                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                   _______________________________

                              No. 01-20222
                   _______________________________


UNITED STATES of AMERICA,

                                                 Plaintiff-Appellee,

                                versus


JOSEPH CHIKE AGHOLOR,

                                                Defendant-Appellant.

         _________________________________________________

              Appeal from the United States District Court
                   for the Southern District of Texas
                              (H-00-CR-440)
         _________________________________________________
                             March 25, 2002

Before KING, Chief Judge, and REAVLEY, and WIENER, Circuit
Judges.

PER CURIAM*:

     Defendant-Appellant Joseph Chike Agholor appeals the district

court’s grouping of his guilty-plea convictions for sentencing

purposes.      Concluding that, pursuant to U.S.S.G. § 3D1.2, the

district court committed plain error in its sentencing calculation

and that it erred in grouping Agholor’s convictions into five

separate groups, we vacate and remand for resentencing consistent



     *
       Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
with this opinion.

                                     I.

                          FACTS AND PROCEEDINGS

     Agholor pleaded guilty to a seven count indictment charging

him with one count of illegal re-entry, one count of unlawful

procurement     of   naturalization,       three   counts   of    making   false

statements in passport applications, and two counts of fraud in

connection with identification documents: (1) Count 1 for illegally

reentering the United States in 1993 under the name Prince J.

Agholor,   in   violation   of   8   U.S.C.    §   1326;    (2)   Count    2   for

unlawfully procuring naturalization in 1996 under the name Prince

J. Agholor, in violation of 18 U.S.C. § 1425(b); (3) Count 3 for

fraudulent application for a passport in 1996 under the name Prince

J. Agholor, in violation of 18 U.S.C. § 1542; (4) Count 4 for

fraudulent application for a passport in 1998 under the name

Lawrence Burton, in violation of 18 U.S.C. § 1542; (5) Count 5 for

use of false identification to procure a passport under the name

Lawrence Burton, in violation of 18 U.S.C. § 1028(a)(4); (6) Count

6 for fraudulent application for a passport in 1998 under the name

Bernard J. Jackson, in violation of 18 U.S.C. § 1542; and (7) Count

7 for use of false identification to procure a passport under the

name Bernard J. Jackson, in violation of 18 U.S.C. § 1028(a)(4).1



     1
        Burton and Jackson are real persons; Prince J. Agholor is
an alias of the defendant’s creation.

                                       2
     Based    on   his    guilty-plea       convictions   and   past    criminal

history, the Presentence Report (the “PSR”) calculated Agholor’s

Criminal History Category (“CHC”) as III and his base offense level

as 12.      The probation officer arrived at this offense level by

using the base offense level of 8 for unlawfully entering the

country.2    He then added 4 levels for Agholor’s specific offense

characteristic —— namely, Agholor’s illegal re-entry after having

been previously deported for committing a felony.3              The PSR noted

that, although there were multiple conviction counts, all counts

were grouped together pursuant to U.S.S.G. § 3D1.2(b) and that only

the offense level for the violation with the highest base level

(here, illegal re-entry) would be used.

     The     government    filed   multiple      objections     to     the   PSR’s

recommended grouping of all seven counts into a single category.

The government argued that corralling all of the offenses into one

group severely misrepresented Agholor’s criminal conduct and that

Agholor’s theft of two identities to obtain three passports under

three aliases necessitated separate groups.           The probation officer

consistently maintained, however, that all of Agholor’s offenses

implicated the same societal harms, criminal objective, and victim,

and therefore should be grouped together.

