                               In the

    United States Court of Appeals
                 For the Seventh Circuit

No. 12-2604

UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                  v.

RODERICK D. SINCLAIR,
                                               Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, South Bend Division.
       No. 3:11-CR-00105(01)RM — Robert L. Miller, Jr., Judge.



     ARGUED APRIL 8, 2013 — DECIDED OCTOBER 21, 2014



   Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. Roderick Sinclair was arrested in
Elkhart, Indiana, for driving with a suspended license. The
police found a loaded handgun, a distribution quantity of
marijuana, and tools of the drug-trafficking trade in his car.
Sinclair was indicted for possessing marijuana with intent to
distribute, see 21 U.S.C. § 841(a)(1), possessing a firearm in
furtherance of a drug-trafficking crime, see 18 U.S.C. § 924(c),
and possessing a firearm as a felon, see id. § 922(g)(1).
  Trial was set to begin on a Tuesday. On Wednesday of the
week before trial, Sinclair wrote the district judge asking for a
2                                                     No. 12-2604

continuance to allow his family to hire a private attorney to
represent him. The judge received the letter on Thursday,
docketed it on Friday, and scheduled a hearing for the follow-
ing Monday. At the end of the hearing, the judge denied the
continuance request. Trial began as scheduled the next day,
and the jury convicted Sinclair on all counts.
    Sinclair’s presentence report recommended grouping the
drug count with the felon-in-possession count under § 3D1.2
of the sentencing guidelines, which directs the court to
combine “[a]ll counts involving substantially the same harm”
into a single group and determine the offense level for the
group. U.S.S.G. § 3D1.2. Grouping is required in several
situations, one of which is when a count of conviction “em-
bodies conduct that is treated as a specific offense characteristic
in, or other adjustment to, the guidelines applicable to another
of the counts.” Id. § 3D1.2(c).
    The government objected to the grouping recommendation,
noting that although the two counts ordinarily would be
treated as specific offense characteristics of each other, they did
not have that effect in this case because Sinclair was also
convicted of a § 924(c) offense. The statutory penalty for a
§ 924(c) conviction is a mandatory 60-month consecutive
sentence, and with that conviction in the mix, the guidelines
direct the court not to apply any offense-characteristic
enhancement for firearm possession to the underlying count.
See U.S.S.G. § 2K2.4 cmt. n.4. In other words, this particular
combination of counts removed the otherwise applicable basis
for grouping under § 3D1.2(c).
    The judge adopted the government’s interpretation of the
grouping rule. Absent grouping, the offense level was 17
instead of 16, resulting in a slightly higher guidelines range for
the two counts. The judge imposed concurrent within-
guidelines prison terms of 57 months on the drug and felon-in-
possession counts and tacked on the mandatory consecutive
No. 12-2604                                                    3

60-month term for the § 924(c) conviction, for a total sentence
of 117 months in prison.
   Sinclair appealed, raising two issues. First, he argues that
the district court violated his Sixth Amendment right to
counsel of his choice by denying a continuance to allow his
family to hire a private attorney. Second, he challenges the
court’s decision not to group the drug and felon-in-possession
counts.
    We affirm. The Sixth Amendment entitles a criminal
defendant to retain counsel of his choice, see United States v.
Gonzalez-Lopez, 548 U.S. 140, 144 (2006), but the trial court has
broad discretion in addressing a continuance motion based on
the right. The court is entitled to weigh the defendant’s claim
against the need to ensure the fair and efficient administration
of justice. The judge did that here, and we find no abuse of
discretion in his decision to deny the requested continuance.
    We also find no error in Sinclair’s sentence. In the ordinary
case, the drug and felon-in-possession counts are treated as
specific offense characteristics of each other, see U.S.S.G.
§§ 2D1.1(b)(1), 2K2.1(b)(6)(B), triggering offense-level enhance-
ments and thus the grouping rule of § 3D1.2(c). But the
guidelines specifically provide that enhancements for firearm
possession do not apply when the defendant is also convicted
of violating § 924(c), which carries a mandatory consecutive
sentence. See id. § 2K2.4 cmt. n.4. Because the otherwise
applicable offense-characteristic enhancements were not
applied here, there was no basis for grouping under § 3D1.2(c).


