                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-5-1995

United States v Griswold
Precedential or Non-Precedential:

Docket 94-1979




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                             No. 94-1979


                    UNITED STATES OF AMERICA

                                  v.

                        GREGORY GRISWOLD,
                     a/k/a ROBERT SAUNDERS,
                  a/k/a JULIUS H. COLLIER, JR.,
                       a/k/a THEODORE COBB
                                Gregory Griswold,
                                        Appellant



         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                      (D.C. No. 94-cr-00083)


                    Submitted May 15, 1995
                BEFORE: COWEN, LEWIS and GARTH
                        Circuit Judges

                     (Filed    June 5, l995 )


Nancy B. Winter
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

          COUNSEL FOR APPELLEE
          UNITED STATES OF AMERICA


James M. Becker
Saul, Ewing, Remick & Saul
3800 Centre Square West
Philadelphia, PA 19102

          COUNSEL FOR APPELLANT
          GREGORY GRISWOLD
                                         OPINION
COWEN, Circuit Judge.


            In this appeal, we are asked to decide whether the

district court erred: (1) in ruling that eight firearm counts in

the indictment formed five separate groups under U.S.S.G. §

3D1.2, instead of a single group; and (2) when, in sentencing the

defendant under the more favorable 1990 sentencing guidelines, it

failed to accord the defendant an additional point for acceptance

of responsibility as is permitted under § 3E1.1 pursuant to the

1993 sentencing guidelines.    Because we conclude that the

district court did not err in applying and interpreting the

Sentencing Guidelines, we will affirm the sentence of appellant

in all respects.



                 I. FACTUAL AND PROCEDURAL HISTORY

            Between May 22, 1989 and June 26, 1991, appellant

Gregory Griswold ("Griswold") purchased seven firearms from a

licensed firearms dealer in Philadelphia.    Specifically, he

purchased two firearms on May 22, 1989, two more on August 8,

1989, and one each on October 6, 1989, March 4, 1991, and June

26, 1991.    On the first three occasions, Griswold used the

fictitious name of "Julius H. Collier, Jr."    The last two times

he used the name "Robert Saunders."    For each firearm, he

completed the standard "Firearms Transaction Record" of the

Bureau of Alcohol, Tobacco, and Firearms.    On the form, he
misrepresented that he had never been convicted in any court of a

crime punishable by imprisonment for a term exceeding one year,

when, in fact, he had previously been convicted of third degree

homicide.    On July 11, 1991, Philadelphia Police Officers, while

executing a search warrant at a residence in Philadelphia, found

Griswold in possession of two of the illegally purchased

firearms.

            On February 23, 1994,1 a federal grand jury in the

Eastern District of Pennsylvania returned an indictment charging

Griswold with seven counts of making false statements to a

licensed dealer in connection with the acquisition of a firearm,

in violation of 18 U.S.C. § 922(a)(6), and one count of unlawful

possession of firearms by a previously convicted felon, in

violation of 18 U.S.C. § 922(g)(1).2      Griswold entered into a
1
 . The delay between the initial arrest and the indictment of
Griswold was due to the fact that he remained a fugitive for more
than two years.
2
.     The indictment charged Griswold as follows:

    COUNT       DATE OF      FIREARM        ALIAS USED   OFFENSE
                OFFENSE
    One         5-22-89      Intratec       Julius       False
                             9mm. semi-     Collier,     statement
                             auto           Jr.
    Two         5-22-89      Colt .380      Julius       False
                             semi-auto      Collier,     statement
                                            Jr.
    Three       8-8-89       Sig Sauer      Julius       False
                             .380 semi-     Collier,     statement
                             auto           Jr.
    Four        8-8-89       Colt .380      Julius       False
                             semi-auto      Collier,     statement
                                            Jr.
plea agreement with the government and on May 16, 1994, he

entered a plea of guilty to all eight counts.     The plea agreement

contained several stipulations relevant to the computation of

Griswold's sentencing guideline range.     Because the Commission

had amended § 2K2.1 after Griswold committed the charged

offenses, the 1993 version would have resulted in a harsher

sentence than the version in effect when he committed the

offenses, raising a possible ex post facto challenge.    Both

parties agreed that the version of U.S.S.G. § 2K2.1 effective

November 1, 1990 was the applicable guideline for determining the

offense level of the firearms offenses.3    The parties further

(..continued)
    Five        10-6-89    Beretta         Julius      False
                           .380 semi-      Collier,    statement
                           auto            Jr.
    Six         3-4-91     Beretta .25     Robert      False
                           semi-auto       Saunders    statement
    Seven       6-26-91    Glock 9mm.      Robert      False
                           semi-auto       Saunders    statement
    Eight       7-11-91    same as         Robert      Felon in
                           counts 5        Saunders    possession
                           and 6


