                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-4182
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

SUSAN M. VUCKO,
                                           Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
           No. 03 CR 261—Ronald A. Guzmán, Judge.
                         ____________
    ARGUED JUNE 7, 2006—DECIDED JANUARY 12, 2007
                     ____________


 Before BAUER, RIPPLE, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. For many years, Susan Vucko
was employed by the Northwest Building Materials and
Supply Company, where she both worked at the retail
sales counter and performed various bookkeeping tasks. In
the mid-1990s Vucko began to help herself to Northwest’s
money, eventually pilfering more than $700,000. Mean-
while, Vucko also defrauded the United States by falsely
reporting her income on her tax returns for five years.
After she was caught, she pleaded guilty without a plea
agreement to wire fraud in violation of 18 U.S.C. § 1343
and to making a false statement in a tax return in viola-
tion of 26 U.S.C. § 7206(1). The court imposed concur-
rent sentences of two years’ imprisonment for each offense
2                                               No. 05-4182

and three years of supervised release and ordered restitu-
tion in the amount of $720,662. Vucko now appeals from
her sentence, claiming that the district court erred by
failing to group the charges under § 3D1.2(c) or (d) of the
U.S. Sentencing Guidelines. Although her argument
might have some force if one were to view those provi-
sions of the Guidelines in isolation, we conclude that the
district court properly found that grouping was inappro-
priate. We therefore affirm the sentence.


                             I
  There is little that we need to add to the facts underlying
Vucko’s convictions. At Northwest, Vucko was responsible
for reconciling credit card sales with merchant banks that
processed credit transactions for the company. In addition,
as part of her duties at the retail counter, she processed
cash and credit card transactions. In 1992 or 1993, North-
west gave her the additional job of closing out the retail
sales counter at the end of each business day. This in-
volved balancing the cash drawer, ensuring that the
cash register and credit card swipe machine were prop-
erly closed, and recording gross sales. Vucko also had to
prepare weekly and monthly reports totaling all retail
sales.
  Beginning around February 1995, Vucko succumbed to
the temptation to help herself to some of the money she
was handling. She started to use Northwest’s credit
card swipe machine to process unauthorized credits or
refunds for banking and credit card accounts belonging to
her or to members of her family. Normally she did this
at the end of the business day, before closing out the
cash register and credit card machine. These “refunds”
were typically between $2,000 and $9,000. Because no
one was around to supervise Vucko’s work at closing
time, she was able to conceal her actions when she “zeroed
No. 05-4182                                               3

out” the two machines after processing her fraudulent
transactions. From 1995 to 1999, when she was caught,
she accumulated at least $720,662 in unauthorized credits,
which she distributed among five accounts held either
in her name or the name of her husband or one of her sons.
  Vucko took a number of steps to keep Northwest from
discovering her scheme. First, she destroyed the tapes
from the cash register and credit card machines at the
end of each business day. Second, she falsified various
sales reports by under-reporting the amount of actual
credit card purchases at Northwest. Third, she destroyed
the monthly statements that Northwest received from
its merchant banks.
  At the same time, Vucko was concealing the true amount
of her annual income on the federal tax returns she
prepared for herself and her husband each year from 1995
through 1999. She under-reported her gross income by
at least $111,802 in 1995; by $129,298 in 1996; by
$272,162 in 1997; by $156,601 in 1998; and by $31,017 in
1999. In the aggregate, the underreported income was
almost $701,000, just short of the amount Vucko embez-
zled. She filed her final fraudulent return, covering tax
year 1999, in April 2000, nearly a year after her thefts had
been discovered.