                        I. Background
   Elkhart Police Officer Michael Bogart had some history
with Sinclair, or at least enough to know that he did not have
a valid driver’s license. On the afternoon of June 16, 2011,
4                                                     No. 12-2604

Bogart spotted Sinclair driving a blue Cadillac westbound on
Blaine Avenue in Elkhart. After confirming that Sinclair’s
license was indeed suspended, the officer followed the Cadillac
and pulled up behind the car as Sinclair parked on Roys
Avenue.
    Officer Bogart approached and arrested Sinclair for driving
with a suspended license. A frisk turned up a plastic bag
containing marijuana in Sinclair’s front pants pocket. A search
of the car revealed numerous bags of marijuana, a supply of
small plastic bags, two digital scales, and a loaded handgun. At
the Elkhart police station, Sinclair admitted that the marijuana
was his and that he planned to sell it. He also admitted that the
handgun was his.
    A federal grand jury indicted Sinclair for possession of
marijuana with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1), possession of a firearm in furtherance of a drug-
trafficking crime in violation of 18 U.S.C. § 924(c), and posses-
sion of a firearm as a felon in violation of 18 U.S.C. § 922(g)(1).
A federal defender was appointed and the case was set for
trial.
    About a month before trial, Sinclair filed two motions, one
to continue the trial and one to suppress evidence. The
continuance motion was based on nascent plea negotiations
and also raised conflicts in the trial schedules of the attorneys.
The district court granted the continuance request and resched-
uled the trial to February 7, 2012. On January 6, 2012, the court
held a hearing on the suppression motion and denied it.
Sinclair’s trial remained scheduled for February 7, a month
later.
   On February 2—the Thursday before trial—the judge
received a letter from Sinclair seeking another continuance.
The letter, dated February 1, explained that some of Sinclair’s
family members planned to hire private counsel to represent
No. 12-2604                                                    5

him using their tax-refund money to pay the attorney’s
retainer. Sinclair told the court that his family members
expected to receive their refunds within seven to ten business
days; he asked for a continuance of no more than 21 days.
Sinclair also expressed dissatisfaction with his federal de-
fender, complaining that the lawyer had not followed through
with an important line of questioning at the suppression
hearing. Finally, Sinclair claimed to have new evidence
relevant to suppression. He didn’t say what it was, but he
assured the court that his new lawyer would present it once he
was retained.
    The judge docketed the letter on Friday, February 3, and
scheduled a hearing for February 6, the following Monday. At
the hearing the judge attempted to clarify Sinclair’s reasons for
the continuance request, asking Sinclair whether his family
members had contacted a private attorney yet. Sinclair said
yes, his family had contacted Attorney Mark Lenyo, who had
quoted a retainer amount. Sinclair reiterated that his family
members planned to use their tax-refund money to pay the
retainer and expressed confidence that they would soon have
their refunds in hand.
   The judge then asked Sinclair why he thought his current
federal defender was not representing him properly. Sinclair
responded that the lawyer had confused him about the effects
of pleading guilty and had not handled the suppression
hearing well. But he wasn’t specific about what he thought
counsel had omitted, saying only that the suppression hearing
was “the straw that broke the camel’s back.” Finally, the judge
asked Sinclair about his claim of newly discovered evidence.
Sinclair said only that new evidence had come to his attention
two weeks earlier and his new attorney would present it when
he was hired. Again, Sinclair was not more specific, and even
now he does not tell us what the new evidence is.
6                                                    No. 12-2604

    The judge ruled from the bench and denied the continuance
motion. He began by noting the last-minute timing, saying that
the situation might have been different if Sinclair had filed the
motion sooner, even just two or three weeks earlier. The judge
also questioned whether Lenyo would be available and willing
to take on Sinclair’s case. Even assuming that Sinclair’s family
had been in touch with him, the inquiry was preliminary and
establishing an actual attorney-client relationship depended on
many contingencies. This uncertainty, the judge stated,
weighed heavily against a continuance. The judge also consid-
ered the disruption a continuance would cause to others
involved in the case. He noted that the courtroom was reserved
for a jury trial, 34 jurors had been summoned, and the govern-
ment had subpoenaed five witnesses and instructed a sixth to
appear. Finally, the judge addressed Sinclair’s claim of dissatis-
faction with his federal defender. The complaints about
counsel’s performance were vague, the judge said, and the
federal defender had to date provided effective assistance. The
judge credited Sinclair with having filed the motion in good
faith and not for the purpose of delay, but in the end declined
to postpone the trial, finding that Sinclair’s reasons for wanting
a continuance were vague, weak, and contingent, and in any
event were substantially outweighed by countervailing
administrative considerations and inconvenience to others.
    The case proceeded to trial as scheduled the next day.
Before jury selection Sinclair renewed his request for a continu-
ance so he could hire Lenyo. He told the judge that his family
members had received their anticipated tax refunds the day
before and had attempted to contact Lenyo, but the attorney
was out of the office. The judge recalled that Lenyo was in trial
in a different court, which would explain why Sinclair’s family
could not reach him. The judge again asked Sinclair about his
problems with his federal defender. Sinclair reiterated the two
No. 12-2604                                                      7

