaming  that  they  were  going  to  drown."            Defense counsel  did not cross examine but the district judge            then  asked,  "Are  you sure  it  was  a gun?"    The witness            replied, "I knew it as a revolver."                                              ____________________                 1Hernandez maintained his  position when interviewed  by            the probation officer, but the  probation officer disbelieved            him.   In  objections to  the pre-sentence  report, Hernandez            denied  ordering anyone to jump into the water 100 yards from            the beach; asserted that the boat had actually hit the beach;            denied  that he had any weapons; and seemingly denied that he            had known that the two women who had died were in danger.                                         -4-                                         -4-                 The defense then  called Hernandez  who testified  under            oath through an interpreter.  He testified that when the boat            reached  the  shore "the  people got  out  of the  boat quite            comfortably and started  heading in land  (sic)" and that  he            did not hear  anyone scream.  On cross examination, Hernandez            said, "I  never forced anybody,  I didn't have  a weapon.   I            have never  used a firearm."  Finally,  the government called            an  agent of  the Immigration  and Naturalization  Service to            refute Hernandez' claims that the boat had reached the shore;            the  INS  agent, based  on the  survival of  the yawl  and on            interviews  with six  passengers, gave  his opinion  that the            yawl had  not reached the beach  in Puerto Rico on  March 26.            Reyes was not called as a witness by either side.                 The  district judge  then made  an express  finding that            Hernandez had brandished a  gun and threatened the  two women            who, as a  result, jumped  into the water  and drowned.   The            court also inquired into Reyes' failure to appear to reaffirm            his  own testimony as to the gun  given at the change of plea            hearing,  and Reyes' apparent  unwillingness to reaffirm that            testimony  to the  probation  officer.   Reyes' counsel  then            stated that his client  told him that "he [Reyes]  was afraid            of Mr. Coplin, and that he would not testify in  front of Mr.            Coplin as to that matter."                 After allowing defense counsel and Hernandez to speak to            the proper  sentence, the court  computed the offense  levels                                         -5-                                         -5-            under the Sentencing Guidelines.2   The court found  that the            base offense level was 9 for the March 26 operation and 9 for            the  April 16 operation.   U.S.S.G.   2L1.1.   The court then            increased both offense levels  by two points each  because of            the  supervisory  authority Hernandez  exercised  over Reyes.            U.S.S.G.   3B1.1(c).   The  court reduced the  figure by  two            points  as  to  the  April  16 operation  for  acceptance  of            responsibility,  U.S.S.G.   3E1.1;  but the  court refused to            make a similar reduction as to the March 26 operation because            Hernandez  had  not accepted  "full  responsibility" for  his            involvement,  "[s]pecifically on the issue of the gun and . .            . the deaths."                 The adjusted offense levels corresponded to imprisonment            ranges of 8 to 14 months for the March 26  operation and 4 to            10 months for  the April  16 operation.   However, the  court            invoked its authority to depart upward,  18 U.S.C.   3553(b),            and it imposed sentences of five years' imprisonment for  the            March 26 operation and four years' imprisonment for the April            16 operation, specifying  that the two  sentences were to  be            served consecutively.  The court found  a departure warranted            in   both  cases   by  the   very  dangerous   conditions  of            transportation in  the yawl (e.g.,  lack of safety  equipment                                         ____                                            ____________________                 2The 1991 version of the guidelines was in effect at the            time of sentencing and  all citations in this opinion  are to            that edition of the guidelines unless otherwise specified.                                         -6-                                         -6-            and  supplies); and the firearm  and deaths were  found to be            aggravating circumstances in the March 26 operation.                 1.   On  appeal, Hernandez  begins  by  challenging  the            departure.    Most  of  the  discussion under  this  head  is            effectively an  attack on  the district court's  findings and            characterizations.   The trial judge's findings on sentencing            may  be  set aside  only if  clearly  erroneous.   See United                                                               ___ ______            States  v.  Pineda,  981  F.2d  569,  572  (1st  Cir.  1992).            ______      ______            Nevertheless,  given  the  magnitude of  the  departure,  the            specific   criticisms   made  by   counsel   deserve  careful            attention.                 First,   at  sentencing,   the  district   judge  orally            described  Hernandez' conduct  in the  March 26  operation as            reckless and criminal behavior resulting in the deaths of two            persons.   In the same  description, the judge  used the word            "murder"  in  referring  to  the  incident.     In  a  formal            sentencing  memorandum,  issued  a   week  or  so  after  the            sentencing, the court elaborated on the  dangerous conditions            in which  Hernandez  had  transported  the  aliens  and  then            referred, "in addition," to Hernandez' "reckless and criminal            behavior,  which resulted  in the  death-murder of  two human            beings."   