                                                                                     [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT           FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                      No. 11-12773                        MAY 4, 2012
                                ________________________                   JOHN LEY
                                                                            CLERK
                      D.C. Docket No. 8:10-cr-00513-JSM-TGW-1



UNITED STATES OF AMERICA,

                                                                           Plaintiff - Appellee,

                                             versus

STUART M. REGISTER,

                                                                       Defendant - Appellant.

                               ________________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                             ________________________

                                         (May 4, 2012)

Before MARCUS, COX and SILER,* Circuit Judges.

MARCUS, Circuit Judge:


       *
        Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
       Stuart Matthew Register pleaded guilty to seventeen counts of tax-related

offenses. The first thirteen concerned his failure to pay over to the Internal

Revenue Service (“IRS”) federal taxes that had been withheld from the wages of

his company’s employees. The remaining four concerned the falsification of his

individual federal income tax returns. After accepting his plea and holding a

sentencing hearing, the district court sentenced him to twenty-seven months in

prison. On appeal, Register challenges the district court’s calculation of the

applicable guideline range under the United States Sentencing Guidelines Manual

(“Guidelines” or “U.S.S.G.”).1 Specifically, he argues that the district court erred

by refusing to group all of his counts into a single group pursuant to U.S.S.G.

§ 3D1.2(b) or (d) as “counts involving substantially the same harm.”

       We agree. All seventeen of Register’s counts should have been grouped

under § 3D1.2(d) because their offense level is determined largely on the basis of

the amount of loss, the underlying offenses are of the same general type, and, in

this case, grouping serves § 3D1.2’s principal purpose of grouping closely related

counts. Accordingly, we vacate Register’s sentence and remand for resentencing.

                                               I.



       1
         All references to the Guidelines refer to the U.S. Sentencing Guidelines Manual (2010)
(effective Nov. 1, 2010).

                                               2
                                               A.

       Register was the owner and operator of Criminal Research Bureau, Inc.

(“CRB”), a provider of background-check services for employers. To manage the

CRB payroll, he used a payroll processing company, PrimePay, that prepared

employee paychecks and submitted the necessary quarterly paperwork to the IRS.

Register, in turn, was responsible for paying the taxes withheld over to the IRS.

From the first quarter of 2003 through the fourth quarter of 2007, federal income

taxes and Federal Insurance Contributions Act (“FICA”) taxes totaling $316,220

were withheld from the wages of CRB employees, yet Register never remitted the

vast majority of those funds to the IRS.2

       In addition, Register falsified his individual federal income tax returns

during this period for tax years 2003 to 2006. In 2003 and 2004, he was not on the

CRB payroll; instead, he paid his personal expenses directly from the company

bank account. Initially, he filed no federal returns at all for these years. However,

in order to qualify for a mortgage, Register ultimately filed his 2003 and 2004

returns late. In doing so, he generated Form W-2s that falsely indicated that he

had been paid wages and that federal taxes had been withheld. He then used those



       2
        Register did make two partial payments in the first two quarters of 2003, totaling
$8,417.82.

                                                3
figures to complete his Form 1040s for both years, enabling him to fraudulently

collect refunds of $4,444.50 for tax year 2003 and $7,479.13 for tax year 2004. In

2005 and 2006, Register added himself to the CRB payroll as an employee with an

annual salary of $234,000. Again, however, he falsified his Form 1040s to

indicate that federal taxes had been withheld from his salary when in fact none had

been withheld. As a result, Register collected refunds of $6,689.12 for tax year

2005 and $10,780 for tax year 2006 when, in reality, he owed $45,098 and

$40,905 for those tax years respectively.

                                               B.

      On December 8, 2010, Register was indicted on thirteen counts of willful

failure to pay over taxes in violation of 26 U.S.C. § 7202.3 Each count charged

that federal income taxes and FICA taxes had been withheld from the wages of

CRB employees during a particular quarter but were never paid over to the IRS.

The thirteen failure-to-pay-over counts in the indictment covered the period from

the fourth quarter of 2004 through the fourth quarter of 2007. Register was also


      3
          Section 7202 provides:

      Any person required under this title to collect, account for, and pay over any tax
      imposed by this title who willfully fails to collect or truthfully account for and pay
      over such tax shall, in addition to other penalties provided by law, be guilty of a
      felony and, upon conviction thereof, shall be fined not more than $10,000, or
      imprisoned not more than 5 years, or both, together with the costs of prosecution.