reasons he had given the day before and added that his
attorney seemed unprepared when meeting with him.
    Once more the judge denied Sinclair’s request for a continu-
ance. He expressed skepticism that Lenyo, even if hired, could
get up to speed on the case within an appropriate time frame.
The judge also reiterated that there was no reason to doubt the
performance of Sinclair’s federal defender. The judge said
again that he did not think Sinclair was simply trying to delay,
but concluded that the uncertainty and inconvenience sur-
rounding the eleventh-hour continuance request (twelfth-hour,
really) were good reasons to deny it.
    The trial ended the same day it began; the jury returned a
verdict of guilty on all three counts. The case proceeded to
sentencing. Sinclair’s presentence report recommended
grouping counts 1 and 3—the marijuana and felon-in-posses-
sion counts—as directed by § 3D1.2 of the sentencing guide-
lines, which provides that “[a]ll counts involving substantially
the same harm shall be grouped together”and a single offense
level determined for the group. U.S.S.G. § 3D1.2. The grouping
guideline lists several circumstances in which multiple counts
are deemed to involve “substantially the same harm,” includ-
ing, as relevant here, “[w]hen one of the counts embodies
conduct that is treated as a specific offense characteristic in, or
other adjustment to, the guideline applicable to another of the
counts.” Id. § 3D1.2(c). Grouping produced a total offense level
of 16 for the grouped counts 1 and 3. This offense level,
combined with Sinclair’s criminal history category of VI,
yielded an advisory guidelines range of 46 to 57 months for
these counts. Count 2—the conviction for possessing a firearm
in furtherance of a drug-trafficking crime—carried a manda-
tory consecutive 60-month sentence. See § 924(c); U.S.S.G.
§ 2K2.4(b).
   The government objected to the grouping recommendation.
The judge agreed and declined to group counts 1 and 3. The
8                                                    No. 12-2604

judge acknowledged that in most cases the two counts should
be grouped because the convictions are specific offense
characteristics of each other, resulting in offense-level enhance-
ments under § 2D.1(b)(1) and § 2K2.1(b)(6)(B). But the guide-
lines instruct courts not to apply offense-characteristic en-
hancements for firearm possession when the defendant is also
subject to a mandatory consecutive sentence for possessing a
firearm in furtherance of a drug-trafficking crime in violation
of § 924(c). See U.S.S.G. § 2K2.4(b) & cmt. 4. The judge thus
moved on to decide whether grouping was warranted when an
offense-characteristic enhancement does not actually apply,
even though it normally would.
    The judge concluded that grouping was not warranted for
two basic reasons. First, he noted that grouping under § 3D1.2
is justified only when the counts are closely related, and
concluded that the drug-trafficking and felon-in-possession
counts were not closely related because they involved distinct
harms to society. Second, he observed that the grouping
guideline was designed to prevent double counting, and there
was no risk of double counting here since the otherwise
applicable offense-characteristic enhancements did not apply.
Without grouping, the offense level for these two counts was
17 instead of 16, yielding a guidelines range of 51 to 63 months.
After weighing the sentencing factors under 18 U.S.C.
§ 3553(a), the judge imposed a total sentence of 117 months—
57 months concurrent on counts 1 and 3 and a consecutive
60 months on count 2.


                         II. Discussion
    Sinclair raises two issues on appeal. First, he challenges the
denial of his continuance motion, claiming a violation of his
Sixth Amendment right to counsel of his choice. Second, he
No. 12-2604                                                         9

challenges the district court’s decision not to group the drug-
trafficking and felon-in-possession counts under § 3D1.2(c).


A. Continuance/Right to Counsel of Choice
    Although a criminal defendant has a right to a court-
appointed attorney if he cannot afford to hire one, see Gideon v.
Wainwright, 372 U.S. 335, 344–45 (1963), he does not have the
right to choose his appointed counsel, see Gonzalez-Lopez,
548 U.S. at 151; Wheat v. United States, 486 U.S. 153, 159 (1988);
Carlson v. Jess, 526 F.3d 1018, 1025 (7th Cir. 2008). But if a
defendant has the means to hire his own attorney, the Sixth
Amendment generally protects his right to the assistance of
counsel of his choice. Gonzalez-Lopez, 548 U.S. at 144. The right
is qualified, however, id. at 151–52; United States v. O’Malley,
786 F.2d 786, 789 (7th Cir. 1986), and in some circumstances
must yield to the “need for a fair and efficient administration
of justice,” United States ex rel. Kleba v. McGinnis, 796 F.2d 947,
952 (7th Cir. 1986) (quoting United States v. Cicale, 691 F.2d 95,
106 (2d Cir. 1982)).
    When faced with a defendant’s request to adjourn a trial to
permit the retention of counsel, the trial court should begin
with “a presumption in favor of a defendant’s counsel of
choice.” Carlson, 526 F.3d at 1024. After all, the right is “one of
constitutional dignity.” United States v. Santos, 201 F.3d 953, 959
(7th Cir. 2000). But the court has “wide latitude in balancing
the right to counsel of choice against the needs of fairness
and … the demands of its calendar.” Gonzalez-Lopez, 548 U.S.
at 152 (citation omitted); see also United States v. Sellers, 645 F.3d
830, 834 (7th Cir. 2011). Accordingly, trial judges have broad
discretion over continuance requests premised on the Sixth
Amendment right to counsel of choice:
       Trial judges necessarily require a great deal of
       latitude in scheduling trials. Not the least of their
10                                                    No. 12-2604