United  States v.  Hernandez-Coplin, 802  F. Supp.                       ______________     ________________            657, 661 (D.P.R. 1992).                   Hernandez now  points out  that  the probation  officer,            after  interviewing  the  defendant,  concluded  that it  was            "highly probable" that Hernandez did not anticipate the death                                         -7-                                         -7-            of  any of  his passengers.   But  there is  no inconsistency            between the  probation officer's  statement and  the district            court's  summing  up of  the  matter, even  assuming  that an            inconsistency mattered.  Indeed, while the  probation officer            did not use  the word "murder," he  did say that forcing  the            passengers  out  of the  yawl  into heavy  tides  reflected a            reckless disregard for human life and the danger posed to the            passengers was reasonably foreseeable.                 We  think  that  the  trial judge,  like  the  probation            officer,  was describing  Hernandez'  conduct  as  criminally            reckless and that the word "murder" was used colloquially  to            stress  the outrageousness of  the conduct  and to underscore            the evident danger of death that the conduct posed.  So read,            the  word  "murder" is  the kind  of  moral flourish  that is            routine  at sentencing  and wholly  within the  trial judge's            discretion.    As it happens,  Hernandez' conduct might  well            constitute the offense of murder in some jurisdictions, under            the  felony  murder doctrine  or merely  because  the conduct            created a sufficiently direct and foreseeable risk of death.                               Second,   a  further   challenge   to   the   departure,            defendant's brief in this court takes issue with the district            court's finding  that Hernandez  did threaten  the passengers            with a gun.  The brief points out that he consistently denied            doing  so, that  no gun  was found,  and that  the passenger-            witness spoke  of the defendant as having "like" a gun in his                                         -8-                                         -8-            hand.  The first two points  are rather easily explained--the            defendant had  a motive  to lie and  was not captured  on the            March 26  trip--and  the  third is  based  on  an  incomplete            version of  the  testimony:   after  the  passenger  witness'            ambiguous reference  to "like,"  the trial judge  (as already            noted) specifically asked  the witness whether  he saw a  gun            and received an affirmative reply.                 In all events, the trial judge heard both the  passenger            witness and  Hernandez testify and specifically  resolved the            credibility  issue  against  the  latter.    Reyes,  the  co-            defendant,  also agreed that the gun had been used, before he            refused  to  testify--quite  possibly  out  of   fear.    The            probation officer's report spoke  of the use of a  handgun by            the defendant being  "substantiated by more  than one of  the            alien witnesses"  interviewed by  INS.   No  reviewing  court            could  possibly find  that the  district court's  own finding            that a gun was used lacked evidentiary support or was clearly            erroneous.                 Third,  Hernandez  argues  that  the  magnitude  of  the            departure   in  this  case  is  "inordinately  unreasonable,"            arguing that it amounted to an increase of almost 700 percent            over the guideline ranges otherwise  applicable.  Mathematics            aside, the departure was  certainly substantial, the sentence            for the  March 26  operation being  the statutory maximum  of            five  years  and  the four-year  sentence  for  the April  16            operation being several times the guideline maximum.                                           -9-                                         -9-                 There is no doubt  that the district court  was entitled            to  depart  from the  guideline  range in  both  cases, based            solely  upon   the  dangerous   conditions   created  by   an            inadequately  equipped  vessel.    This  is a  ground  for  a            departure,  as  the  guidelines  and  case  law  make  clear,            U.S.S.G.   2L1.1, application note 8; United States v. Reyes,                                                  _____________    _____            927  F.2d 48, 52 (1st Cir. 1991), and the undisputed evidence            supports  such a  finding.  It  was also  clearly permissible            under this rubric  to treat as  a further aggravating  factor            the  fact, as found by the district court, that Hernandez had            forced  passengers into  the water  resulting in  two deaths.            U.S.S.G.   5K2.1.                 As  to  the  magnitude of  the  departure,  the test  is            whether the departure is "reasonable" and under the case  law            the  standard of review is  quite deferential to the district            judge.  Reyes, 927 F.2d at 52-53.  The "multiple" represented                    _____            by  the departure may be unusual in this case, but the number            of voyagers endangered on the second trip and the fact of two            deaths on the  first trip  also distinguish this  case.   The            sentencing memorandum  sets  forth in  detail  the basis  for            finding  that the  passengers on  both trips  were recklessly            endangered.  802 F.  Supp. at 658-61.   We do not think  that            the district judge's choice exceeded permissible bounds.                 2.   