                                                4
indicted on four counts of filing false individual federal income tax returns in

violation of 26 U.S.C. § 7206(1).4 Each count charged that Register had falsely

stated on his return for a particular year that federal income tax had been withheld

when, in fact, he knew that it had not. The four filing-false-returns counts in the

indictment covered the 2003 through 2006 tax years. Register pleaded guilty to all

seventeen counts without a plea agreement.

      The probation officer who prepared the presentence investigation report

(“PSI”) calculated the applicable sentencing guideline range by grouping all of

Register’s failure-to-pay-over counts (under 26 U.S.C. § 7202) together into one

group and all of his filing-false-returns counts (under 26 U.S.C. § 7206(1))

together into another, separate group. The probation officer stopped short,

however, of grouping all of the counts into a single group, explaining that since

the two types of counts “do not involve the same harm, they do not meet the

criteria under USSG § 3D1.2(a)-(c) and cannot be grouped.” Next, the probation

officer calculated the amount of tax loss for the failure-to-pay-over group at

      4
          Section 7206(1) provides:

      Any person who . . . [w]illfully makes and subscribes any return, statement, or
      other document, which contains or is verified by a written declaration that it is
      made under the penalties of perjury, and which he does not believe to be true and
      correct as to every material matter . . . shall be guilty of a felony and, upon
      conviction thereof, shall be fined not more than $100,000 . . . , or imprisoned not
      more than 3 years, or both, together with the costs of prosecution.

                                               5
$316,220, resulting in a base offense level of 18, and the amount of tax loss for the

filing-false-returns group at $115,395.75, resulting in a base offense level of 16.

Because there were multiple groups, the probation officer then applied § 3D1.4 to

determine their combined offense level. Taking the group with the highest offense

level, the failure-to-pay-over group at 18, and increasing that offense level by 2

based on § 3D1.4, the probation officer determined the combined offense level to

be 20. Finally, the probation officer accounted for Register’s acceptance of

responsibility and cooperation in the investigation by applying a 3-level reduction

pursuant to § 3E1.1 to arrive at a total offense level of 17. Because Register had

no prior convictions, his criminal history category was I, and the resulting

guideline range was 24 to 30 months.

      Both Register and the United States objected to the probation officer’s

failure to group all seventeen counts together under either U.S.S.G. § 3D1.2(b) or

(d). In response, the probation officer offered the following explanation:

      The guidelines direct under USSG § 3D1.2 that counts can be grouped
      together when they involve substantially the same harm. Under
      subsection (b), counts can be grouped together when they involve the
      same victim and two or more acts connected by a common criminal
      objective or common scheme or plan. Under subsection (d) counts can
      be grouped together when the offense level is determined largely on the
      basis of the total amount of harm or loss. The defendant has been
      convicted of 17 counts representing two offenses: Failure to Pay Over
      Taxes to the [IRS] and Filing Fraudulent Federal Income Tax Returns.

                                          6
      During the years 2004 through 2007, the defendant failed to pay over
      employment taxes to the IRS for his employees. In addition, during the
      same period, he failed to pay income taxes on his own income and
      claimed inflated amounts of federal income tax withheld causing the IRS
      to pay him refunds that he was not entitled to. Although the IRS is the
      ultimate victim in both endeavors, the probation office views the
      defendant’s criminal behavior as two separate criminal objectives with
      two separate harms. It does not appear that the defendant committed
      both acts to specifically defraud the IRS. It does appear that the acts
      occurred as a result of his lifestyle and/or his personal financial
      situation. His behavior was not part of a single course of conduct with
      a single criminal objective.

      At the sentencing hearing on May 31, 2011, Register and the United States

again agreed that all of the counts should be grouped for sentencing. The district

court, however, disagreed with both parties and sided with the probation officer.