       problems is that of assembling the witnesses,
       lawyers, and jurors at the same place at the same
       time, and this burden counsels against continu-
       ances except for compelling reasons. Conse-
       quently, broad discretion must be granted trial
       courts on matters of continuances; only an un-
       reasoning and arbitrary “insistence upon expedi-
       tiousness in the face of a justifiable request for
       delay” violates the right to the assistance of
       counsel [of choice].
Morris v. Slappy, 461 U.S. 1, 11 (quoting Ungar v. Sarafite,
376 U.S. 575, 589 (1964)).
    “Discretion,” of course, “is not whim,” Martin v. Franklin
Capital Corp., 546 U.S. 132, 139 (2005), and a trial judge con-
fronted with a continuance request cannot indulge “a myopic
insistence upon expeditiousness,” Ungar, 376 U.S. at 589; see
also Carlson, 526 F.3d at 1025. Our review is deferential; we do
not second-guess the balance struck by the trial judge. Only an
“unreason[ed] and arbitrary” denial of a continuance violates
the defendant’s Sixth Amendment right to counsel of his
choice. Morris, 461 U.S. at 11–12; Ungar, 376 U.S. at 589; Sellers,
645 F.3d at 834–35; Carlson, 526 F.3d at 1025; Santos, 201 F.3d at
958.
    One particularly salient circumstance here involves the
timing of Sinclair’s continuance motion. The judge expressed
serious concern about the last-minute nature of the request,
and rightly so. As a case gets closer to trial, granting a continu-
ance becomes more disruptive to the court’s calendar and to
others involved in the case. On the eve of trial, as compared to
earlier in the litigation, the interests of the government, the
witnesses, the jurors, and the court will be particularly strong.
See United States v. Gaya, 647 F.3d 634, 636 (7th Cir. 2011).
Needless to say, trial preparation takes substantial time and
effort—by the prosecutor and defense attorney, to be sure, but
No. 12-2604                                                      11

also by the court—and revving up for trial a second time
necessarily involves duplication of effort and attendant public
expense. Other parties—primarily the witnesses and jurors, but
court personnel as well—will have made preparations and
arranged their schedules in expectation of trial. Finally, last-
minute continuances cause more serious disruption to court
calendars; it’s too late for the court to slot in another trial, and
the interests of litigants in other cases may be adversely
affected. In short, late-breaking continuances can be especially
costly. On the eve of trial, the interests weighing against
granting a continuance take on greater significance. For all
practical purposes, Sinclair’s request came on the eve of trial.
    That isn’t to say that the last-minute nature of Sinclair’s
request alone justified denying it. Our precedent does not
support such a hard-and-fast rule. We have found a violation
of the defendant’s right to retain counsel of his choice in cases
involving continuance requests made a just a few days before
trial. See Sellers, 645 F.3d at 833 (continuance motion filed three
business days before trial); Carlson, 526 F.3d at 1020 (continu-
ance motion filed two days before trial). In both Sellers and
Carlson, the trial judges cited general calendar disruption as the
reason to deny eve-of-trial continuance requests. In each case
we held that rote reliance on this factor was insufficient,
without more, to outweigh the defendant’s right to retain
counsel of his choice. See Sellers, 645 F.3d at 837; Carlson,
526 F.3d at 1021–22. As we explained in Sellers, “[a] district
court’s schedule, although a significant consideration, does not
automatically trump all other interests.” 645 F.3d at 838; see also
Carlson, 526 F.3d at 1027 (“In sum, the trial judge ignored the
presumption in favor of [the defendant’s] counsel of choice
and insisted upon expeditiousness for its own sake.”).
   Here, in contrast, the district judge did not deny the
continuance motion based on generic concerns about its last-
minute timing. Rather, the judge weighed the costs of a
12                                                   No. 12-2604

continuance to specific third parties involved in the case:
Thirty-four jurors had been called to report for jury duty; five
witnesses were under subpoena; and an additional witness had
been instructed to appear. Delaying the trial would inconve-
nience these 40 people. The witnesses would have to adjust
their schedules again, and a new jury pool would have to be
drawn. These are real costs for real people (not to mention the
sunk public resources). By considering these interests, the
judge did not arbitrarily stick to the schedule for its own sake.
    In some cases accommodating the defendant’s right to
counsel of his choice may justify these costs, but the defendant
bears some responsibility to act diligently to minimize or avoid
them if possible. See Gaya, 647 F.3d at 636 (emphasizing that
the defendant “had ample opportunity during the previous
five months to express to the court his dissatisfaction with his
lawyer and desire for a different one”). Although Sinclair did
not act with a purpose to delay the trial (we defer to the trial
judge’s view on this point), neither did he offer any reason for
waiting until the last minute to request a continuance. In his
own words, his counsel’s performance at the suppression
hearing on January 6 was “the straw that broke the camel’s
back,” yet he let more than three weeks pass before requesting
a continuance, and to this day he hasn’t explained the delay.
The judge pointed out that the result may well have been
different if Sinclair had filed his motion two or three weeks
earlier. The unexplained delay also supports the decision to
deny the request for a continuance.
    The clincher here, however, is the uncertainty surrounding
Sinclair’s attempt to retain private counsel. His family’s plan to
hire Lenyo was at best preliminary and highly contingent.
Indeed, the judge likened a continuance in this situation to
“betting on the future as to what’s going to happen.” That was
an apt description. Sinclair’s family had talked to Lenyo about
representing him and learned the amount of Lenyo’s retainer,
No. 12-2604                                                      13