     The district court rejected the PSR’s recommendation and


     2
         U.S.S.G. § 2L1.2(a).
     3
         U.S.S.G. § 2L1.2(b)(1)(D).

                                        3
devoted nearly all of the sentencing hearing to a discussion of the

grouping.   Initially, the district court appeared to consider the

option of placing Count 1 (illegal re-entry) in one group, Count 2

(unlawful naturalization procurement) in a second, Counts 3, 4, and

6 (the fraudulent passport applications) in a third group, and

Counts 5 and 7 (use of false identification) in a fourth.         The

government urged that Counts 3, 4, and 6 should not be grouped

together because three identities were used and because Lawrence

Burton and Bernard Jackson were two separate and identifiable

victims.    The court then entered into an extended colloquy with

defense counsel regarding whether all the offenses should be placed

into one group.   In the end, the court agreed with the government

and rejected defense counsel’s contention that all of Agholor’s

crimes had the same victim —— namely, society as a whole.

     The    district   court   coupled    the   false   identification

convictions with their respective passport application convictions

and settled on the following five groups: (1) Count 1; (2) Count 2;

(3) Count 3; (4) Counts 4 and 5; (5) Counts 6 and 7.         Based on

these five groups, the district court, on the advice of the

probation officer, added 5 levels to the offense level of 12 to

arrive at an offense level of 17.        The district court sentenced

Agholor to 37 months imprisonment, the maximum sentence for the

Guidelines range of 30-37 months for an offense level of 17 and a

CHC of III.

     Agholor timely appealed his sentence.       He contends that (1)

                                  4
society at large is the only victim of his crimes and hence the

violations should be conglomerated into one group; (2) at most, his

violations should be separated into three groups; and (3) the

district court plainly erred in calculating his combined offense

level at 17.

                                    II.

                                 ANALYSIS

A.   Standard of Review

      The district court’s decision to group counts together for

sentencing purposes vel non is a question of law that we review de

novo.4    The government concedes that Agholor’s contention that his

crimes should fall into one group is reviewed de novo; however, the

government     asserts    that   because    Agholor   never    raised      the

alternative    argument   that   his   convictions    should   at   most   be

separated into three groups, we should review that issue for plain

error. We disagree. Having adequately raised the general issue of

grouping during sentencing, and given this court’s de novo review

of the district court’s grouping decision, it is unduly rigid to

require Agholor to raise every other possible grouping permutation

to preserve those arguments for appeal.         Therefore we review the



      4
        United States v. Leonard, 61 F.3d 1181, 1185 (5th Cir.
1995) (“The issue of grouping counts for sentencing purposes is
generally a question of law subject to de novo review.         The
sentence will be upheld if it was imposed as a result of a correct
application of the guidelines to factual findings which are not
clearly erroneous.”) (citations and internal quotations omitted).

                                       5
entire issue of grouping, with all of its possible combinations,

under our de novo standard.

B.   Grouping of Agholor’s Convictions

      1.   Same Victim

      Citing U.S.S.G. § 3D1.2(b), Agholor contends that all his

convictions should be grouped together.    Section 3D1.2(b) states,

in relevant part:

      Groups of Closely Related Counts
      All counts involving substantially the same harm shall be
      grouped together into a single group. Counts involve
      substantially the same harm within the meaning of this
      rule:
      ...
      (b) When counts involve the same victim and two or more
            acts or transactions connected by a common
            objective or constituting part of a common scheme
            or plan.

Application Note 2 to this guideline rule clarifies:

      2.    The term “victim” is not intended to include
            indirect or secondary victims.     Generally, there
            will be one person who is directly and most
            seriously affected by the offense and is therefore
            identifiable as the victim. For offenses in which
            there are no identifiable victims (e.g., drug or
            immigration offenses, where society at large is the
            victim), the “victim” for purposes of subsections
            (a) and (b) is the societal interests that are
            harmed.   In such cases, the counts are grouped
            together when the societal interests that are
            harmed are closely related. Where the count, for
            example, involves unlawfully entering the United
            States and the other involves fraudulent evidence
            of citizenship, the counts are grouped together
            because the societal interest harmed (the interest
            protected by law governing immigration) are closely
            related. In contrast, where one count involves the
            sale of controlled substances and the other
            involves an immigration law violation, the counts
            are not grouped together because different societal

                                  6
           interests are harmed.      Ambiguities should be
           resolved in accordance with the purpose of this
           section as stated in the lead paragraph, ie., to
           identify and group “counts involving substantially
           the same harm.” (emphasis added).