                            II
  At sentencing, the primary issue that Vucko raised was
whether her wire fraud and tax fraud counts had to be
grouped under the provisions of § 3D1.2(c) or (d). Vucko
argued before the district court that the wire fraud
guideline, then § 2F1.1, relied on the same offense charac-
teristic as the tax fraud guideline, § 2T4.1—namely, the
amount of loss. She also argued that the two charges
essentially reflected the loss of the same money, even
4                                                No. 05-4182

though the victims were different. The district court
rejected this position, with the following explanation:
    I’m satisfied that this is not double counting in any
    meaningful sense. I think we have two separate and
    distinct acts, either one of which could have been
    done without the other. Tax evasion can be done
    without fraud and fraud can be done without tax
    evasion. It takes a specific independent thought
    process to do each. They’re different in kind and
    they’re different in time and they’re different in
    execution, so I’ll deny the objection to and the request
    to modify on that basis.
After hearing argument on the factors identified in 18
U.S.C. § 3553(a), the court imposed its sentence.


                             III
   On appeal, Vucko continues to urge that the district
court should have grouped her two offenses for sentenc-
ing purposes. In order to decide whether grouping was
required, we first must settle on the applicable guideline
for each offense. For this purpose, it is undisputed that
the 1998 version of the Guidelines Manual applies. The
first offense to which Vucko pleaded guilty was wire fraud.
In the 1998 manual, Guideline § 2F1.1 provides the offense
level for fraud, starting with a base offense level of six. See
§ 2F1.1(a). (Amendment 617 to the Guidelines, effective
November 1, 2001, deleted § 2F1.1 and moved a great
number of economic offenses, including wire fraud, to
§ 2B1.1; this change has no effect on Vucko’s case.) There
is a laundry list of specific offense characteristics in the
fraud guideline, starting with progressive increases for
the amount of monetary loss if that loss is over $2,000. See
§ 2F1.1(b)(1). Other relevant characteristics include the
level of planning, the number of victims, the use of mass
No. 05-4182                                                  5

marketing to commit the fraud, a misrepresentation that
one was acting on behalf of a charitable or similar organi-
zation, the violation of a judicial decree, the relocation of
the fraud to another jurisdiction to evade law enforcement,
the commission of a substantial part of the fraudulent
scheme from outside the United States, the use of sophisti-
cated means, the conscious or reckless risk of serious
bodily injury, the possession of a dangerous weapon, and
acts that jeopardize the soundness of a financial institu-
tion or affect it while deriving more than $1 million in
gross receipts from the scheme. See § 2F1.1(b)(2)-(7). This
is a lengthy list, but it is noteworthy for two reasons. First,
the failure to report income from the fraud to the Internal
Revenue Service (IRS) is not a specific offense characteris-
tic under this guideline, though it is foreseeable that
in many cases of fraud the perpetrator also will fail to
report her income to the federal government on her tax
return. Second, each of these offense characteristics is
defined both in the text of the guideline and in the Ap-
plication Notes following the guideline.
  The other offense to which Vucko pleaded guilty was her
failure to report her ill-gotten gains on her tax returns.
Guideline § 2T1.1 applies to a number of tax offenses,
including the filing of a false or fraudulent tax return.
Section 2T1.1(a) offers two options for computing the base
offense level: either the level from § 2T4.1 (the tax table)
corresponding to the tax loss, or level 6, if there is no tax
loss. Section 2T1.1(b), in contrast to the fraud guideline,
identifies only two specific offense characteristics, which
are brief enough to set out in full:
    (1) If the defendant failed to report or to correctly
        identify the source of income exceeding $10,000 in
        any year from criminal activity, increase by 2
        levels. If the resulting offense level is less than
        level 12, increase to level 12.
6                                             No. 05-4182