In  his  second  argument,  Hernandez  attacks  the            district court's failure to  allow a two point  reduction for            acceptance  of  responsibility in  relation to  the  March 26                                         -10-                                         -10-            operation.    Although the  district judge  did allow  such a            reduction for  the April 16  operation, based primarily  upon            the  guilty plea, he denied  that reduction for  the March 26            operation because Hernandez refused to admit that he had used            a gun and had forced passengers from  the boat.  This denial,            says Hernandez, is improper because he did admit to the March            26  smuggling  operation  and  is  not  required  to   accept            responsibility for other acts not charged in the indictment.                 This seemingly straightforward issue has engaged courts,            and  the  Sentencing Commission,  in a  remarkable  amount of            controversy.   Construing the pertinent guideline  as it read            prior to November 1, 1992,3 this court held that  as a matter            of construction the guideline did not call upon the defendant            (as  a  condition of  obtaining  the reduction)  to  admit to            conduct charged  in  other,  related  counts  that  had  been            dismissed.  United States v. Perez-Franco,  873 F.2d 455 (1st                        _____________    ____________            Cir.  1989).  Indeed, two  of the three  panel members opined            that any such condition  could violate the Fifth  Amendment's            privilege against self-incrimination.  Id. at 461-64.                                                     ___                 Thereafter,  the  Sentencing   Commission  altered   the            guideline's application note, effective November 1, 1992,  to                                            ____________________                 3At that  time,  the  guideline  provided--in  the  1991            version  which  applies  to  this case--that  in  determining            whether  the  defendant  accepted  responsibility   for  "his            criminal  conduct,"  U.S.S.G.     3E1.1(a),  the court  could            consider whether the defendant had admitted to involvement in            "the  offense [of  conviction]  and related  conduct."   Id.,                                                                     ___            application note 1(c).                                           -11-                                         -11-            make  clear  that acceptance  of responsibility  required the            court to consider the defendant's action in                 truthfully  admitting  the  conduct comprising  the                 offense(s) of conviction, and  truthfully admitting                 or  not  falsely  denying  any  additional relevant                 conduct  for which  the  defendant  is  accountable                 under   1B1.3 (Relevant Conduct).              U.S.S.G.   3E1.1, application note 1(a)  (1992).  Thus, under            the revised guideline the defendant must admit to the conduct            comprising the offense  and either admit or  remain silent as            to other relevant  conduct.  Relevant  conduct includes  "all            actions and  omissions committed . . . by the defendant . . .            that  occurred  during  the  commission  of  the  offense  of            conviction . . . ."  U.S.S.G.   1B1.3(a)(1).                   Under this  version of  the guidelines,  Hernandez would            receive no  reduction for acceptance of  responsibility as to            the March 26 offense.  Forcing passengers into the water with            a  gun is  clearly relevant  conduct;  and Hernandez  did not            accept  responsibility  for  it  or  remain  silent  but,  as            supportably   found  by   the   district   judge,   lied   by            affirmatively  denying  that  conduct.   Whatever  the  Fifth            Amendment implications of requiring the defendant to admit to                                                                 _____            another  crime, it is clear that the defendant has no license            to lie about the  other crime and can be penalized  under the            guidelines  for doing so.  See United States v. Dunnigan, 113                                       ___ _____________    ________            S. Ct. 1111 (1993).                                         -12-                                         -12-                 Hernandez,  however,  was not  directly subject  to this            version of the guidelines which became effective after he was            sentenced.    The  version  of section  3E1.1  in  effect  at            sentencing, as  construed  by  this  court  in  Perez-Franco,                                                            ____________            arguably did not require  Hernandez to accept  responsibility            for anything other than  smuggling, see 873 F.2d at  459, and                                                ___            it is debatable  whether the pertinent changes in the current            version should be viewed as a clarification or, instead, as a            substantive  change that could  not be  applied retroactively            under the ex post facto clause.  See Ebbole v. United States,                      _____________          ___ ______    _____________            8  F.3d  530 (7th  Cir. 1993)  (holding  the amendment  to be            substantive), cert.  denied, 62  U.S.L.W. 3589 (U.S.  Mar. 7,                          ____   ______            1994).                   We  have  concluded  that  these problems  need  not  be            resolved in this case.  Assuming that Hernandez  was entitled            to the two- point reduction for acceptance of responsibility,            his false denial--we must  regard it as such given  the trial            court's  findings--also  required  a two-point  increase  for                                     ________            obstruction of justice  under U.S.S.G.    3C1.1.  