          Case: 13-13468   Date Filed: 12/04/2014   Page: 1 of 7


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 13-13468
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 8:12-cr-00552-JSM-TGW-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                 versus

RASHIA WILSON,

                                                        Defendant-Appellant.




                     ________________________

                           No. 13-13590
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 8:12-cr-00433-JSM-TBM-1
              Case: 13-13468    Date Filed: 12/04/2014   Page: 2 of 7


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                     versus

RASHIA WILSON,

                                                             Defendant-Appellant.

                          ________________________

                  Appeals from the United States District Court
                       for the Middle District of Florida
                         ________________________

                               (December 4, 2014)

Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

      In Appeal No. 13-13468, Rashia Wilson, pursuant to a plea agreement,

pleaded guilty to two counts of a 57-count indictment returned against her and

Maurice J. Larry: Count Three, wire fraud committed on April 21, 2012, in

violation of 18 U.S.C. § 1343; and Count Forty-Seven, aggravated identity theft

committed the same day in violation of 18 U.S.C. § 1028A. In Appeal No.

13.13590, Wilson pleaded guilty to both counts of a two-count indictment charging

her as a felon in possession of a firearm on August 21 and September 19, 2012, in




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violation of 18 U.S.C. § 922(g)(1).1 The cases were consolidated for sentencing,

and on July 16, 2013, the District Court sentenced Wilson on Counts Three and

Forty-Seven to consecutive sentences of 210 and 24 months, respectively, for a

total of 234 months. The court ordered those sentences to run consecutively to the

concurrent sentences of 18 months imposed for the two 18 U.S.C. § § 922(g)(1)

offenses, and thus ordered Wilson incarcerated for a total of 252 months.

       Rashia Wilson appeals this total sentence on the ground that the District

Court committed procedural error. The court erred, she says, when, after

consolidating the cases for sentencing, it (1) refused to engage in the grouping

analysis required by Chapter Three, Part D of the Sentencing Guidelines; and (2)

used the first sentence it imposed to increase her criminal history category.

       A district court commits procedural error when it improperly calculates the

Guidelines range. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169

L. Ed. 2d 445 (2007). We review the court’s calculation, including whether the

court correctly grouped the offenses of conviction, de novo. United States v.

Williams, 340 F.3d 1231, 1244 (11th Cir. 2003). If we determine that the district

court misapplied the Guidelines, remand is appropriate unless the error was

harmless. United States v. Barner, 572 F.3d 1239, 1247–48 (11th Cir. 2009). An

       1
          Wilson entered into a plea agreement on November 21, 2012, calling for a guilty plea
to Count One of the indictment charging her with violating § 922(g)(1) on September 19, 2012.
The parties apparently cancelled the plea agreement, for on December 9, 2013, she pleaded
guilty to both Counts One and Two of the indictment.
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error is harmless if the court would have imposed the same sentence without the

error. Id. at 1248.

      The Sentencing Guidelines set forth a procedure for determining the offense

level when a defendant is charged with multiple counts in the grouping rules of

Chapter Three. United States Sentencing Commission, Guidelines Manual, Ch.3,

Pt.D, intr. comment. (Nov. 1, 2012). “These rules apply to multiple counts of

conviction . . . contained in different indictments or informations for which

sentences are to be imposed at the same time or in a consolidated proceeding.” Id.;

see also U.S.S.G. § 3D1.1, comment. (n.1). As described in U.S.S.G. § 3D1.1(a),

when a defendant has been convicted of more than one count, the court (1) groups

the counts into “Groups of Closely Related Counts (‘Groups’)” by applying

§ 3D1.2; (2) determines the offense level applicable to each Group by applying

§ 3D1.3; and (3) applies § 3D1.4 to determine the combined offense level

applicable to all Groups. Counts of conviction under 18 U.S.C. § 1028A are

specifically excluded from this grouping procedure. U.S.S.G. § 3D1.1(b)(2). That

statute requires a two-year term of imprisonment that must run consecutively to

any other term of imprisonment. See 18 U.S.C. § 1028A(a)–(b).