3
 . All parties agree that the "stipulations [were] not binding
upon either the Probation Department or the Court." App. at 20.
We further recognize that despite this stipulation, Griswold
properly preserved for appeal his right to argue that the 1993
guidelines should be applied so that he may gain the benefit of
one extra point for acceptance of responsibility pursuant to §
3E1.1. This argument was not waived because at the time of the
stipulation, the parties agreed that Griswold would be entitled
to a maximum of two points for acceptance of responsibility. The
issue of the extra point did not arise until after the district
court, exercising its discretion, disregarded that portion of the
plea agreement which grouped all eight offenses as one. See
infra part IV.A. for discussion of the grouping of the offenses
stipulated that the eight firearms offenses constituted a single

group under U.S.S.G. § 3D1.2.4

            However, over Griswold's objection at sentencing, the

probation office concluded and the district court agreed, that

the application of U.S.S.G. § 3D1.2 to the eight firearms

offenses yielded five separate groups, not a single group as the

parties had stipulated.   As a result of the district court's

grouping of the firearms offenses into five groups, Griswold's

offense level was increased to 17, which would have made him

eligible for a three-level reduction for acceptance of

responsibility under § 3E1.1 of the 1993 guidelines.     However,

the district court concluded that the 1990 version of § 3E1.1 was

controlling and granted only a two-level reduction.    This appeal

followed.




(..continued)
and part IV.C. for discussion of the applicability of the 1993
guidelines.
4
 . Both parties maintain that the plea agreement provided that
all eight offenses would be grouped as one pursuant to § 3D1.2.
Although the plea agreement states,"[t]he government and the
defendant agree and stipulate that the offenses group for the
purposes of sentencing pursuant to U.S.S.G. § 3D1.2," App. at
20, it does not explicitly state that all of the offenses will be
grouped into one group. Because such ambiguous language lends
itself to a variety of interpretations, we believe that the
better practice in drafting plea agreements is to explicitly
state how many groups will be formed as a result of "grouping."
As evidenced by the district court's decision in this matter, it
is not always the case that grouping under § 3D1.2 will yield
only one group.
                         II. JURISDICTION

           The district court had jurisdiction to entertain this

criminal matter pursuant to 18 U.S.C. § 3231 insofar as the

defendant was charged with offenses against the laws of the

United States under 18 U.S.C. §§ 922(a)(6), 924(a), and

922(g)(1).   Our jurisdiction is premised on 28 U.S.C. § 1291

(appeal from a final judgment of a district court) and 18 U.S.C.

§ 3742(a)(2) (appeal from a final sentence).



                     III. STANDARD OF REVIEW

                A district court's application and interpretation

of the Sentencing Guidelines is subject to plenary review.

United States v. Mobley, 956 F.2d 450, 451-52 (3d Cir. 1992); see

United States v. Riviere, 924 F.2d 1289, 1304 (3d Cir. 1991)

(construction of § 3D1.2 is a legal issue subject to plenary

review).   However, a determination of whether various offenses

are part of one overall scheme is essentially a factual issue

which we review under a clearly erroneous standard.     United

States v. Cusumano, 943 F.2d 305, 313 (3d Cir. 1991), cert.

denied, 502 U.S. 1036, 112 S. Ct. 881 (1992) (citing United
States v. Ortiz, 878 F.2d 125, 126-27 (3d Cir. 1989).    Finally,

when reviewing the appropriateness of a grouping, deference must

be given to the district court.   United States v. Seligsohn, 981

F.2d 1418, 1426 (3d Cir. 1994), cert. denied, __ U.S. __, 115 S.