This  long-            standing provision,  which presents no ex  post facto problem                                                   ______________            in  this  case, requires  a  two-level  increase for  willful            attempts to obstruct justice, at sentencing or otherwise, and            it includes  "providing  materially false  information  to  a            judge  or magistrate."    Id., application  note  3(f).   The                                      ___                                         -13-                                         -13-            enhancement is mandatory.  United States  v. Austin, 948 F.2d                                       _____________     ______            783, 789 (1st Cir. 1991).                 This  language  fully   captures  Hernandez'  action  in            denying  to  the judge  that  he had  used  a gun  and forced            passengers off his boat into the  water.  His denials are  of            record; the court found  them to be lies; and  Hernandez knew            what had occurred on the boat and cannot have been innocently            inaccurate.  The materiality  requirement is satisfied, for a            judge  might   well  take  account  of  the  gun  episode  in            sentencing the defendant for  smuggling; indeed, the judge in            this case  warned  of this  possibility  at the  guilty  plea            hearing.  Even if the most demanding test of willfulness were            employed,  we think  that  Hernandez  had  to have  made  his            statements  with   knowledge  that  they  might   affect  his            sentence.4                 Thus even if we assume that a two-point reduction should            have been accorded, it is offset by a two-point increase that            should have been imposed.   The fact that the  government did            not seek this enhancement certainly does  not prevent us from            taking  note of it  in the present   context:   at worst, the            district court gave  the wrong reason for  reaching the right                                            ____________________                 4The  Supreme  Court's  decision  in  United  States  v.                                                       ______________            Dunnigan,  113   S.  Ct.  1111  (1993),   suggests  that  the            ________            willfulness requirement is actually  less demanding, and  may            be satisfied by  showing that the  defendant lied under  oath            and  that the  matter lied  about is  material--regardless of            whether  the defendant  knew that  the  lie might  affect the            outcome.  113 S. Ct. at 1116.                                         -14-                                         -14-            result in  its calculation.  Accordingly,  the supposed error            if it occurred was harmless to the defendant.                 3.   In  his final  attack, Hernandez'  brief poses  the            question  whether the  district  court erred  in refusing  to            group together  the counts  in the two  separate indictments.            The gist of the argument is that, according to Hernandez, the            district  court was required by U.S.S.G.   5G1.3 to treat all            of the counts of the two indictments together and to apply to            them the grouping rules contained in U.S.S.G.   3D1.1 et seq.                                                                  ______            Hernandez' brief claims that these computations would produce            a total offense level of 11, and a maximum guideline range of            8 to 14  months.  In this  case, we think there is  a problem            with  the  computation  of  two  separate  guideline  ranges,            although our  reasoning and  result differ from  the position            urged by Hernandez.                   Despite Hernandez' reliance on U.S.S.G.   5G1.3(b), that            section  almost certainly has  nothing to do  with this case.            The portion  of that section invoked by Hernandez concerned a            defendant who was sentenced  under the guidelines while still            subject  to  an  unexpired  guidelines   sentence  previously            imposed.   With certain exceptions,    5G1.3(b) provided that            in such  a case the new  sentence should be computed  so that            the old  and new  sentences together  would "equal  the total            punishment that  would have been  imposed under   5G1.2 . . .                                         -15-                                         -15-            had all  the sentences been  imposed at the same  time."5  In            our view U.S.S.G.    5G1.3(b)  refers to cases  in which  two            sentences are imposed on different occasions.                                     _________                 Admittedly, this is not  crystal clear from the language            of the provision itself; one might argue from the words alone            that  the provision also embraces a  case where two sentences            are imposed sequentially by  the same judge on the  same day.            But this reading is implicitly  refuted by the commentary  to            U.S.S.G.    5G1.2  which already  provides that  the multiple                                     _______            count provisions apply  not only  to multiple  counts in  the            same  indictment but  also to  multiple counts  "contained in            different indictments  or information for which sentences are            to  be  imposed  at  the  same  time  or  in  a  consolidated            proceeding."   In  other words,  the government  is right  in            arguing that U.S.S.G.   5G1.3 did not apply, but Hernandez is            correct  in thinking that the  concept embodied in U.S.S.G.              5G1.2 applies anyway.6                                            ____________________                 5The  language that  arguably made  U.S.S.G.    5G1.3(b)            applicable  to this  case was  subsequently deleted  from the            guidelines, see U.S.S.G., App.  