The court rejected the argument that the counts should all be grouped together

under subsection (b), because they did not involve the same criminal objective or

the same victim. And the court rejected the alternative argument that the counts

should all be grouped together under subsection (d), because it “seem[ed]

unusual” to aggregate the losses for two different offenses merely because the

offense level for each is determined largely on the basis of the total amount of

loss. Register also raised another objection -- not at issue on appeal -- alleging

that the $86,003 in unpaid taxes attributable to his income as a CRB employee in




                                          7
2005 and 2006 had been double counted by including it in both groups.5 On this

point, the district court agreed. Therefore, the district court ultimately concluded

that the total offense level was 16, which yielded a guideline range of 21 to 27

months. (If the district court had actually grouped together all seventeen counts,

Register’s total offense level would have been 15 instead of 16, yielding a

guideline range of 18 to 24 months.)

       Register and the United States each sought a sentence at the low end of the

guideline range. The district court, however, sentenced Register to 27 months, the

top of the range, on each of the seventeen counts, all to run concurrently.

Additionally, the court imposed a three-year term of supervised release; restitution

in the amount of $345,612.87; and a special assessment of $1,700. Register timely

appealed.

                                               II.

       We review the procedural reasonableness of a sentence, which includes


       5
          That is, the amount had been included once as part of the taxes withheld from the wages
of CRB employees but never paid over to the IRS, because Register was himself an employee in
2005 and 2006. Then the amount had been included again as part of the taxes owed on
Register’s individual returns for those years because, although he had claimed the taxes had
already been withheld, the IRS never in fact received the money. The government conceded that
it could only be counted once but recommended including the amount in the filing-false-returns
group. Register, on the other hand, argued that it was properly part of the failure-to-pay-over
group. After admitting that “it could go either way,” the district court chose to include the
amount in the failure-to-pay-over group.


                                                8
whether the guideline range was properly calculated, under an abuse-of-discretion

standard. Gall v. United States, 552 U.S. 38, 51 (2007). However, “the degree of

deference that is due varies with the type of procedural error alleged.” United

States v. Ellisor, 522 F.3d 1255, 1273 n.25 (11th Cir. 2008). “A district court

abuses its discretion if it applies an incorrect legal standard, follows improper

procedures in making the determination, or makes findings of fact that are clearly

erroneous.” Id. (quoting Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096

(11th Cir. 2004)). Accordingly, we review the district court’s interpretation of the

Guidelines and its application of the Guidelines to the facts de novo, but we

review its findings of fact only for clear error. Id.

      Under the Sentencing Guidelines, counts are to be grouped together for

purposes of calculating the appropriate guideline range whenever they involve

“substantially the same harm.” U.S.S.G. § 3D1.2. Section 3D1.2(d) provides, in

pertinent part, that counts involve substantially 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.” The

Sentencing Commission anticipated that “[s]ubsection (d) [would] likely . . . be

used with the greatest frequency,” explaining that it “provides that most property

crimes (except robbery, burglary, extortion and the like), drug offenses, firearms

                                           9
offenses, and other crimes where the guidelines are based primarily on quantity or

contemplate continuing behavior are to be grouped together.” U.S.S.G. § 3D1.2

cmt. n.6.

       Subsection (d) includes a list of guidelines covering offenses predetermined

to meet its requirements and provides that they “are to be grouped.”6 U.S.S.G.

§ 3D1.2(d). Nevertheless, when the counts involve offenses to which different

guidelines apply, grouping is not automatic even if all of the applicable guidelines

are included in this list. United States v. Harper, 972 F.2d 321, 322 (11th Cir.

1992) (per curiam). Rather, “[c]ounts involving offenses to which different

offense guidelines apply are grouped together under subsection (d) if the offenses

are of the same general type and otherwise meet the criteria for grouping under

this subsection.” U.S.S.G. § 3D1.2(d) cmt. n.6. “The ‘same general type’ of

offense is to be construed broadly.” Id. In addition, our cases have required that

the offenses not only be similar in a general sense but also “closely related” on the

facts of the particular case. Harper, 972 F.2d at 322 (“[D]rug trafficking and

money laundering are not crimes ‘of the same general type;’ nor are these

offenses, under these facts, closely related.”). Compare United States v. Mullens,


       6
         In addition, subsection (d) includes a list of guidelines covering offenses that are
“[s]pecifically excluded from the operation of this subsection.” U.S.S.G. § 3D1.2(d). Offenses
appearing on neither list must be evaluated on a case-by-case basis. Id.