Ct. 1143 (1995) (citing United States v. Beard, 960 F.2d 965, 969

(11th Cir. 1992)).
                            IV. DISCUSSION

                A.   Groups of Closely Related Counts

          Griswold maintains that the district court erred in its

application of the multiple count rules under § 3D1.2 of the

Sentencing Guidelines by concluding that the eight firearms

counts in the indictment made up five separate groups, instead of

one group, as the parties had earlier stipulated.       Section 3D1.2

of the 1990 United States Sentencing Guidelines stated in

relevant part:
          All counts involving substantially the same
          harm shall be grouped together into a single
          Group. Counts involved 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 criminal objective
                or constituting part of a common scheme
                or plan.

          (c)   When 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.

          (d)   When 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, or if the
                offense behavior is ongoing or
                continuous in nature and the offense
                guideline is written to cover such
                behavior.
U.S.S.G. § 3D1.2(b)-(d) (1990).     Griswold argues that § 3D1.2(b),

(c) and (d) each require grouping of the eight firearms offenses

into a single group.



                       1.   U.S.S.G. § 3D1.2(b)

          Griswold asserts that the initial inquiry under §

3D1.2(b) is whether the counts involve the same victim.    In the

commentary to § 3D1.2, application note 2 indicates that, "[f]or

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 interest that is harmed."     U.S.S.G. § 3D1.2, comment,

n.2 (1993).5   Griswold concludes that the firearms offenses to

which he pleaded guilty harmed no specific person, but rather

offended society at large.     He notes that 18 U.S.C. § 922(a)(6)

(making false statements to a dealer in connection with the

acquisition of firearms) and 18 U.S.C. § 922(g)(1) (unlawful

possession of firearms by a previously convicted felon) are part

of a comprehensive scheme to promote the societal interest in

combatting the criminal use of firearms by deterring sales to
5
 . As noted earlier, both parties concede and the district court
agreed that the 1990 version of the sentencing guidelines should
be applied in calculating Griswold's sentence. However, as noted
in § 1B1.11 of the sentencing guidelines, "if a court applies an
earlier edition of the Guidelines Manual, the court shall
consider subsequent amendments, to the extent that such
amendments are clarifying rather than substantive changes."
U.S.S.G. § 1B1.11 (1993). Although the commentary and
application notes from 1990 and 1993 are substantially similar,
we will refer to the 1993 commentary and application notes when
it is instructive to do so.
specified classes of persons, including convicted felons.

Griswold next argues that because the societal interests

underlying both laws are similar and because society is the

victim, all of the offenses must be grouped together.

           In support of his argument that § 3D1.2(b) requires all

these offenses to be grouped into a single group, Griswold cites

United States v. Riviere, 924 F.2d 1289 (3d Cir. 1991).     In that

case, we were faced with the question of proper grouping as to

three firearms-related counts which arose from the same incident

or conduct:   possession of a firearm by a convicted felon,

illegal delivery of the same firearm, and the possession of the

firearm with an obliterated serial number.   Id. at 1303.   In

deciding whether these offenses should be grouped, this court

referred to the commentary to § 3D1.2(d) of the 1990 sentencing

guidelines which provided that sentence enhancement should not

result from multiple counts unless they represent additional

conduct.   Id. at 1305.   We concluded that because no additional

conduct was represented by the additional counts, it was

appropriate to group all of the firearms-related offenses.       Id.

at 1306.

           Unlike the situation present in Riviere, Griswold's
multiple counts encompassed numerous instances of illegal conduct

-- purchases and possession of eight semi-automatic handguns

spanning in excess of two years.   We remain unconvinced that the

Sentencing Commission contemplated grouping these offenses.       To

do so would reward Griswold, who made discrete purchases of
firearms over a substantial period of time, by punishing him the

same as an offender who made one purchase.

            Furthermore, in analyzing "the societal interest that

is harmed," we find application note 4 to be instructive:
          Subsection (b) provides that counts that are
          part of a single course of conduct with a
          single criminal objective and represent
          essentially one composite harm to the same
          victim are to be grouped together, even if
          they constitute legally distinct offenses
          occurring at different times. This provision
          does not authorize the grouping of offenses
          that cannot be considered to represent
          essentially one composite harm (e.g., robbery
          of the same victim on different occasions
          involves multiple, separate instances of fear
          and risk of harm, not one composite harm) . .
          . . The defendant is convicted of two counts
          of rape for raping the same person on
          different days. The counts are not to be
          grouped together.