C, amendment no. 465,  at 290                        ___            (1992), but we consider the guideline language as it stood in            1991.                 6We  say   "the  concept"  because   formally  part  5G,            containing    5G1.2, does not itself come into play until the            court  has determined  a guideline range,  and then  chosen a            specific  sentence  within  or  (where  a  departure  occurs)            outside the range.  Still,    5G1.2 would not make much sense            unless we also assumed that the  grouping rules under chapter            3, part D had previously been applied to counts "contained in            different indictments .  . .  for which sentences  are to  be            imposed at the same time."  Accordingly, we read this concept                                         -16-                                         -16-                 This, however, is only  the first step in  the sequence.            Even if one treats the use of two indictments rather than one            as  irrelevant to  sentencing,  the question  remains how  to            apply  the guidelines  to the multiple  counts in  this case.            The grouping  rules answer  this question by  first directing            that the  district court group  together into a  single group            each  set of "closely related  counts."  U.S.S.G.   3D1.1(a).            Hernandez argued at length to the district court, and appears            to  assume  in  this court,  that  all  ten  counts to  which            Hernandez pled guilty comprised one group of  closely-related            counts.   If this were  so, the  total offense level  for the            entire group would be  the offense level for the  single most            serious count.  U.S.S.G.   3D1.3.                 But it is not so  because under the guideline definition            of  closely related counts, the counts  relating to the March            26  smuggling  operation  constitute  one  group  of  closely            related  counts  and  the  counts relating  to  the  April 16            operation  constitute  a separate  group  of closely  related                                     ________            counts.  The grouping rules expressly say that counts are not            to  be  grouped  together   where  the  "[t]he  defendant  is            convicted  of two  counts, each  for unlawfully  bringing one            alien into  the United  States, but on  different occasions."            U.S.S.G.   3D1.2(b), application note 3, example 7.  Thus the            district  court was  quite  correct in  rejecting  Hernandez'                                            ____________________            into chapter 3, part D.                                         -17-                                         -17-            request  to treat all of the  counts in both indictments as a            single group of closely related counts.                 It  does not  follow,  however, that  separate guideline            ranges are to be used for the two indictments.  Rather, where            the multiple  count grouping  rules apply  but there  is more            than  one group of closely related counts, the groups must be            combined  according  to a  formula  specified  in U.S.S.G.               3D1.4.  It is not entirely surprising that the district judge            overlooked  the  final  step:   neither  the  prosecutor  nor            defense  counsel  argued  for  this  outcome;  the  probation            officer  apparently overlooked  the point;  and it  is hardly            intuitive that  a defendant should receive  a volume discount            in sentencing for arguably unrelated offenses.                 Why this discount is made  available by U.S.S.G.   3D1.4            is nowhere explained in the guidelines.  It appears, however,            that  the  guideline  drafters  were trying  to  assure  some            discount  for crimes that did  not happen to  fall within the            closely related count definitions but were still sufficiently            related so  that merely  to compute individual  sentences and            add  them together  would  overstate the  seriousness of  the            offenses.7    However,  the  guidelines  as  drafted  operate                                                     ___________                                            ____________________                 7For  example,  a defendant  who  in  a single  criminal            episode (say, a bank  robbery) injured two persons would  not            normally  have  the  separate  counts for  the  two  injuries            grouped  as "closely related,"  because two  separate victims            are involved.  U.S.S.G.   3D1.2.   But it might be thought by            some, including the guideline  drafters, that such conduct is            more culpable than injuring a single victim but less culpable                                         -18-                                         -18-            generally, perhaps crudely, by offering the discount wherever            the  multiple  counts  happen  to  be  charged  in  the  same            indictment  (or,  as we  read  the  guidelines, wherever  the            defendant  is  sentenced  at  the same  time  under  multiple            indictments).                 Because  it turns  on  mechanical  choices (namely,  the            choice  to   use  a  single  indictment   or  treat  multiple            indictments together), the  volume discount  for counts  that            are  not  closely  related  may  sometimes  turn  out  to  be            available  where  its  apparent  rationale  does  not  apply.            Pertinently, a  discount might be warranted  where two aliens            are smuggled on  a single trip (indeed,  the guidelines treat            the counts as closely related);  but it may be harder  to see            why a discount  should be applied for  two separate smuggling            ventures  at separate  times,  even though  they  may be  the            subject  of a  single indictment  or two  indictments handled            together.   