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
                   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-

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-

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-

     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-

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-

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-

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-

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-

     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-

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-

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-

     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-

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-

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-

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-

     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-

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-

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-

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-

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-

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-