    (2) If the offense involved sophisticated concealment,
        increase by 2 levels.
The first of those is the one that Vucko believes requires
grouping of her two offenses.
  It is true, as Vucko argues, that the criminal conduct
covered by the wire fraud was the same as the conduct
that gave her enough illegally derived income to trigger
§ 2T1.1(b)(1). Before jumping to Vucko’s desired conclu-
sion that grouping is required under § 3D1.2(c), however,
we must ensure that this was the result the Sentenc-
ing Commission intended and that this is the proper way
to read the relevant guidelines. The first step in this
process is to see what the Commission had to say. The
Introductory Commentary to Part T of the Guidelines
(Offenses Involving Taxation) reads as follows:
      The criminal tax laws are designed to protect the
    public interest in preserving the integrity of the na-
    tion’s tax system. Criminal tax prosecutions serve to
    punish the violator and promote respect for the tax
    laws. Because of the limited number of criminal tax
    prosecutions relative to the estimated incidence of
    such violations, deterring others from violating the
    tax laws is a primary consideration underlying these
    guidelines. Recognition that the sentence for a crimi-
    nal tax case will be commensurate with the gravity
    of the offense should act as a deterrent to would-be
    violators.
The commentary also elaborates on the specific offense
characteristic in § 2T1.1(b)(1). Application Note 3 defines
the term “criminal activity” in § 2T1.1 to mean “any
conduct constituting a criminal offense under federal,
state, local, or foreign law.” The Background Note ex-
plains further that:
    [f]ailure to report criminally derived income is in-
    cluded as a factor for deterrence purposes. Criminally
No. 05-4182                                              7

   derived income is generally difficult to establish, so
   that the tax loss in such cases will tend to be sub-
   stantially understated. An enhancement for offenders
   who violate the tax laws as part of a pattern of crimi-
   nal activity from which they derive a substantial
   portion of their income also serves to implement the
   mandate of 28 U.S.C. § 994(i)(2).
The latter statute is the one that spells out the duties of
the Sentencing Commission. Subpart (i)(2) directs the
Commission to “assure that the guidelines specify a
sentence to a substantial term of imprisonment for catego-
ries of defendants in which the defendant . . . committed
the offense as part of a pattern of criminal conduct from
which the defendant derived a substantial portion of the
defendant’s income.”
  The harms caused by tax offenses and the need for
deterrence that the Commission emphasized both inform
the proper application of the grouping guideline. Section
3D1.2 provides, in pertinent part:
   All counts involving substantially the same harm shall
   be grouped together into a single Group. Counts
   involve substantially the same harm within the
   meaning of this rule: . . .
       (c) When one of the counts embodies conduct
           that is treated as a specific offense charac-
           teristic in, or other adjustment to, the guide-
           line applicable to another of the counts.
       (d) When the offense level is determined largely
           on the basis of the total amount of harm or
           loss, the quantity of a substance involved, or
           some other measure of aggregate harm, or if
           the offense behavior is ongoing or continu-
           ous in nature and the offense guideline is
           written to cover such behavior.
8                                              No. 05-4182

  According to the Introductory Commentary for this part
of the Guidelines Manual (entitled “Multiple Counts”),
“[t]he rules in this Part seek to provide incremental
punishment for significant additional criminal conduct.”
(Emphasis added.) Application Note 5 to § 3D1.2 advises
that “when conduct that represents a separate count, e.g.,
bodily injury or obstruction of justice, is also a specific
offense characteristic in or other adjustment to another
count, the count represented by that conduct is to be
grouped with the count to which it constitutes an aggra-
vating factor.” This is to prevent “double counting”—
exactly the concern that the district court recognized was
implicated. The Application Note also indicates, however,
that “this rule applies only if the offenses are closely
related.” It gives examples of what kind of offenses would
satisfy that criterion. For instance, grouping is not
proper for a bank robbery committed on one occasion and
an assault on a separate occasion, because the harm from
the assault is not a specific offense characteristic under
the bank robbery guideline and represents a different
harm. In contrast, the use of a firearm in a bank robbery
and unlawful possession of that firearm should be grouped.
See § 2B3.1(b)(2) (possession of a firearm is a specific
offense characteristic for robbery). Obstruction of justice,
which is handled as a separate adjustment under § 3C1.1
and thus is not technically a “specific offense characteris-
tic,” nevertheless is covered by § 3D1.2(c) for grouping
purposes.
  The Background Note acknowledges that this is a
difficult area. It states, however, that offenses involving
different victims (or societal harms) “are grouped together
only as provided in subsection (c) or (d).” Conceding that
it is not always “clear cut” whether or not to group, the
Note concludes with an appeal to broad principles: “In
interpreting this Part and resolving ambiguities, the
No. 05-4182                                               9

