                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-1882
                                    ___________

United States of America,            *
                                     *
           Plaintiff-Appellee,       *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * District of South Dakota.
Barbara Lynn Lewis,                  *
                                     *      (PUBLISHED)
           Defendant-Appellant.      *
                                ___________

                              Submitted: November 16, 1999

                                   Filed: January 31, 2000
                                    ___________

Before WOLLMAN, Chief Judge, LAY and BOWMAN, Circuit Judges.
                             ___________

PER CURIAM.

       An indictment was filed against Barbara Lynn Lewis (“Lewis”) on October 7,
1998, charging her with two counts of harboring an illegal alien and one count of
conspiracy to do the same. Lewis entered a guilty plea on all three counts. The district
court sentenced Lewis to 120 months, comprised of consecutive sentences of forty-six
months, thirty-seven months, and thirty-seven months.1 On appeal, Lewis argues that

      1
        The district court applied the 1995 U.S. Sentencing Guidelines Manual pursuant
to the probation officer’s recommendation that the more current version would create
an ex post facto problem. Neither party challenges this application.
the sentencing court erred in four ways: first, by imposing consecutive rather than
concurrent sentences; second, by refusing a three-point reduction for the crimes being
“other than for profit”; third, by upwardly adjusting for restraint of victim; and fourth,
by double-counting conduct when calculating the sentence. For the following reasons,
we vacate the sentence and remand for resentencing.

       Factual findings made at sentencing are reviewed for clear error. See United
States v. Alaniz, 148 F.3d 929, 937 (8th Cir.), cert. denied, 119 S. Ct. 604 (1998);
United States v. Kime, 99 F.3d 870, 885 (8th Cir. 1996); United States v. KRCIC, 186
F.3d 178, 181 (2d Cir. 1999). In its detailed March 23, 1999, Sentencing
Memorandum and Order, the district court made findings noting the egregious facts in
this case and providing its interpretation of the United States Sentencing Guidelines
Manual (“U.S.S.G.” or “Guidelines”), specifically its denial of a three-point “other than
for profit” reduction pursuant to § 2L1.1(b)(1) and its imposition of an upward
adjustment for restraint of victim under § 3A1.3. This court has carefully reviewed the
record and the district court’s findings and we find no clear error in either of these
determinations.

       Lewis’ challenge to imposition of consecutive sentences, however, implicates
the application of the Guidelines and we review such application de novo. See United
States v. O’Kane, 155 F.3d 969, 971 (8th Cir. 1998). The Guidelines detail a
methodology a court must follow when sentencing a defendant. See U.S.S.G. § 1B1.1
(1995). The first step in the process is to determine the applicable offense guideline
for the convictions. Step two is to determine the base offense level for each count
according to that applicable guideline. Step three is to apply adjustments to each base
offense level and calculate adjusted base offense levels. After steps one through three
have been applied to each count of conviction, a sentencing court turns to step four, §
3D, which governs the process for multiple count cases.




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       Critical to this appeal is U.S.S.G. § 3D which outlines a process for determining
a single offense level to encompass multiple counts. Section 3D1.1(a) provides that
“[w]hen a defendant is convicted of more than one count, the court shall: (1) Group
the counts resulting in conviction into distinct Groups of Closely Related Counts
(“Groups”) by applying the rules specified in § 3D1.2.” Id. at § 3D1.1(a)(1) (emphasis
added). Section 3D1.2 states that “[a]ll counts involving substantially the same harm
shall be grouped together into a single Group.” Id. at § 3D1.2 (emphasis added).
Offenses involve “substantially the same harm” if they “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.” Id. at § 3D1.2(b).

       We find the three counts in this case involve “substantially the same harm”
because all three involve the same victim, Robert Lee Warner (“Warner”), substantially
the same time frame, 1994 through 1997, and the same conduct, the concealment and
harboring of Warner in South Dakota. Consequently, pursuant to the Guidelines the
three counts should have been grouped.

       While the district court provided a detailed explanation of its findings and
conclusions in its Sentencing Memorandum and Order, it did not address the issue of
grouping. It is clear, however, that the district court did not group and instead treated
each offense discretely. This failure to group the offenses was a fundamental error by
the district court, consequently, Lewis’ sentence in this case must be set aside and the
case remanded for resentencing.

       Due to this initial error and because Lewis’ remaining claims relate to departures
that occur post-grouping when properly calculating a sentence, we do not reach the
remaining claims.

      The government argues that Lewis will receive the same ten year sentence
regardless of grouping and thus, the sentence should be affirmed. Despite the

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possibility that the district court may impose the same sentence after recalculation, the
Guidelines prescribe the proper process for sentencing and we must adhere to that
process and follow the directives of both Congress and the Sentencing Commission.

       Furthermore, there is the possibility that the sentence may change upon
recalculation, in part, because a number of the challenges raised in this appeal may be
resolved by that recalculation. For example, Lewis argues that the district court
improperly used the same conduct to both upwardly adjust the sentence under § 3A1.2
and to depart under §§ 5K2.4 and 5K2.8. While we express no opinion regarding these
challenges, any double-counting issue may not survive resentencing. Consequently, it
would be inefficient for this court to determine what alternative sentences might result
following proper grouping.

       While it is unclear what specific effect the failure to group may have had on the
sentence imposed in this case, it is clear that proper grouping could affect Lewis’
sentence. Under the circumstances, we vacate the sentence and direct the district court
to calculate the sentence anew, consistent with this decision and proper grouping under
the Guidelines.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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