                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                              No. 01-50656
                           consolidated with
                              No. 01-50666



                      UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

                                versus


                      MITCHELL STRAIL TOLBERT,

                                               Defendant - Appellant.



            Appeals from the United States District Court
                  For the Western District of Texas


                         September 12, 2002

Before KING, Chief Judge, and PARKER and CLEMENT, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

     We must determine whether offenses that are similar in

nature but arise from discrete circumstances and were committed

two years apart can be grouped when sentencing occurs in a

consolidated proceeding.    The district court answered in the

negative.    We reverse and remand.

                              BACKGROUND

     From December 1997 until August 1998, Defendant-Appellant

Mitchell S. Tolbert and his employer, Full Service Staffing
(“FSS”), generated fictitious accounts receivable which were used

as collateral to secure loans from a private lender.    FSS was

located in Texas, and the lender, in North Carolina.    FSS never

repaid the loans, and the resulting loss to the lender was

$1,274,888.   Then, during a five-day period in December 1999 to

January 2000, Tolbert engaged in a check kiting scheme, whereby

he deposited worthless checks drawn on his brokerage account into

his business account at Bank One.     The bank credited his account

while the checks were being cleared.    Tolbert then withdrew the

proceeds.   The resulting loss to the bank was $32,524.

     On January 4, 2001, Tolbert was indicted on 33 counts

related to the factoring scheme.    On April 16, 2001, he pled

guilty to 12 of them--wire fraud, 18 U.S.C. § 1343 (five counts);

conspiracy to commit wire fraud, 8 U.S.C. § 371; and interstate

transportation of fraudulently taken property, 18 U.S.C. § 2314

(six counts).   On June 6, 2001, Tolbert was indicted for a single

count of bank fraud, 18 U.S.C. § 1344.    He pled guilty to it a

few days later.   With the government’s concurrence, Tolbert moved

for joint sentencing on all counts.    The district court granted

the motion.

     At sentencing, Tolbert moved to have his convictions grouped

under the sentencing guidelines.    The district court refused.

Noting that grouping would effectively result in Tolbert’s

receiving no additional punishment for the bank fraud offense,

the district court said: “[N]o way in time nor logic could the

                                -2-
guidelines mean for a person who commits wire fraud in 1997 and

1998 [and] simply is not prosecuted or sentenced for it . . .

receive[] no sentence for committing bank fraud in 2001.”            The

court then determined the offense levels separately, calculating

19 levels for the wire fraud counts and 10 levels for the bank

fraud count.   Tolbert was sentenced to terms of 36 and 12 months’

imprisonment, sentences to run consecutively.

     Tolbert made a timely appeal.

                             DISCUSSION

     We review the district court’s decision in accordance with

the version of guidelines in effect at the time of sentencing--

i.e., the 2000 version.    See U.S. SENTENCING GUIDELINES MANUAL §

1B1.11 (2000)(“U.S.S.G.”).    The decision whether to group

offenses is a question of law we review de novo.        See United

States v. Patterson, 962 F.2d 409, 416 (5th Cir. 1992).

     Chapter Three, Part D, is applied after the sentencing court

determines the applicable guideline for each offense and makes

necessary adjustments.    See U.S.S.G. § 1B1.1.     In cases where the

defendant has been convicted on more than one count, it directs

the sentencing court to combine convictions into Groups of

Closely Related Counts.    Id. § 3D1.1(a)(1).     Multiple counts

should be grouped if they involve “substantially the same harm.”

Id. § 3D1.2.   Counts involve substantially the same harm when the

victims are the same and the counts were part of the same


                                 -3-
transaction or scheme, id. § 3D1.2(a)&(b), or when one count is a

specific offense characteristic of another, id. § 3D1.2(c).

Additionally, multiple counts involve the same harm “[w]hen 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 . . . .”      Id. § 3D1.2(d).

Once individual convictions are grouped, the sentencing court

determines the applicable offense level for each group.      Id. §

3D1.3.   For offenses grouped under § 3D1.2(d), the offense level

“is the offense level corresponding to the aggregated quantity,”

as calculated elsewhere in the guidelines.      Id. § 3D1.3(b).    If

there is only one group, its offense level is used to determine

the defendant’s sentence.      Id. § 3D1.4 cmt. application n.3.

     The purpose of grouping is to guard against disproportionate

punishment when a defendant is charged with multiple counts

arising from a single transaction or scheme.     “A defendant who

assaults others during a fight, for example, may warrant more

punishment if he injures ten people than if he injures one, but

his conduct does not necessarily warrant ten times the

punishment.”    U.S.S.G. § 1A4(e).   By grouping, “[t]he guidelines

. . . minimize the possibility that an arbitrary casting of a

single transaction into several counts will produce a longer

sentence.”     Id.   At the same time, Chapter Three, Part D, does

not limit its application to counts arising from the same set of


                                   -4-
predicate facts.    Under § 3D1.2(d), counts can be grouped if each

offense shares a particular attribute under the guidelines--

namely, that the offense level is determined largely on the basis

of some unit of measure, like the value of the property stolen or

the weight of the drugs smuggled.      See id. § 3D1.2 cmt.

application n.6.    There is no requirement that the offenses

relate to each other in time or space, thus apparently making the

pedagogical concern noted above inapplicable.