     Grounded in these provisions, Agholor’s basic contention is

that his crimes of illegal re-entry, fraudulent procurement of

naturalization,     and     fraudulent   passport       applications   are

immigration crimes, and that all have the same victim —— society at

large.   Arguing that all the statutes relevant here protect the

integrity of the country’s borders and are designed to regulate

residence within, and travel outside, the United States, Agholor

insists that the interests at stake, although not identical, are

closely related, as required by the guideline application note.

     The government asserts in response that, even though society

at large is generally the victim of these offenses, Agholor’s

crimes   have   distinct    and   separate   victims.     The   government

contended, and the district court agreed, that the use of Burton’s

and Jackson’s identities made them individualized victims of the

passport and identification fraud counts. The government argues to

us that the district court’s finding that Burton and Jackson were

victims is a factual finding and thus cannot be reversed unless it

is clearly erroneous.      Even if this is so, it is irrelevant because

the larger question is whether the district court may, as a matter

of law, properly consider individuals as “victims” in the context

of U.S.S.G. § 3D1.2.

     Agholor’s argument that there can be no identifiable victims

                                     7
for these types of immigration crimes finds support in United

States v. Lara.5          In Lara, the district court granted an upward

departure pursuant to 5K2.3 (“Extreme Psychological Injury”) for a

defendant convicted of various counts of harboring and transporting

illegal         aliens.    Discussing      whether    the   psychological    damage

inflicted on an individual illegal alien was a permissible factor

for upward departure, a panel of this court noted:

       At the outset, application of section 5K2.3 to the
       instant offense would appear to be barred by the
       statement in application note 2 to section 3D1.2 that, in
       the case of an immigration offense, there is no
       identifiable victim.6

Ultimately, however, the panel decided the issue on insufficiency

of the evidence of harm rather than on the legal applicability of

individualized harm during an immigration offense.

       Under the discrete facts of this case, we need not consider

the    larger         question   whether     individuals       can   ever   be   the

identifiable victims of immigration crimes. Even assuming arguendo

that       in   the   instant    situation       immigration   crimes   could    have

identifiable victims, Burton and Jackson were at most “indirect or

secondary victims” as contemplated by the application note to §

3D1.2(b).         Thus, for purposes of this case, we conclude that the

only relevant victim of Agholor’s crimes was society at large.

Having so concluded, we must decide next whether the societal harms


       5
            975 F.3d 1120 (5th Cir. 1992).
       6
            Id. at 1127.

                                             8
implicated by Agholor’s crimes were “closely related.”

B.   Closely Related Interests

      The cases cited by the government in its brief are not

instructive on the precise question whether illegal re-entry,

unlawful procurement of naturalization, and passport application

fraud implicate closely related societal interests.7   Although it

seems clear, for example, that the societal interests affected by

illegal re-entry and illegal firearm possession are distinct (i.e.,

enforcing immigration laws versus protecting society from those

deemed unqualified to possess firearms), it is not at all clear

that re-entry, naturalization, and passport violations reach a

sufficient level of separateness to avoid classification as closely

related interests.

      Undaunted, the government insists that Agholor’s offenses

implicate distinct societal interests and cannot all be classified

as “immigration” violations. The government’s argument is not

wholly persuasive for at least four reasons.   First, the nature of

the societal interests at stake can always be manipulated and

defined at various levels of specificity or abstraction.       For


      7
        See United States v. Packer, 70 F.3d 357 (5th Cir. 1996)
(no plain error in district court’s finding that different
interests were implicated by passport fraud, structuring financial
transactions, concealing an individual from arrest, and social
security and mail fraud); United States v. Gallo, 927 F.2d 815 (5th
Cir. 1991) (societal interests harmed by drug trafficking and money
laundering not closely related); United States v. Salgado-Ocampo,
159 F.3d 322 (7th Cir. 1998) (convictions for illegal re-entry and
illegal alien in possession of a firearm could not be grouped).

