                           PUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                  v.                             No. 00-4803
JERMAINE LAVONNE CHASE,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
          for the Western District of Virginia, at Roanoke.
               Jackson L. Kiser, Senior District Judge.
                            (CR-94-106)

                        Argued: May 9, 2002

                       Decided: July 10, 2002

    Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.



Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Michael and Judge Motz joined.


                             COUNSEL

ARGUED: Terry N. Grimes, TERRY N. GRIMES, ESQ., P.C., Roa-
noke, Virginia, for Appellant. Ray B. Fitzgerald, Jr., Assistant United
States Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF:
John L. Brownlee, United States Attorney, Charlottesville, Virginia,
for Appellee.
2                      UNITED STATES v. CHASE
                              OPINION

WILKINS, Circuit Judge:

   Jermaine Lavonne Chase appeals his sentence, contending that it is
unlawful under Apprendi v. New Jersey, 530 U.S. 466 (2000).
Although we conclude that his sentence for conspiracy exceeds the
applicable statutory maximum, we nevertheless affirm on the basis
that this error was harmless.

                                   I.

   This case is now before us for the third time. In 1994, Chase was
convicted of conspiracy to possess with the intent to distribute
cocaine and cocaine base, see 21 U.S.C.A. § 846 (West 1999); pos-
session of a firearm by a convicted felon, see 18 U.S.C.A. § 922(g)
(West 2000); possession of cocaine base with the intent to distribute,
see 21 U.S.C.A. § 841 (West 1999 & Supp. 2002); possession of
cocaine with the intent to distribute, see id.; and two counts of using
a firearm in connection with a drug trafficking offense, see 18
U.S.C.A. § 924(c) (West 2000). The district court sentenced Chase to
a total of 592 months imprisonment.

   On appeal, we determined that Chase’s two convictions for use of
a firearm in connection with a drug trafficking offense were invalid
under Bailey v. United States, 516 U.S. 137 (1995). See United States
v. Chase, 127 F.3d 1100, 1997 WL 657132, at *3-*4 (4th Cir. 1997)
(per curiam) (unpublished table decision) (Chase I). As a result of this
decision, the case was remanded to the district court and Chase was
resentenced to a total of 360 months. This sentence consisted of four
concurrent terms: 360 months for conspiracy, 120 months for the
§ 922(g) offense, and 240 months for each of the substantive drug
trafficking offenses.

   Chase appealed again, and we again granted relief. Our decision
was prompted by uncertainty about whether the district court recog-
nized its authority under appropriate circumstances to grant a down-
ward departure based on post-offense rehabilitation. We remanded to
allow the court to consider this issue. See United States v. Chase, 202
                         UNITED STATES v. CHASE                           3
F.3d 260, 1999 WL 1054140, at *2 (4th Cir. 1999) (per curiam)
(unpublished table decision) (Chase II).

   On remand, the district court conducted a third sentencing hearing.
 At this hearing, Chase contended that his 360-month sentence for
conspiracy was unlawful under Apprendi (which was decided after
Chase II). The district court ruled that it could not consider this claim
or others raised by Chase because it was restricted by our mandate to
consideration of the rehabilitation issue. The court then rejected
Chase’s request for a downward departure and reinstated the prior
sentence of 360 months.

                                    II.

   On appeal, Chase reiterates his Apprendi-based challenges to his
sentence. As noted above, the district court declined to consider these
challenges because they were not encompassed within our mandate in
Chase II. See United States v. Bell, 5 F.3d 64, 66-67 (4th Cir. 1993)
(discussing the mandate rule and its exceptions). We need not decide
whether this was correct, because, even if the court erred in applying
the mandate rule (and we do not suggest that it did), this error was
harmless.1