U.S.S.G. § 3D1.2, comment, n.4 (1993) (emphasis in original).

The Sentencing Commission, in its wisdom, saw fit to decide that

multiple counts of rape or robbery not be grouped together when

dealing with the same victim.    Because each time Griswold

illegally acquired a firearm there was a separate and distinct

fear and risk of harm to society, we hold that his illegal

purchase of firearms on multiple occasions should not be grouped

together.



                      2.   U.S.S.G. § 3D1.2(c)

            Next, Griswold argues that even assuming arguendo the

offenses should not be grouped under § 3D1.2(b), they should be

grouped under § 3D1.2(c).    Griswold notes that his status as a
previously convicted felon is an essential element of the offense

of possession of a firearm by a previously convicted felon and a

factor in setting the base offense level of the counts involving

false statements in connection with the acquisition of a firearm.

He concludes that the counts should be grouped as one because

"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."    (quoting U.S.S.G. §

3D1.2(c) (1990)).    However, as noted by the probation office, no

conduct embodied in one of the counts is used as a specific

offense characteristic in the determination of the offense level

for another count.    Griswold's status as a convicted felon is

implicated in establishing the base offense level for each

offense.    However, no separate conduct by Griswold resulted in

double counting.    Further, where there was some overlapping of

counts, i.e., where the firearms involved in the count charging

the defendant with illegal possession of the firearms (count

eight) were also involved in counts charging false statements

(counts six and seven), the court did group those counts

together.



                      3.   U.S.S.G. § 3D1.2(d)
            Last, Griswold contends that all of the offenses should

be grouped together pursuant to § 3D1.2(d).      He asserts that the

firearms offenses were "ongoing and continuous" because they were

part of the same criminal plan, and they all involved his felon

status as an essential element.    He refers to the commentary of §
3D1.2(d) which states that "firearm offenses" are among those to

be grouped together and points to an example which provides

grouping for a "defendant [who] is convicted of three counts of

unlicensed dealing in firearms."    U.S.S.G. § 3D1.2, comment, n.6

(1993).    Griswold maintains that the multiple counts of §

922(a)(6) and § 924(a) (making false statements in connection

with acquisition of a firearm) to which he pled guilty should be

grouped together just as "three counts of unlicensed dealing in

firearms" would be grouped together pursuant to §3D1.2(d).

            We note that the guideline stipulated to in the instant

case, § 2K2.1 (1990),6 does not provide for multiple violations,

nor does it provide a means of accounting for more than one

firearm.   In contrast, § 2K2.2 (1990),7 which is specifically

delineated as an offense that should group pursuant to subsection

(d), makes provisions for incremental increases in offense levels

based upon the number of firearms involved.    It is to § 2K2.2

that the commentary speaks when it states that "most . . .

firearms 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, comment, n.6

(1990).    A defendant convicted of three counts of unlicensed

dealing in firearms (conduct covered by U.S.S.G. § 2K2.2) has

6
 . Section 2K2.1 of the 1990 U.S.S.G. deals with the "Unlawful
Receipt, Possession, or Transportation of Firearms or
Ammunition."
7
 . Section 2K2.2 of the 1990 U.S.S.G. deals with "Unlawful
Trafficking and Other Prohibited Transactions Involving
Firearms."
necessarily been punished in relation to the number of weapons

involved, and thus grouping of the offenses would be appropriate.