but it remained unclear whether Lenyo would take on the
representation. He had not returned phone calls and was likely
in trial elsewhere. Even now we don’t know whether Lenyo
was willing to represent Sinclair; there’s nothing in the record
suggesting that he ever agreed to undertake the representation.
Although Sinclair said he would like to hire another attorney
if he could not secure Lenyo’s services, whether he could or
would was pure conjecture.
    This uncertainty meant that the costs to the government,
the witnesses, and the fair and efficient administration of
justice outweighed Sinclair’s claim of a Sixth Amendment
entitlement to a continuance. In our prior cases, this element of
uncertainty was not present; the defendant had already
retained private counsel. See Sellers, 645 F.3d at 832–34; United
States v. Smith, 618 F.3d 657, 659 (7th Cir. 2010); Carlson,
526 F.3d at 1020–21; Santos, 201 F.3d at 957–58. We’ve sug-
gested before that the preferred lawyer’s failure to appear in
support of a defendant’s continuance motion is a significant
factor weighing against granting a continuance. See United
States v. Carrera, 259 F.3d 818, 825 (7th Cir. 2001) (“[B]ecause his
attorney never moved for a continuance, we do not know if the
government would have opposed the motion, if the judge had
a scheduling conflict, or if a continuance would have caused
hardship to any of the parties.”); see also Sellers, 645 F.3d at 839
(suggesting that in Carrera there was no violation of the right
to counsel of choice “because [the defendant’s] proposed new
attorney never actually appeared to move for a continuance,”
which meant that “the district court could not engage in the
exact type of balancing that is essential before deciding
whether a continuance is warranted”).
    Sinclair argues that the district court inappropriately
focused on the federal defender’s effective representation. But
the judge was simply responding to Sinclair’s complaint that
a continuance was necessary because his federal defender had
14                                                   No. 12-2604

performed poorly at the suppression hearing. Indeed, we have
criticized trial courts for failing to consider the defendant’s
reasons for wanting a new lawyer. See Sellers, 645 F.3d at
838–39 (“The key, however, is that these legitimate consider-
ations must be balanced against the reasons in support of the
motion for a continuance to accommodate new counsel. Here,
the court failed in its duty to look also at the other side of the
scale and to weigh Sellers’s rationale for terminating [his
lawyer].” (citation omitted)); Carlson, 526 F.3d at 1027 (“[T]he
trial court needed to explore [Carlson’s reasons for wanting a
new lawyer] and, because Carlson also requested a continu-
ance, balance them against the reasons for not granting
Carlson’s motion. The trial judge, however, made no effort to
do so.”). The judge can hardly be faulted for probing Sinclair’s
dissatisfaction with his appointed lawyer. As it turned out,
Sinclair was cagey on this subject and still has not specifically
identified what he thinks his counsel omitted at the suppres-
sion hearing. Under the circumstances, the judge was well
within his discretion to place little weight on this factor.
    In short, the denial of the continuance motion did not
violate Sinclair’s Sixth Amendment right to retain counsel of
his choice. The decision was neither unreasoned nor arbitrary.
To the contrary, the judge appropriately weighed the uncer-
tainties of Sinclair’s plan to hire private counsel against the
costs of a last-minute adjournment to the government, the
witnesses, and the fair and efficient administration of justice.
We find no abuse of discretion.


B. Sentencing
   Sinclair also challenges the district court’s decision not to
group counts 1 and 3, the convictions for marijuana trafficking
and possession of a firearm as a felon. Grouping rules apply in
multiple-count cases and are designed “to provide incremental
No. 12-2604                                                   15