      Section 3D1.4 provides a procedure for determining the combined offense

level by counting the Group with the highest offense level as one unit and

incrementally increasing the offense level based on the other Groups. This section


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also directs: “Disregard any Group that is 9 or more levels less serious than the

Group with the highest offense level.” U.S.S.G. § 3D1.4(c).

      Finally, § 3D1.5 directs courts to use the resulting combined offense level to

determine the “total punishment” under Chapter Five of the Guidelines. U.S.S.G.

§ 3D1.5, comment.; see also U.S.S.G. § 5G1.2, comment. (n.1). The combined

offense level is subject to adjustments from Chapter Three, Part E (Acceptance of

Responsibility) and Chapter Four, Part B. U.S.S.G. § 3D1.5, comment.; see also

U.S.S.G. Ch.3, Pt.D, intr. comment. (“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.”).

      While we have not been called upon explicitly to decide whether offenses

charged in different indictments, but considered at the same sentencing hearing,

must be grouped together under Chapter Three, Part D of the Guidelines, we have

cited with favor those cases where counts were divided into multiple Groups and

§ 3D1.4 was then used to reach a combined adjusted offense level. See United

States v. Sarras, 575 F.3d 1191, 1206–08 (11th Cir. 2009) (explaining that four

counts were not grouped together under § 3D1.2, and so the presentence

investigation report applied the unit calculation prescribed in § 3D1.4); United

States v. Walker, 490 F.3d 1282, 1288 n.4 (11th Cir. 2007) (stating that only the

Group with the highest offense level was used to calculate the base offense level).


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       The Sentencing Guidelines also require a district court to determine a

defendant’s criminal history points and resulting criminal history category by

tallying, among other things, his or her prior sentences. See U.S.S.G. § 4A1.1.

The term “prior sentence” is defined as “any sentence previously imposed upon

adjudication of guilt . . . for conduct not part of the instant offense.” U.S.S.G. §

4A1.2(a)(1). The commentary clarifies that this includes “sentence[s] imposed

prior to sentencing on the instant offense[.]” U.S.S.G. § 4A1.2, comment. (n.1).

       We find that the District Court erred by failing to correctly apply the

pertinent grouping rules and criminal history rules contained in the Guidelines.

The plain language of the Guidelines commentary directs that the grouping rules

“apply to multiple counts of conviction . . . contained in different indictments or

informations for which sentences are to be imposed at the same time or in a

consolidated proceeding.” U.S.S.G. Ch.3, Pt.D, intr. comment. (emphasis added).

Although the counts for which Wilson was sentenced were contained in different

indictments, the sentences on those counts were deliberately imposed at the same

time. Thus, the court should have applied the grouping rules. If the court had done

so, Wilson’s applicable combined offense level would have been 34, instead of

36.2


       2
          The statutory sentencing provision for Count Three, wire fraud, provided the highest
maximum sentence, 20 years, of any of the counts of conviction. The Guidelines range for that
offense at a total offense level (and a criminal history category of III) is 235 to 240 months.
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      The District Court also erred by failing to correctly apply the criminal

history rules in this case. If the court had correctly considered the cases together, it

could not have increased Wilson’s criminal history category because the sentence

imposed first would not have been a sentence imposed “prior to” the instant

sentencing proceeding. See U.S.S.G. § 4A1.2, comment. (n.1). Therefore, the

conviction for which the first sentence was imposed should not have been treated

as a prior conviction in calculating Wilson’s criminal history category.

      Finally, the foregoing error was not harmless. Absent the error, the

applicable Guidelines range would have been 188 to 235 months’ imprisonment,

with an additional, mandatory 24 months for the identity theft conviction. See

U.S.S.G. Ch.5, Pt.A; 18 U.S.C. § 1028A. Instead, the court sentenced Wilson to

252 months’ total imprisonment. There is nothing in the record indicating that the

court would have imposed the same sentence without the error. Where it is unclear

whether the court would have imposed the same sentence but for the error, the

error is not harmless. Barner, 572 F.3d at 1248. We therefore vacate Wilson’s

sentences and remand the case for resentencing.

      VACATED and REMANDED.




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