                                 9
example, the PSR viewed all of Agholor’s crimes as implicating the

same       or   similar     societal      interest      ——    specifically,         “[t]his

defendant’s criminal objective was to violate the laws governing

immigration in order to be able to live within the United States

and    have     the    ability      to   travel    outside     the    United       States.”

Nevertheless, the government’s decision to define the societal

interests        for    each   of    Agholor’s       violations       narrowly       cannot

substitute as the basis of a legal standard on which this case

should be decided.

       Second,        the   guidelines     do     not   require       that    the    crimes

implicate the same societal interests; only that the interests be

“closely        related.”        Third,    the    structure      of     the    guidelines

indicates       that    illegal     re-entry,      naturalization,           and   passport

violations are indeed closely related:                       The sentencing for all

three types of violations are agglomerated in Chapter 2, Part L,

under the title “Offenses Involving Immigration, Naturalization,

and Passports.”8

       Finally, the guidelines contemplate the grouping of illegal

re-entry convictions with naturalization or passport fraud under

particular       circumstances.           Clarifying         U.S.S.G.    §    2L2.2,   the

Sentencing Guideline for fraudulently acquiring naturalization or

a passport, the Application Notes read, in relevant part:

       8
        The Application Notes to the guidelines in that section
also state “‘Immigration and naturalization offense’ means any
offense covered by Chapter Two, Part L.” See, e.g., U.S.S.G. §
2L2.1, n. 1.

                                            10
      1.     For purposes of this guideline—
             “Immigration and naturalization offense” means any
             offense covered by Chapter Two, Part L.
      2.     For the purposes of Chapter Three, Part D (Multiple
             Counts), a conviction for unlawfully entering or
             remaining in the United States (§ 2L1.2) arising
             from the same course of conduct is treated as a
             closely related count, and is therefore grouped
             with an offense covered by this guideline.9

Importantly, this guideline section not only indicates the close

relationship        of   the    societal      interests    harmed   by   Agholor’s

offenses,     but    also      calls   into     question   the   district   court’s

division of Counts 1, 2, and 3 into separate groups.

      Given the structure of the Guidelines and the implication of

the application notes, we are satisfied that the societal interests

implicated by Agholor’s conduct are sufficiently “closely related”

to require them to be classified as such.

C.   Common Criminal Objective/Common Scheme or Plan

      When, as here, the convictions involve (1) the same victim,

(2) closely related societal interests, and (3) two or more acts or

transactions, the grouping of the crimes requires that they be

“connected by a common criminal objective or constitut[e] part of

a common scheme or plan.”10            As with the other questions presented,

otherwise controlling case law does not shed much light on the

issue of what constitutes a common criminal objective or a common

scheme or plan.


      9
           U.S.S.G. § 2L2.2, n. 1-2.
      10
           U.S.S.G. § 3D1.2(b) (emphasis added).

                                           11
       These elastic grouping standards could lead to a variety of

grouping combinations.             Given the conclusions reached in our

foregoing discussion, however, we are convinced that from most

legal vantage points, this question is best answered with the

conclusion that Agholor’s crimes should be divided into three

groups.

       Segregating Agholor’s crimes into three groups is justified

under several different rationales.                  To our way of thinking, the

most prudent approach under these facts is to view Agholor as

having engaged in three sets of transactions.                        The first set

encompasses Counts 1, 2, and 3, starting with his illegal re-entry

into        the    United   States,      followed      by     his   procurement   of

naturalization and his application for a passport, all under the

pseudonym of Prince J. Agholor.11               The second set of transactions

encompasses Counts 4 and 5 and includes Agholor’s use of false

identification and application for a passport under the name

Lawrence Burton.          The third set of transactions encompasses Counts

6   and      7    and   includes   his   use    of    false    identification     and

application for a passport under the name Bernard Jackson.