   Under Apprendi and United States v. Promise, 255 F.3d 150 (4th
Cir. 2001) (en banc), cert. denied, 70 U.S.L.W. 3724 (U.S. May 28,
2002) (No. 01-6398), the maximum sentence available for Chase’s
conspiracy conviction was 240 months. See Promise, 255 F.3d at 156-
57. Consequently, the district court erred in imposing a 360-month
term for that offense.2 This error was harmless, however, if it did not
result in a sentence greater than that which would otherwise have
been imposed. See United States v. Stokes, 261 F.3d 496, 499 (4th
Cir. 2001), cert. denied, 122 S. Ct. 1546 (2002). This would be the
case if the district court would have been required to impose consecu-
tive terms of imprisonment in order to achieve the 360-month sen-
  1
    Chase has also raised an unrelated claim concerning the calculation
of his criminal history category. We affirm the ruling of the district court
that consideration of this issue is barred by the mandate rule.
  2
    It should be noted that Promise was decided after Chase’s most recent
sentencing hearing.
4                       UNITED STATES v. CHASE
tence that the court deemed to be an appropriate level of punishment
under the sentencing guidelines. See United States v. Angle, 254 F.3d
514, 518-19 (4th Cir.) (en banc), cert. denied, 122 S. Ct. 309 (2001).

   To determine whether consecutive terms were required here, we
consider three issues that the parties briefed at our direction:
(i) whether Chase’s offenses were grouped pursuant to U.S. Sentenc-
ing Guidelines Manual §§ 3D1.1, 3D1.2 (1994),3 (ii) whether such
grouping was required by the guidelines, and (iii) whether it is per-
missible to "de-group" offenses in order to impose consecutive sen-
tences pursuant to U.S.S.G. § 5G1.2.

   It is apparently undisputed that Chase’s offenses were grouped and
that such grouping was required. We now hold that such grouping
does not preclude the imposition of consecutive sentences under
§ 5G1.2. This conclusion is supported by the language and structure
of the guidelines, by contemporary and traditional practice, and by the
policies underlying the guidelines.

           A. Language and Structure of the Guidelines

   The guidelines establish a process for selecting an appropriate sen-
tence based on a defendant’s criminal history and the relevant conduct
associated with the offense of conviction and the ensuing investiga-
tion and prosecution. See U.S.S.G. § 1B1.1. The rules regarding
grouping and consecutive sentences apply in different phases of this
process.

  The grouping rules apply to the calculation of an "offense level"
based on relevant conduct.4 These rules
    3
     Unless otherwise indicated, all of our guideline citations are to the
1994 Guidelines Manual.
   4
     In assigning an offense level, the district court begins with a base
offense level and then considers adjustments based on factors specified
in the guidelines (such as possession of a weapon or the defendant’s role
in the offense) and departures, some grounds for which are set forth in
Chapter 5, Part K.
                       UNITED STATES v. CHASE                         5
    operate to accomplish two key objectives of the Sentencing
    Reform Act: (1) the avoidance of double punishment for
    what is in essence the same criminal conduct (e.g., a con-
    spiracy offense and a substantive offense that was the sole
    object of the conspiracy . . . ), and (2) an incremental
    increase in punishment for each offense of conviction that
    embodies significant additional criminal conduct.

United States v. Watford, 894 F.2d 665, 669 (4th Cir. 1990). The rules
achieve these goals by consolidating related offenses into groups and
assigning a combined offense level based on the components of each
group, the number of groups, and the relative offense levels assigned
to each group. See U.S.S.G. §§ 3D1.1-3D1.4.

   The choice between concurrent and consecutive sentences arises
later, when the court imposes a specific sentence. The court must
select an appropriate term of imprisonment by consulting the sentenc-
ing table set forth in Chapter 5, Part A, which prescribes a guideline
range based on the defendant’s final offense level and criminal history
category. The court must then refer to the "stacking" rule, § 5G1.2,
if (i) the defendant has been convicted of multiple offenses and
(ii) the "total punishment"—i.e., the point within the guideline range
designated by the district court as the appropriate term of
imprisonment—exceeds the statutory maximum for the offense carry-
ing the greatest penalty. In that event, the court must impose consecu-
tive sentences "to produce a combined sentence equal to the total
punishment." U.S.S.G. § 5G1.2(d). Otherwise, § 5G1.2 mandates con-
current sentences in the absence of statutory requirements to the con-
trary.