                                              10
65 F.3d 1560, 1564 (11th Cir. 1995) (grouping together money laundering and

fraud counts where both “were integral cogs in continuing the scheme”), with

United States v. McClendon, 195 F.3d 598, 602 (11th Cir. 1999) (per curiam)

(refusing to group together money laundering and fraud counts where “the main

connection between the laundered funds and the fraud scheme [was] that the

money represented the proceeds of the fraud”).

      As an initial matter, we have no difficulty concluding that Register’s

offenses “otherwise meet the criteria for grouping under [subsection (d)].” The

applicable guideline for the failure-to-pay-over counts is § 2T1.6, entitled “Failing

to Collect or Truthfully Account for and Pay Over Tax,” and the applicable

guideline for the filing-false-returns counts is § 2T1.1, entitled “Tax Evasion;

Willful Failure to File Return, Supply Information, or Pay Tax; Fraudulent or

False Returns, Statements, or Other Documents.” Inasmuch as both guidelines are

expressly included in the “are to be grouped” together list, they clearly “otherwise

meet the criteria” for grouping under subsection (d). See U.S.S.G. § 3D1.2(d).

      We next consider whether the offenses here are “of the same general type”

and “closely related” on the facts of this case. Although Register’s

failure-to-pay-over counts under § 7202 and filing-false-returns counts under §

7206(1) are governed by different guidelines, we conclude that the underlying

                                         11
offenses are “of the same general type.” Both are tax offenses governed by the

Internal Revenue Code and Part T of the Sentencing Guidelines. The “measure of

aggregate harm” is the same in both, since each involves a monetary objective.

See U.S.S.G. § 3D1.2 cmt. n.6 ex. 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 are to be grouped

together.”). And while the guidelines themselves may be different, notably, the

base offense level for both is determined by looking up the amount of tax loss in

the same Tax Table located at § 2T4.1.

      Moreover, on the facts of this case, grouping the offenses serves § 3D1.2’s

principal purpose of “combin[ing] offenses involving closely related counts.”

Harper, 972 F.2d at 322. The failure-to-pay-over counts alleged that Register

withheld taxes from the wages of CRB employees but never paid them over to the

IRS. Yet the basis of the filing-false-returns counts was that Register had lied

about whether federal income taxes had already been withheld from his wages.

The similarity between the offenses is exemplified by the government’s accidental

double counting of the taxes attributable to Register’s salary as a CRB employee

in 2005 and 2006 and, once the mistake had been pointed out, by the district

court’s ensuing difficulty in deciding in which of the two groups the amount

                                         12
belonged. As the district court conceded, it could have gone either way, and this

fact is telling. Not only were the offenses here closely related, there was

substantial overlap in the underlying offense conduct.

      Finally, we are unpersuaded by the reasons offered by the government for

why these counts should not be grouped. The government says that “crimes are

not ‘of the same general type’ if they involve different schemes, different

objectives, and different victims, and took place at different times.” However,

these proscriptions appear neither in the text of § 3D1.2(d), nor in the

accompanying commentary, nor in our precedent. Unlike subsections (a) and (b),

subsection (d) imposes no “same victim” requirement. See U.S.S.G. § 3D1.2 cmt.

background (“Counts involving different victims (or societal harms in the case of

‘victimless’ crimes) are grouped together only as provided in subsection (c) or

(d).”). Furthermore, unlike subsection (b), there is no requirement in subsection

(d) that the counts involve a common criminal objective or a common scheme. On

the contrary, an example offered in the commentary states that grouping together

is proper under subsection (d) “[a]lthough the counts arise from various schemes.”

See U.S.S.G. § 3D1.2(d) cmt. n.6 ex. 3. Finally, there is no prohibition in

subsection (d) against grouping counts that occurred at different times.

      Inasmuch as the prerequisites for grouping under subsection (d) are met, all

                                         13
seventeen of Register’s counts should have been grouped together under

§ 3D1.2(d).7 We therefore VACATE Register’s sentence and REMAND to the

district court for resentencing consistent with this opinion.




       7
          Because we find that all of Register’s counts should have been grouped under
§ 3D1.2(d), we need not address Register’s argument that subsection (b) provides an independent
basis for grouping.

                                              14