      The guidelines do not articulate a rationale for grouping

under § 3D1.2(d).    Although it is close, we nevertheless conclude

that § 3D1.2(d) allows for grouping of factually unrelated

counts.   Lest it be rendered superfluous, subsection (d) must be

distinguishable from § 3D1.2's other subsections.1     Subsections

(a) and (b) require grouping where the counts had the same victim

and were part of the same act or transaction or were part of a

common scheme or plan.    The first clause of subsection (d), the

measurable harm clause, also must be distinguished from the

clause that follows it.    The second clause requires grouping “if

the offense behavior is ongoing or continuous in nature and the

offense guideline is written to cover such behavior.”     Subsection

(d)’s two clauses are joined by “or,” not “and,” meaning that




  1
     Subsection (c) is not relevant for purposes of our analysis,
but we note that counts grouped under it must be related in time.
See id. § 3D1.2 cmt. application n.5.

                                 -5-
they are exclusive of each other.2      Thus, to keep subsection (d)

from being totally subsumed by (a) and (b) and the second part of

(d) it must address offenses in which 1) the victims are

different and 2) the involved behavior is unconnected.      In other

words, subsection (d) covers, among other things, discrete,

unrelated offenses involving measurable harm.3

      We find support for our construction in Chapter Five.     That

chapter is applied following the application of Chapter Three,

Part D.   See U.S.S.G. § 1B1.1.   Guideline 5G1.2 is entitled

“Sentencing on Multiple Counts of Conviction.”      It in effect says

that the total punishment is to be determined in accordance with

the grouping principles from Chapter Three, Part D.      Its

commentary states that § 5G1.2 “applies to multiple counts of

conviction (1) contained in the same indictment or information,

or (2) contained in different indictments or information for

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

consolidated proceeding.”   Thus, by extension, grouping is

required for offenses charged in different indictments but for



  2
     Offenses that would fall under the second clause but not the
first include, for example, trafficking and dealing in child
pornography, id. §§ 2G2.2 & 2G2.4. See id. App. C. amend. 615.
  3
     This construction is borne out by an example in the
application notes: “(3) The defendant is convicted of five counts
of mail fraud and ten counts of wire fraud. Although the counts
arise from various schemes, each involves a monetary objective.
All fifteen counts should be grouped together.” Id. § 3D1.2 cmt.
application n.6.

                                  -6-
which the defendant is being sentenced in a single proceeding.

In the main, offenses arising from the same set of predicate

facts are charged in a single indictment.    By requiring grouping

for counts contained in different indictments, the guidelines

facilitate the grouping of offenses that will not necessarily

arise from a discrete set of circumstances.

      Based on the foregoing construction of §3D1.2, we conclude

that the district court erred in not grouping the counts from the

factoring scheme with the bank fraud count.    All of these

offenses are sentenced in accordance with § 2F1.1.4   See U.S.S.G.

§ 2F1.1 cmt. statutory notes.    Subsection (b)(1) of the same

guideline determines the offense level on the basis of loss in

dollars.    Moreover, subsection (d), discussed above, expressly

states that offenses applying guideline 2F1.1 should be grouped.

See id. § 3D1.2 (“Offenses covered by the following guidelines

are to be grouped under this subsection: . . . . §§ 2F1.1,

2F1.2.”).    The base offense level under § 2F1.1 is 6.   When

grouping measurable harm offenses, guideline 3D1.3(b) states that

“the offense level applicable to a Group is the offense level

corresponding to the aggregated quantity, determined in

accordance with Chapter Two . . . .”    The total loss is



  4
     Guideline 2F1.1 has since been deleted. See id. App. C
amend. 617. Because the offenses in this case are sentenced
under the same guideline, we need not interpret the phrase “same
general type,” which is mentioned in § 3D1.2, application note 6.

                                 -7-
$1,303,393 ($1,274,888 + $32,524), which equates to an 11 level

adjustment.   See § 2F1.1(b)(1)(L)(loss more than $800,000 but

less than $1,500,000).   Finally, 2 levels are added because the

factoring scheme involved “more than minimal planning.”     See id.

§ 2F1.1(b)(2).   Thus, the total offense level for the group is

19.   Tolbert’s criminal history category is II, resulting in a

sentencing range of 33 to 41 months’ imprisonment.    This is the

range Tolbert would have received had he only been sentenced on

the counts from the factoring scheme, since the addition of the

loss from the bank fraud is too small to move him into the next

category under § 2F1.1(b)(1).   Grouping therefore saves Tolbert a

year’s imprisonment.

      We recognize that this result gives Tolbert a windfall

through the mere fortuity of having been sentenced in a single

proceeding.   But the guidelines expect that such anomalies will

occasionally occur.    See U.S.S.G. § 1A4(e).   Indeed, for such

instances it reminds the sentencing court of its authority to

order an upward departure.5   Id.   Further, we believe that

situations like Tolbert’s are the exception.    In most instances,

unrelated offenses brought in separate proceedings will not be

sentenced together.    We also note that the district court retains

its discretion to decide whether or not to consolidate offenses


  5
     We express no opinion whether departure is warranted in this
case, leaving that determination to the sound judgment of the
district judge.

                                 -8-
for joint sentencing.   Of course if our analysis is incorrect,

the sentencing commission can always clarify Chapter Three, Part

D, in next year’s addition of the guidelines.

                              CONCLUSION

      The judgment of the district is REVERSED and the case is

REMANDED for resentencing.6




  6
     Having determined that a single group is appropriate, we
need not reach Tolbert’s argument under § 3D1.4.

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