court should look to the underlying policy of this Part as
stated in the Introductory Commentary.”
  Vucko is not the first person who initially committed
fraud and then failed to report her income from that fraud.
We are therefore not the first court to face the question
whether these offenses should be grouped under
§ 3D1.2(c). The issue is difficult enough that it has
caused a split among our sister circuits.
  The Fifth Circuit encountered this problem in United
States v. Haltom, 113 F.3d 43 (5th Cir. 1997). Haltom
pleaded guilty to one count of mail fraud and four counts
of tax evasion. The district court found that grouping
was inappropriate, but the court of appeals reversed.
Noting that the Introductory Commentary explained that
grouping provides for “incremental punishment for sig-
nificant additional criminal conduct,” the court thought
that the key word there was “significant.” “Sometimes,” it
commented, “an additional count does not represent
significant additional criminal conduct, and does not lead
to an increased sentence.” Id. at 45. Turning specifically
to § 3D1.2(c), the court reasoned, “Convictions on multiple
counts do not result in a sentence enhancement unless
they represent additional conduct that is not otherwise
accounted for by the guidelines.” Id. at 45-46 (emphasis in
original). The defendant’s offense level under the tax
guideline was increased by two, because the source of the
unreported income was criminal activity. The court
described as “indisputable” the fact that the mail fraud
count covered conduct that was being treated as a specific
offense characteristic for the tax count. Id. at 46. Immedi-
ately after so concluding, however, the court went on to
concede:
    As a matter of common parlance, Haltom’s mail fraud
    and tax evasion convictions cannot readily be said
    to have caused “substantially the same harm.” See
10                                              No. 05-4182

     U.S.S.G. § 3D1.2. The mail fraud damaged the private
     financial interests of Haltom’s corporate clients; the
     tax offenses harmed the government. Absent a con-
     trary directive in the guidelines themselves, we
     might have considered these harms quite distinct and
     concluded that Haltom’s offenses were not groupable.
113 F.3d at 46. It nonetheless thought that grouping
was compelled by the guidelines.
  The First Circuit took a different approach in United
States v. Martin, 363 F.3d 25 (1st Cir. 2004). There the
defendant also pleaded guilty to fraud and tax evasion,
and the district court decided that grouping was required.
It computed an offense level of 20 for the fraud counts
and 18 for the tax evasion counts, the latter including
the two extra points for income derived from criminal
activity that exceeds $10,000. Following an analysis
similar to that in Haltom, it grouped based on § 3D1.2(c).
Reversing, the First Circuit noted that the Guidelines “do
not require that all of the conduct be ‘fully accounted for’;
rather, it is enough that conduct ‘embodied’ in the
second offense is ‘treated as an adjustment’ to the other
offense.” Id. at 41 (quoting United States v. Sedoma, 332
F.3d 20, 27 (1st Cir. 2003) (internal quotation marks
omitted) (quoting U.S.S.G. § 3D1.2(c))). As a practical
matter, the decision to group the tax and fraud offenses
meant that the final offense level was two notches lower
than it would have been without grouping, just as in
Vucko’s case. The First Circuit acknowledged that “[t]he
text of § 3D1.2(c), taken alone, appears to support group-
ing in this case.” Martin, 363 F.3d at 42. Nevertheless, the
court pointed out, the Guidelines must be interpreted
in light of the Commentary, which is “authoritative un-
less it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline.” Id. (quoting Stinson v. United States, 508 U.S.
36, 38 (1993)). Thus, “even when one count embodies
No. 05-4182                                             11