   As this discussion illustrates, grouping and stacking are separate
concepts relevant in different stages of the sentencing process. More-
over, they are not mutually exclusive; that is, as a purely logical mat-
ter, there is no obstacle to stacking a defendant’s sentences for
grouped offenses. Neither does any language in the grouping rules or
§ 5G1.2 prohibit consecutive sentences for grouped offenses. Indeed,
we consider it significant that § 5G1.2 makes no distinction between
grouped offenses and offenses in separate groups.

  The only language that even suggests a prohibition against stacked
sentences for grouped offenses appears in the introduction to the
6                       UNITED STATES v. CHASE
grouping rules, which states that "counts that are grouped together are
treated as constituting a single offense for purposes of the guidelines."
U.S.S.G. ch. 3, pt. D, intro. comment. It is clear from the context,
however, that this language does not control the choice between con-
current and consecutive sentences. The grouping rules apply only to
offense-level computations, not to the other components of the sen-
tencing process. This is shown with particular clarity in the illustra-
tions following U.S.S.G. § 3D1.5, which discuss the proper
application of the grouping rules without any reference to total pun-
ishment. Moreover, the "single offense" contemplated in the commen-
tary is not any individual count of conviction, but rather a
hypothetical aggregate offense embracing all relevant conduct. In this
respect, the treatment of grouped convictions as a single offense cor-
responds to the statutory treatment of multiple sentences as "a single,
aggregate term of imprisonment." 18 U.S.C.A. § 3584(c) (West
2000). Thus, we do not construe the "single offense" language of this
commentary to preclude stacking of grouped offenses.

   Our understanding of the relevant guidelines is reinforced by mate-
rial added to the Guidelines Manual after Chase’s first sentencing
hearing. Specifically, the commentary following U.S.S.G. § 2P1.2
expressly provides for consecutive sentences for grouped offenses.
See U.S. Sentencing Guidelines Manual § 2P1.2, comment. (n.2)
(2001). While this does not conclusively resolve the issue, it tends to
confirm that grouping and stacking are not inherently incompatible.

            B. Contemporary and Traditional Practice

   The practice of courts applying the guidelines is in accord with our
determination that it is permissible to impose consecutive sentences
for grouped offenses. Indeed, this court has already stated (arguably
in dicta) that "section 5G1.2, in conjunction with section 3D1.2,
requires that a sentence on a conspiracy count shall run concurrently
with the sentence on substantive counts that were included within the
conspiracy, except to the extent necessary to produce a sentence
within the appropriate sentencing guidelines range." Watford, 894
F.2d at 669 (emphasis added). In addition, numerous cases decided by
this court and other courts of appeals implicitly countenance consecu-
tive sentences for grouped offenses. See, e.g., United States v. Stew-
art, 256 F.3d 231, 257 (4th Cir.) (holding that imposition of sentences
                       UNITED STATES v. CHASE                        7
exceeding statutory maximum did not violate substantial rights
because district court was obliged to stack sentences for grouped
offenses to achieve same total punishment), cert. denied, 122 S. Ct.
633 (2001); see also United States v. Feola, 275 F.3d 216, 219 (2d
Cir. 2001) (per curiam) (explaining sentencing procedure for multiple
counts, including both grouping and stacking).

   This approach is consistent with pre-guidelines practice. Before the
guidelines were enacted, district courts enjoyed virtually "unbridled
discretion" to choose between concurrent and consecutive sentences,
even for closely related offenses. Watford, 894 F.2d at 667; cf.
Albernaz v. United States, 450 U.S. 333 (1981) (upholding consecu-
tive sentences for single conspiracy encompassing two objectives).