punishment for significant additional criminal conduct” and
“to prevent multiple punishment for substantially identical
offense conduct.” U.S.S.G. ch. 3, pt. D, introductory cmt.; see
also United States v. Vucko, 473 F.3d 773, 776–77 (7th Cir. 2007)
(explaining that the purpose of the grouping guideline is to
prevent “double counting”). “The rules achieve these goals by
consolidating related offenses into groups and assigning a
combined offense level based on the components of each
group, the number of groups, and the relative offense levels
assigned to each group.” United States v. Chase, 296 F.3d 247,
250 (4th Cir. 2002).
    The grouping guideline begins with a general rule—“[a]ll
counts involving substantially the same harm shall be grouped
together in a single Group”—and continues with a list of
circumstances in which counts are deemed to involve “sub-
stantially the same harm” within the meaning of the rule.
U.S.S.G. § 3D1.2. Relevant here is § 3D1.2(c), which states that
multiple counts involve substantially the same harm “[w]hen
one of the counts embodies conduct that is treated as a specific
offense characteristic in, or other adjustment to, the guideline
applicable to another of the counts.” Id. § 3D1.2(c).
    Sinclair argues that the district court was required to group
counts 1 and 3 because the conduct embodied in each of these
counts is treated as a specific offense characteristic for the
other. More specifically, the guideline for drug-trafficking
offenses directs the court to apply a two-level enhancement for
the offense characteristic of possessing a dangerous weapon
during the commission of the offense. See id. § 2D1.1(b)(1). And
the guideline for unlawful possession of a firearm directs the
court to apply a four-level enhancement if the defendant
possessed a firearm “in connection with another felony
offense.” Id. § 2K2.1(b)(6)(B). Because the drug-trafficking and
felon-in-possession counts are specific offense characteristics
16                                                    No. 12-2604

of each other, § 3D1.2(c) directs the court to combine them in
a single group and determine the offense level for the group.
    Ordinarily that’s the correct analysis. But it’s not correct in
this case. Or more precisely, the usual analysis is incomplete in
the specific circumstances of this case. Grouping rules are
applied after the offense level has been calculated for each
separate offense in the case. United States v. Mrazek, 998 F.2d
453, 455 (7th Cir. 1993) ( “[G]rouping comes after the offense
level has been determined for each separate crime … .”). The
order of battle in guidelines sentencing requires the court to
first determine the base offense level and then add “any
appropriate specific offense characteristics, cross references,
and special instructions” in Chapter Two of the Guidelines
Manual and any appropriate adjustments “related to victim,
role, and obstruction of justice from Parts A, B, and C of
Chapter Three.” U.S.S.G. § 1B1.1(a)(2) & (3). In other words,
the grouping rules in Part D of Chapter Three are not applied
in the abstract; they come into play after the offense level for
each count in the case has been determined.
    The district court followed that order of analysis and
determined that counts 1 and 3 are not treated as offense
characteristics of each other with this particular combination
of counts. To understand why requires an examination of the
offense guideline for count 2, the § 924(c) conviction for
possessing a firearm in furtherance of a drug-trafficking crime.
The “guideline sentence” for a § 924(c) conviction is the
minimum term of imprisonment required by statute. See
U.S.S.G. § 2K2.4(b). Sinclair’s § 924(c) conviction carried a
statutory mandatory minimum sentence of 60 months. See
§ 924(c)(1)(A)(i). And the § 924(c) sentence must be consecutive
to the sentence for the underlying offense, see § 924(c)(1)(D)(ii);
a § 924(c) count cannot be grouped, see U.S.S.G. § 3D1.1(b)(1).
   The § 924(c) conviction also affects the treatment of the
other counts under Chapter Two of the guidelines. Because a
No. 12-2604                                                    17

§ 924(c) conviction requires a mandatory consecutive sentence,
Application Note 4 to § 2K2.4 specifically directs the court not
to apply any offense-characteristic enhancement for firearm
possession to the underlying count. Id. § 2K2.4 cmt. 4. (“If a
sentence [for a § 924(c) conviction] is imposed in conjunction
with a sentence for an underlying offense, do not apply any
specific offense characteristic for possession … of a[] … firearm
when determining the sentence for the underlying offense.”).
This is because “[a] sentence [for a § 924(c) conviction] ac-
counts for any … weapon enhancement for the underlying
offense of conviction.” Id.
   Accordingly, by virtue of § 2K2.4, counts 1 and 3 did not
operate as specific offense characteristics of each other, and the
enhancements in §§ 2D1.1(b)(1) and 2K2.1(b)(6)(B) did not
apply. With this particular combination of offenses, the
otherwise applicable basis for grouping the drug-trafficking
and felon-in-possession counts dropped out of the case.
    The Eighth Circuit reached a contrary conclusion in United
States v. Bell, 477 F.3d 607 (8th Cir. 2007). Confronting the same
combination of counts that we address here, the court held that
“[g]rouping of the felon in possession count and the drug
count is proper even though the applicable [offense-character-
istic] enhancements are not utilized.” Id. at 615. The court
acknowledged that Application Note 4 to § 2K2.4 directs the
court not to treat the drug and felon-in-possession counts as
specific offense characteristics of each other when a § 924(c)
conviction is in the mix, but held “[n]onetheless” that “each
count includes conduct that is ‘treated as a specific offense
characteristic in’ the other offense, and therefore the counts
should be grouped.” Id. (quoting U.S.S.G. § 3D1.2(c)).
    To reach this conclusion, the Eighth Circuit relied on the
introductory comment to Part D of Chapter Three of the
guidelines, which explains that the grouping rules implement
a general policy of incremental punishment and seek to avoid
18                                                             No. 12-2604