conduct treated as an adjustment to a second count, the
counts cannot be properly grouped under § 3D1.2(c) unless
they are ‘closely related.’” Martin, 363 F.3d at 42. The
First Circuit held that the fraud and tax evasion counts
are not “closely related” because they involve “different
victims,” cause “different harms,” and required “different
conduct.” Id. at 42-43.
  The court observed that if the two offenses were grouped,
“there would be no punishment consequences for the tax
evasion conduct.” Id. at 43. This was because the offense
level for the fraud was 20, and that for the tax evasion
was 18; with grouping, “the offense level for the group is
set, pursuant to § 3D1.3, at the highest AOL [adjusted
offense level] of the offenses in the group.” Id. at 41. In
contrast, if the two counts were not grouped, then § 3D1.4
would require the addition of two more levels for the two
counts. (This is because each count would be its own
group, and the Guidelines instruct that the group with the
highest offense level counts as one “unit”; an additional
unit is added for each group that is either equally serious
or from one to four levels less serious. See § 3D1.4(a). If
there are two units, as here, an additional two levels
must be added to the offense level.) Only by refusing to
group, the court said, could it achieve an “outcome [that]
is consistent with an important but simple proposition:
one who receives stolen money and fails to report that
income in a tax return is generally more culpable than
one who merely receives stolen money.” Id. at 43. Thus,
the court concluded, the decision not to group comports
both with the underlying purpose of § 2T1.1(b)(1), which
increases the offense level for failing to report criminal
proceeds in part because the tax losses tend to be under-
stated, and with 28 U.S.C. § 994(i)(2), which is the statu-
tory mandate “to punish with a term of imprisonment
those defendants who derive a substantial part of their
income from criminal activity.” 363 F.3d at 44.
12                                              No. 05-4182

  The Third and Tenth Circuits take the same approach as
the First. In United States v. Astorri, 923 F.2d 1052 (3d
Cir. 1991), the Third Circuit held under an earlier ver-
sion of the Guidelines that neither specific offense charac-
teristic applicable to tax offenses (failing to report income
exceeding $10,000 per year from criminal activity or
concealing criminal activity from which the defendant
derived a substantial portion of the income) “constitute[d]
conduct embodied in the fraud count.” Id. at 1056. It thus
concluded that grouping under § 3D1.2(c) was inappro-
priate. Similarly, in United States v. Peterson, 312 F.3d
1300, 1302-04 (10th Cir. 2002), the Tenth Circuit found
that the offenses were not closely related and “the specific
offense characteristic for failure to report criminally-
derived income is not sufficiently based here on conduct
embodied in the mail fraud count as to warrant grouping.”
See also Weinberger v. United States, 268 F.3d 346, 353-54
(6th Cir. 2001) (rejecting grouping under § 3D1.2(c)
because the harms were not closely related and finding
it did not need to reach the double counting issue be-
cause the offense level would be the same “regardless of
whether the court applied the two-level statutory enhance-
ment under U.S.S.G. § 2T1.1(b)(1)”); United States v.
Vitale, 159 F.3d 810, 813-15 (3d Cir. 1998) (reaffirming
Astorri and rejecting Haltom, leaving open a little
wiggle room for situations in which the adjustment by
the tax evasion enhancement actually alters the final
offense level).