   The main limitation on district court discretion in the pre-
guidelines era was the doctrine of merger, which applied (and still
applies) to bar separate sentences in certain circumstances. See, e.g.,
United States v. Jones, 204 F.3d 541, 544 (4th Cir. 2000) (holding
that district court erred in imposing separate sentences for greater
offense and lesser included offense). Merger is primarily a function
of legislative intent; thus, when a defendant has been convicted of
multiple offenses, the sentencing court must determine whether Con-
gress intended to authorize separate punishments for those offenses.
See Albernaz, 450 U.S. at 336. If courts were required to impose con-
current sentences for all grouped offenses, then grouping would cur-
tail the sentencing authority of district courts to the same extent as
merger, regardless of any congressional purpose to authorize cumula-
tive punishments. Here, for example, the total maximum penalty for
Chase’s conspiracy and substantive drug trafficking offenses would
be 240 months—the same as the maximum applicable to each offense
—despite the well-settled rule that substantive crimes committed in
the execution of a conspiracy may be punished separately from the
conspiracy itself, see Pinkerton v. United States, 328 U.S. 640, 643
(1946). This possibility of obstructing congressional purposes by
requiring concurrent sentences for grouped offenses reinforces our
conclusion that grouping does not preclude stacking.

              C. Policies Underlying the Guidelines

   Finally, we consider whether a rule requiring concurrent sentences
for grouped offenses would be consistent with the purposes underly-
ing the guidelines. We believe it would not.
8                      UNITED STATES v. CHASE
   Congress enacted the Sentencing Reform Act, which led to the
enactment of the guidelines, in part to create "a system that imposes
appropriately different sentences for criminal conduct of differing
severity." U.S.S.G. ch. 1, pt. A(3). In accord with this goal, the
drafters of the guidelines adopted grouping rules "to provide incre-
mental punishment for significant additional criminal conduct."
U.S.S.G. ch. 3, pt. D, intro. comment. A rule prohibiting stacked sen-
tences for grouped offenses would interfere with this effort by limit-
ing the range of punishments available to the sentencing court.

   Furthermore, this rule would have a predictable and entirely unde-
sirable bias in favor of more culpable offenders. Under the guidelines,
a defendant’s sentencing range is increased if, inter alia, he played a
leadership role in multi-defendant crimes, see U.S.S.G. § 3B1.1; he
obstructed justice during the investigation of his offenses, see
U.S.S.G. § 3C1.1; or he has an extensive criminal record, see gener-
ally U.S.S.G. ch. 4, pt. A. As the sentencing range increases in sever-
ity, it becomes more likely that the district court will need to resort
to stacking in order to achieve an appropriate sentence within the
guideline range. If stacking for grouped offenses were prohibited,
then two defendants guilty of multiple crimes might receive roughly
the same sentence even though one was subject to a higher guideline
range as a result of more harmful conduct or a more egregious crimi-
nal history.

   A rule that favors more culpable criminals over their less culpable
confederates does not promote justice. While countervailing consider-
ations might justify adoption of such a rule, we are not aware of any
considerations that would warrant a prohibition against stacking sen-
tences for grouped offenses. Moreover, as discussed earlier, there is
no evidence that the guidelines contain such a prohibition. For all of
these reasons, we hold that the district court could have sentenced
Chase to consecutive terms totaling 360 months. In fact, § 5G1.2
would have required consecutive sentences if necessary to achieve the
"total punishment." See Angle, 254 F.3d at 518 ("Had the district
court been aware when it sentenced [the defendant] that the maximum
penalty for his drug trafficking conviction was 20 years, § 5G1.2(d)
would have obligated it to achieve the guideline sentence of 292
months imprisonment by imposing a term of 240 months or less on
each count of conviction and ordering those terms to be served con-
                      UNITED STATES v. CHASE                      9
secutively to achieve the total punishment mandated by the guide-
lines."). Accordingly, the imposition of a single 360-month term for
conspiracy, although erroneous, was harmless.

                                III.

  For the foregoing reasons, we affirm the judgment of the district
court.

                                                        AFFIRMED