       This grouping methodology is consistent with our conclusions

that (1) either the crimes here have no identifiable victims or the

alleged victims are secondary at most, and (2) Agholor’s crimes


       11
        This grouping of these three counts further supported by
Application note 2 to § 2L2.2. See supra note 9 and accompanying
text.

                                           12
implicate closely related interests. In addition, this methodology

jibes with the district court’s statement during sentencing that

Agholor’s      passport   applications       under     three   different    names

probably indicates distinct criminal objectives.

     Although we believe this to be the most cogent analysis, we

hasten    to   note   that     at   least    two    other   rationales    support

separation into three groups: a temporal assessment and a victim-

specific approach.        Temporally, Agholor’s crimes separate into

three    groups   based   on    the   timing   of     his   activities:    (1)   He

illegally re-entered the United States in 1993; (2) he procured

naturalization and applied for a passport under the name Prince J.

Agholor in late 1996; and (3) he used false identifications to

apply for passports under the names Lawrence Burton and Bernard

Jackson in March and April of 1998.                Thus, a straightforward but

simplistic temporal analysis would lead to the grouping of Count 1

by itself, Counts 2 and 3 together, and Counts 4, 5, 6, and 7

together —— different combinations but three groups nonetheless.

Under other circumstances a temporal assessment might be a more

viable and prudent approach than it is here.

     And, even if we were to have held that immigration crimes

could have separately identifiable, individual victims, and that,

in this case, Burton and Jackson were primary, as opposed to

incidental or secondary victims, we would still divide Agholor’s

crimes into three groups:             (1) Counts 1, 2, and 3 for harming

society under the alias Prince J. Agholor; (2) Counts 4 and 5 for

                                        13
harming Lawrence Burton; and (3) Counts 6 and 7 for harming Bernard

Jackson.

      With the multitude of possible combinations and permutations

in this aspect of sentencing, we refrain from mandating any one

manner of grouping counts for sentencing purposes.       As is typical

of many features of the Sentencing Guidelines, grouping is a

“slides and ladders” operation that ultimately must be resolved on

a case-by-case basis.     Each situation will be highly dependent on

its discrete facts, which sentencing courts should consider in

connection with the Sentencing Guidelines as a whole and with the

accompanying application notes.         As the case before us amply

demonstrates, there is no obvious, “right” methodology, and we

assiduously avoid any implication that there is.

C.   Plain Error in Offense Level Calculation

      Agholor also argues that the district court erred when it

added 5 offense levels to his base offense level of 12.     As Agholor

did not raise this objection during the proceedings in district

court,     we review it for plain error.12   We agree with Agholor that

the district court’s error in this regard is plain,13 because the



      12
        United States v. Martinez-Cortez, 988 F.2d 1408, 1410 (5th
Cir. 1993) (“When a new factual or legal error is raised for the
first time on appeal, plain error occurs whe[n] our failure to
consider the question results in manifest injustice.”) (citations
and internal quotations omitted).
      13
        The government also concedes that the district court erred
when it added 5 levels instead of 4.

                                   14
relevant guideline provision clearly states that when the number of

groups is 3 ½ to 5, the offense level should be increased by 4

levels, not 5 as imposed by the district court.14

     Given our conclusions regarding the grouping of Agholor’s

convictions and our remand on that issue, however, this point of

error is moot.   After Agholor’s convictions are divided into three

groups on remand, his base offense level must be increased by 3

levels, bringing his total offense level to 15. With Agholor’s CHC

of III and an offense level of 15, the applicable guidelines

sentencing range is 24 to 30 months imprisonment.   That will be the

starting point for the sentencing court on remand.

                                 III.

                              CONCLUSION

     For the foregoing reasons, we vacate Agholor’s sentence and

remand this case to district court for sentencing consistent with

this opinion.

VACATED and REMANDED.




     14
          U.S.S.G. § 3D1.4.

                                  15