Any  such anomaly,  however,  can be  handled  by            sentencing at the high point of the range or by a  departure.                 In  all events, the  discount is explicit:   a "combined            offense  level  is determined  by  taking  the offense  level            applicable to the  Group with the  highest offense level  and            increasing that offense level by  the amount indicated in the            . . . [specified] table."  U.S.S.G.   3D1.4.  We have already                                            ____________________            than injuring two victims in two entirely different episodes.                                         -19-                                         -19-            explained why we  agree that the  district court reached  the            right result (or at  least one as favorable as  the defendant            deserved) in computing an  offense level of 11 for  the March            26  operation.  At this  point, U.S.S.G.    3D1.4 called upon            the district judge  to increase  this figure by  2 levels  to            create  a  combined  offense  level  of  13.8   Instead,  the            district court treated  the two indictments as giving rise to            separate offense levels and to  separate guideline sentencing            ranges.                 The question  remains whether the omission  of the final            refinement had any  bearing on the total sentence  imposed by            the  district court.   If  the district  court had  sentenced            within the guideline  range, the proper  offense level of  13            ______            would  have dictated a sentence  of imprisonment of  12 to 18            months.      The  judge   chose   instead   to  depart   very            substantially, imposing a total  term of imprisonment of nine            years.   Looking to the  factors that apparently underlay the            judge's  departure,  one may  doubt  whether  the failure  to            combine the two  offense levels  made any  difference in  the            ultimate sentence of nine years.                 Nevertheless, we have chosen to vacate the sentences and            remand for  resentencing because we cannot  be confident that                                            ____________________                 8The formula  in U.S.S.G.    3D1.4(a)  calls for  a two-            level increase where  (as here)  there is a  second group  of            closely-related counts  whose offense level is  as serious as            or  within 1 to 4  levels less serious  than the most serious            group.                                           -20-                                         -20-            the mistake was harmless.  See Williams v. United States, 112                                       ___ ________    _____________            S.  Ct. 1112,  1121 (1992).    Resentencing in  this instance            requires  no   additional  evidence  and  is   only  a  small            administrative burden.   Even small adjustments  could make a            lot of difference  to the  defendant.  Above  all, the  great            latitude possessed by the district court in deciding  how far            to depart makes it  all the more important that  the district            judge exercise a fully informed discretion.  At least in this            case, we  think this  information should include  the correct            computation of the point of departure.                 The use of  a single  combined offense level  in no  way            prevents the district judge from  imposing a sentence of nine            years  on remand.   The  various grouping  rules are  used in            determining  the guideline  sentence  range;  once the  judge                             _________            determines to  depart from that range,  the statutory maximum            is derived by adding up the  maximums for each of the  counts            on  which the defendant  was convicted,  here five  years for            each of ten counts.   Cf. U.S.S.G.    5G1.2(d).9  Of  course,                                  ___            no one suggests  that a  sentence of fifty  years would be  a                                            ____________________                 9  "[T]he total  punishment" under U.S.S.G.     561.2 is            normally  determined  by   the  guideline  range,   see  id.,                                                                ___  ___            subsection  (b),  but  where  the sentencing  court  lawfully            departs from  the guideline range, "the  total punishment" is            the punishment specified as  a result of that  departure; and            sentences then run consecutively  "to the extent necessary to            provide a  combined sentence equal to  the total punishment."            See id. subsection (d).            ___ ___                                         -21-                                         -21-            proper departure,  but that is because  of the reasonableness            requirement and not on account of the grouping rules.                 The  grouping rules  are one  of those  chapters in  the            Sentencing Guidelines where practical  judgments, unexplained            policy choices, and extreme complexity are so fused that even            the most expert of lawyers and judges can be led astray.  The            glitches that occurred  here cast no  reflection on the  very            able district judge.  Whatever one's conception  of the right            sentence in  this tragic case, the  district court approached            the  matter  with  the  care, concern  and  seriousness  that            sentencing issues always deserve.                 The sentences are  vacated and the case  is remanded for                                    _______                  ________            resentencing  on the premise that the point of departure is a            combined offense level of 13.                   It is so ordered.                 ________________                                         -22-                                         -22-