                            IV
  Several reasons persuade us to reject grouping in these
circumstances. First, looking at § 3D1.2(c), we agree
with the First and Tenth Circuits that the “specific offense
characteristic” in the tax guideline is too broad to re-
quire the conclusion that it encompasses wire fraud in
No. 05-4182                                              13

particular. Wire fraud is just one of countless ways to
obtain income from criminal activity. To suggest that
any criminal offense that produces income is subsumed
into the tax guideline calculation with a two-level enhance-
ment is to create a category without limits. This is differ-
ent from possessing a gun during a bank offense, where
precisely that conduct is identified as a specific offense
characteristic, or obstruction of justice, which is a
specific adjustment under § 3C1.1. There is a distinction
between saying that any underlying criminal act in-
creases the offense level and that a specific underlying
act increases the offense level. Furthermore, the Com-
mentary indicates that the enhancement is not supposed
to account for the underlying crime, but rather for the
presumption that officials will not be able to calculate
the full extent of the ill-gotten gains that a defendant
failed to report. Indeed, in this case, as we noted earlier,
Vucko went to great lengths to cover up her fraud and
thus disguise the amount of her illegal income. The
purpose of the enhancement suggests that it does not
and was not intended to add additional punishment to
take the wire fraud into account, but rather that it was
intended to recognize that Vucko may have underreported
more income than the IRS detected.
  Second, even if the wire fraud were encompassed by
the tax enhancement, the crimes still must be “closely
related” to be grouped under § 3D1.2(c) according to the
commentary. These two counts fail that basic test. Vucko
committed two different crimes, causing two different
harms and harming two different victims. She did so at
different times through different actions. This is enough to
dispose of her argument that grouping was required
under § 3D1.2(d). As we observed in United States v.
Brisson, in which the defendant also was convicted of
fraud and tax offenses but made a grouping argument
under § 3D1.2(d) rather than (c):
14                                              No. 05-4182

     There was no necessary connection between Brisson’s
     fraud on his bank and his bilking of the government.
     Brisson argues his three counts should go together
     because they were all “economic offenses arising out
     of the failed ownership of the hotel.” But that is both
     too high a level of generality and a disingenuous spin
     on the facts. Brisson’s false tax claims were filed
     after he lost the hotel and was desperate for money.
     But his diversion of the hotel’s room receipts in viola-
     tion of his bank’s security agreement helped bring
     about the failure of his ownership; it did not “aris[e]
     out of” that failure. Moreover, Brisson’s conduct
     involved different victims . . . . In short, the bank
     fraud and tax fraud did not represent “substantially
     the same harm,” U.S.S.G. § 3D1.2, so [the district
     judge] did not err in refusing to group them.
448 F.3d 989, 992 (7th Cir. 2006) (emphasis omitted). The
fact that Vucko’s crimes are generally related, in that
her initial wire fraud scheme produced the funds she failed
to report, is insufficient to make the crimes “closely re-
lated.”
  Although Vucko argues that United States v. Wilson, 98
F.3d 281 (7th Cir. 1996), compels a ruling in her favor, we
find that case distinguishable. There we found that cer-
tain fraud and money laundering charges were closely
related and subject to grouping under § 3D1.2(d), because
“[w]ithout the fraud there would have been no funds to
launder.” Id. at 282-83 (quoting United States v. Mullens,
65 F.3d 1560, 1564 (11th Cir. 1995)). Wilson’s money
laundering provided the mechanism for perpetuating his
Ponzi scheme, and both of his crimes targeted the same
set of victims. Vucko’s crimes, in contrast, separately
targeted Northwest and the United States. Vucko also
urges that grouping is consistent with two cases from
the Second Circuit, United States v. Petrillo, 237 F.3d 119
(2d Cir. 2000), and United States v. Fitzgerald, 232 F.3d
No. 05-4182                                              15