unwarranted increases in punishment for the same essential
conduct: “Some offenses that may be charged in multiple-
count indictments are so closely intertwined with other
offenses that conviction for them ordinarily would not warrant
increasing the guideline range.” U.S.S.G. Ch. 3, pt. D, introduc-
tory cmt. Because the three counts in Bell were “closely
intertwined” and arose from the same course of conduct, the
Eighth Circuit concluded that the drug-trafficking and felon-in-
possession counts should be grouped.1 Bell, 477 F.3d at 616.
    With respect, we disagree with the Eighth Circuit’s inter-
pretation of the guidelines in this situation.2 The introductory
comment to the grouping guideline doesn’t alter the language
of the relevant offense guidelines. Section 3D1.2(c) provides
that grouping is required “[w]hen one of the counts embodies
conduct that is treated as a specific offense characteristic in, or
other adjustment to, the guideline applicable to another of the
counts.” U.S.S.G. § 3D1.2(c) (emphasis added). The guidelines
governing the application of offense characteristics are found
in Chapter Two of the Guidelines Manual. The relevant
Chapter Two guideline directs the court not to apply offense-
characteristic enhancements for firearm possession when a



1
  The Eighth Circuit does not apply Bell when the offenses are not “closely
intertwined.” See United States v. Espinosa, 539 F.3d 926, 930 (8th Cir. 2008)
(“Here, the district court did not apply a specific offense characteristic for
firearms possession when sentencing on Espinosa’s drug count, and the
record does not dictate a conclusion that the two offenses were closely
intertwined as in Bell.”).

2
 Because our decision creates a circuit split, we have circulated this opinion
to all judges in active service. See 7TH CIR. R. 40(e). A majority voted not to
hear this case en banc; Judges Posner and Williams voted to hear the case
en banc. Judge Williams has filed a dissent from the decision not to hear the
case en banc, which Judge Posner joins. Judge Flaum did not participate in
the consideration of this Rule 40(e) circulation.
No. 12-2604                                                     19

§ 924(c) conviction is in the sentencing mix. See id. § 2K2.4
cmt. n.4.
    The application notes to § 3D1.2 bolster this understanding
of how the grouping rule operates. Note 5 in particular sheds
light on this issue:
       Sometimes there may be several counts, each of
       which could be treated as an aggravating factor
       to another more serious count, but the guideline
       for the more serious count provides an adjust-
       ment for only one occurrence of that factor. In
       such cases, only the count representing the most
       serious of those factors is to be grouped with the
       other count. For example, if in a robbery of a
       credit union on a military base the defendant is
       also convicted of assaulting two employees, one
       of whom is injured seriously, the assault with
       serious bodily injury would be grouped with the
       robbery count, while the remaining assault
       conviction would be treated separately.
Id. § 3D1.2 cmt. n.5. In this example, even though the less
serious count could constitute a specific offense characteristic
and normally would in isolation, it is not grouped with the
other offenses because the offense-characteristic adjustment
does not apply in the particular circumstances of the case. This
confirms that grouping under § 3D1.2(c) depends on whether
a specific offense characteristic actually applies in a given case,
not whether it could apply as a general matter.
    In the specific circumstances of Sinclair’s case, the grouping
rule of § 3D1.2(c) does not apply. Counts 1 and 3—the drug-
trafficking and felon-in-possession counts—were not treated as
offense characteristics of each other and did not trigger
enhancements, even though they would be treated that way in
the absence of the § 924(c) conviction. By its terms, § 3D1.2(c)
20                                            No. 12-2604

does not apply, so we do not need to address the district
court’s more general conclusion that counts 1 and 3 cause
distinct harms and thus are not closely related. The court
properly declined to group the two counts.
                                                AFFIRMED.
No. 12‐2604                                                          21 