315 (2d Cir. 2000), both of which hold that tax and fraud
offenses that are part of a common criminal scheme
should be grouped under § 3D1.2(d). As we have already
noted, however, the scheme must be something more
than a plan to become rich. There is no evidence of such
a common scheme in Vucko’s case. To the extent that
the Second Circuit cases might be read to support a
broader rule covering all fraud and tax offenses, we note
only that we have already found in Brisson, United States
v. Chavin, 316 F.3d 666, 673-76 (7th Cir. 2002), and
United States v. Johnson, 117 F.3d 1010, 1014 (7th Cir.
1997), that mail or wire fraud and tax evasion normally
involve different harms and thus should not be grouped
under § 3D1.2(d). We see no reason to revisit those hold-
ings.
  Although double counting certainly should be avoided,
there is no risk of it here. According to the Pre-Sentence
Report, the adjusted offense level for Vucko’s fraud was 18.
The adjusted offense level for her tax offense was also 18,
including the two-level increase called for by § 2T1.1(b)(1)
for the income she derived from her wire fraud. Because
her offenses were not grouped, she earned one unit for
each offense. See § 3D1.4. With two “units,” her overall
offense level was increased by two, bringing it up to 20.
Id. Had she not been given the two extra levels provided
by § 2T1.1(b), her tax offense level would have been 16.
Under § 3D1.4, Vucko still would have received one unit
for the fraud and one unit for the tax offense, because the
tax offense level (16) would have been just two levels less
serious than the fraud level (18). The extra two levels
required because she had two units would have been
added to the higher offense level, § 3D1.4, and thus she
would have wound up with an adjusted level of 20. In other
words, Vucko’s final offense level was the same with or
without the extra two levels attributable to § 2T1.1(b).
16                                             No. 05-4182

  This, in fact, suggests a possible solution to the hypo-
thetical problem Vucko’s case suggests, even apart from
the sentencing flexibility inherent in the system of advi-
sory guidelines. In cases where a defendant faces separate
counts for the criminal activity that produced the unre-
ported income and for the tax crime, and double-counting
is possible (unlike Vucko’s case), the court can simply
refrain from adding the § 2T1.1(b)(1) two-level enhance-
ment to the tax offense. Cf. United States v. White, 222
F.3d 363, 373-76 (7th Cir. 2000) (holding that a court
may not both convict under 18 U.S.C. § 924(c) for use of
weapon and impose the guidelines enhancement under
U.S.S.G. § 2B3.1(b)(2) for use of the same weapon in the
same crime). This approach is preferable to a refusal to
group. Without grouping, where the tax offense is minor
enough to lead to an offense level more than four less than
the principal offense, the defendant would earn only one-
half unit, or in the extreme case no extra units at all. See
§ 3D1.4(b) (one-half unit for groups 5 to 8 levels less
serious than the group with the highest offense level);
§ 3D1.4(c) (disregard groups that are 9 levels less serious
than the one with the highest score). In this way, the
Guidelines produce a final offense level that reflects the
seriousness of the underlying conduct.
  We note, moreover, that even where both the tax-
specific offense characteristic and grouping affect the
final sentence, the Tenth Circuit suggested in Peterson
there is still no problem with double counting. As it saw
matters, there is no double counting because “the specific
offense characteristic for the tax evasion count relates to
the defendant’s subsequent decision and conduct regard-
ing the tax treatment of those monies he embezzled from
the companies, and this conduct is not embodied within
the defendant’s use of the mail to conceal the embezzle-
ment.” 312 F.3d at 1304 (adopting the district court’s
reasoning).
No. 05-4182                                             17

  Grouping under the circumstances of Vucko’s case
would seriously undercut the concept of “incremental
punishment” that underlies both the grouping rules and
the Guidelines as a whole. The effect of grouping Vucko’s
offenses would be to eliminate the marginal punishment
for her second offense, because she would have only one
group with an offense level of 18 (the level of each one of
her offenses). There would thus be no increase at all for
her additional crime (again, apart from any adjustment
the district court might make after calculating the advi-
sory guideline range).


                            V
  We conclude that the district court came to the correct
result when it rejected grouping. Vucko’s two offenses
were not closely enough related to justify grouping under
§ 3D1.2(d), nor does one contribute a specific offense
characteristic to the other such that § 3D1.2(c) should
apply. We therefore AFFIRM the judgment of the district
court.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—1-12-07