    WILLIAMS,  Circuit  Judge,  with  whom  POSNER,  Circuit 
Judge, joins, dissenting. This case should have been heard en 
banc.  The  sentencing  issue  presented  in  this  case  is  one  of 
great  importance  deserving  the  consideration  of  the  entire 
court.  Firearm  and  drug  offenses  are  charged  quite 
frequently  together,  so  the  panel’s  decision  will  affect  the 
sentencing of many defendants. And that effect will mean a 
higher  offense  level  which  will  often    lead  to  a  longer 
sentence.  On  the  merits,  I  agree  with  the  Eighth  Circuit’s 
decision  in  United States v. Bell,  477  F.3d  607  (8th  Cir.  2007), 
the  previous  interpretation  of  the  grouping  rules  in  this 
Circuit,  and  the  current  interpretation  within  other  Circuits 
that  have  addressed  the  issue.  That  is,  firearm  and  drug 
offenses  are  grouped,  even  when  a  §  924(c)  count  is  also 
charged.  Here,  because  counts  1  and  3  were  not  grouped, 
Sinclair’s  guidelines  range  increased  from  46‐57  months  to 
51‐63 months.  
    The  Guidelines  instruct  that  counts  must  be  grouped 
where “one of the counts embodies conduct that is treated as 
a specific offense characteristic in, or other adjustment to, the 
guidelines  applicable  to  another  of  the  counts.”  U.S.S.G.  § 
3D1.2(c).  Section  3D1.2(c)  does  not  require  that  the  conduct 
embodied in one count actually be used to enhance the other 
count. It just requires that the count embody conduct that is 
treated as a specific offense characteristic of the other, which 
it does in this case. Count 3 embodies conduct that is treated 
as  a  specific  offense  characteristic  of  count  1,  see  § 
2D1.1(b)(1), and count 1 embodies conduct that is treated as 
a  specific  offense  characteristic  of  count  3,  see  § 
2K2.1(b)(6)(B). So, these counts should be grouped based on 
the plain language of the Guidelines. 
   While  it  is  true  that  comment  4  to  §  2K2.4  instructs  the 
court  not  to  apply  these  reciprocal  offense‐characteristic 
enhancements,  §  2K2.4  says  nothing  about  whether  the 
22                                                     No. 12‐2604 

counts  should  be  grouped  or  not.  Section  3D1.2  is  the 
relevant provision addressing grouping and there is nothing 
in comment 4 to § 2K2.4 that makes § 3D1.2 inapplicable.  
    In  addition  to  the  plain  language,  the  rationale  behind 
grouping would particularly warrant its use in this situation. 
The  Guidelines  provide  for  grouping  certain  offenses  to 
“‘prevent  multiple  punishment  for  substantially  identical 
offense conduct.’” Bell, 477 F.3d at 614 (quoting U.S.S.G. Ch. 
3, pt.  D, introductory  cmt.).  Convictions on multiple  counts 
should  not  result  in  a  sentence  enhancement  unless  they 
represent additional conduct that is not otherwise accounted 
for by the guidelines. Id.; U.S.S.G. Ch. 3, pt. D, introductory 
cmt.  Sinclair  and  Bell  are  convicted  of  three  “‘closely 
intertwined’”  but  separate  offenses  arising  from  the  same 
conduct.  Bell,  477 F.3d at 616  (quoting U.S.S.G.  Ch. 3, pt.  D, 
introductory  cmt.).  “While  the  three  offenses  have  distinct 
elements,  they  do  not  ‘represent  additional  conduct  that  is 
not otherwise accounted for by the guidelines.’” Id. (quoting 
U.S.S.G.  Ch.  3,  pt.  D,  introductory  cmt.).  If  anything,  the 
policy  behind  grouping  applies  with  even  more  force  to 
defendants  like  Sinclair  and  Bell,  who  are  already  being 
sentenced to a mandatory 60 months for the § 924(c) count.  
    Furthermore,  disallowing  grouping  increases  the 
significance  of  the  formal  charging  decision,  which  is 
precisely  one  of  the  issues  grouping  was  intended  to 
address.  See  U.S.S.G.  Ch.  3,  pt.  D.,  introductory  cmt.  If  a 
defendant is being charged with drug trafficking and felon‐
in‐possession  offenses,  then  almost  always  the  government 
can  add  a  §  924(c)  count  for  possessing  a  firearm  in 
furtherance of a drug offense. Under the panel’s decision, the 
defendant  now  faces  a  higher  sentence  for  substantially  the 
same conduct, not just once (for the § 924(c) count), but twice 
(with no grouping).  
No. 12‐2604                                                          23 

    As  the  Bell  court  recognized,  grouping  of  firearm  and 
drug  offenses  happens  with  such  regularity  that  it  is  often 
done  without  note.  Bell,  477  F.3d  at  615.  Indeed,  Sinclair’s 
PSR  recommended  grouping.  In  United  States  v.  Gibbs,  395 
Fed.  Appx.  248  (6th  Cir.  2010)  (unpublished)  and  United 
States  v.  King,  201  Fed.  Appx.  715  (11th  Cir.  2006) 
(unpublished),  the  Sixth  and  Eleventh  Circuits 
acknowledged  that  drug  trafficking  and  felon‐in‐possession 
offenses  should  be  grouped  even  when  a  §  924(c)  count  is 
charged.  Neither  the  government  nor  the  panel’s  opinion 
points  to  any  cases  where  a  court  disallowed  grouping  of 
these  types  of  counts  because  a  §  924(c)  count  was  also 
charged.  I  see  no  reason  for  this  change  in  sentencing 
practice.    
   In  light  of  the  now‐circuit  split  on  this  issue,  the  United 
States Sentencing Commission should clarify its position on 
the role of comment 4 to § 2K2.4 in situations like this.  
   For these reasons, I dissent from the decision not to hear 
the case en banc.  