Because the guideline applicable in Griswold's case is U.S.S.G. §

2K2.1, and not § 2K2.2, the underlying offense is not a crime

that must be grouped pursuant to § 3D1.2(d).   Stated differently,

multiple counts of illegal acquisition of a firearm (punishable

under § 2K2.1) need not be grouped simply because "three counts

of unlicensed dealing in firearms" (punishable pursuant to §

2K2.2) must be grouped pursuant to § 3D1.2(d).8



      B.   Government's Failure to Adhere to Plea Agreement

           As an ancillary argument to his claim that the district

court erred in failing to group the firearms offenses into one

group, Griswold contends that "the government made what was at

best a lukewarm endorsement of the stipulation it made as part of

the plea agreement."9   Griswold cites United States v. Badaracco,

8
 . In the 1991 guidelines version and henceforth, the Sentencing
Commission consolidated the 1990 version of U.S.S.G. §§ 2K2.1,
2K2.2, and 2K2.3 into the newly constructed § 2K2.1. At the same
time, although U.S.S.G. § 2K2.1 was not previously specifically
designated as an offense subject to grouping pursuant to §
3D1.2(d) in the 1990 guidelines, in the 1991 and later guidelines
versions it was so specifically designated. Thus, while
Griswold's offenses should not be grouped pursuant to § 3D1.2(d)
(1990), under § 3D1.2(d) (1993) the offenses must be grouped
together. However, even if Griswold's offenses were grouped
under the 1993 version, his sentence would still be more than if
he was sentenced, but not grouped, under the 1990 version. We
will assume that given the choice, Griswold would still opt to be
sentenced under the 1990 guidelines.
9
 . Griswold points to the following portion of the sentencing
hearing to illustrate that the government did not fulfill its
obligations under the plea agreement:
(..continued)
Mr. Becker:     [T]here was a guilty plea reached
                in writing where both parties, the
                Government and Mr. Griswold, agreed
                that Counts 1 through 8 of the
                indictment constitute a single
                group for purposes of application
                of this rule.

          . . . .

AUSA Winter:    Your Honor, the Government does
                have to concede that both counsel
                and I may have been in error in our
                stipulation as to the grouping.
                However, at the same time, the
                Government recognizes that we did
                the stipulation with the defendant
                and to some degree, if there is
                support -- albeit, a generous
                interpretation of that support --
                if there is support for that
                interpretation, I believe the Court
                would be within its bounds to find
                the offense level in accord with
                the stipulation.

                I say that because I don't think
                that the Probation Department is
                wrong in their grouping and I don't
                wish to suggest that they are. But
                at the same time, the Government
                recognizes that groupings are a
                factor that are usually best left
                to the discretion of the trial
                court, who makes factual
                determinations and that there is, I
                guess, some room for -- for
                movement or some room for
                interpretation on how those are
                grouped.

                I am in accord with the defense
                that there is an Eastern District
                of Pennsylvania opinion that does
                lend support to his argument,
                Pellowitz. There is a distinction
                in that case from the instant case,
                that is, it involved a dealer of
                firearms, which involved a
954 F.2d 928 (3d Cir. 1992), for the proposition that the

government is not permitted to make statements that effectively

undermine guidelines stipulations it enters under U.S.S.G. §

6B1.4 as part of a plea agreement.    In that case, the government

stipulated that the defendant's conduct did not involve more than

minimal planning.   The probation office, however, found that the

defendant's offense did involve more than minimal planning and

recommended a two point enhancement in the base offense level, to

which the district court agreed.     Id. at 938-39.   On appeal, the

defendant argued that statements made by the government at
(..continued)
                different guidelines section and,
                in fact, one that is specifically
                included in 3D1.2 Group D for
                grouping, whereas the guideline in
                this offense was not specifically
                included in Section D of 3D1.2.

                I guess I don't want to -- I guess
                I'm trying to be very frank with
                the Court, because I am requesting
                an upward departure of the
                defendant and the Government does
                not wish to seem unseemly and seize
                upon any opportunity to justify a
                higher level by first agreeing to
                stipulate with the defendant and
                then turn around and say, you know
                what, I was wrong and you're -- and
                you're stuck with a higher
                guidelines level and I'm going to
                upwardly depart. I -- I want to be
                fair to the defendant and in -- in
                bending over backwards to be fair
                and giving a very generous
                interpretation to this, I think the
                Court could find all of the
                grouping.

App. at 26-28 (emphasis added).
sentencing were violative of the plea agreement because the

government's conduct was inconsistent with what he understood

when entering the plea of guilty.   Id. at 939.   We concluded

that:
          The comment by the attorney for the
          government that "there was an affirmative
          step taken by [the defendant] indicating that
          he was concealing something" provided the
          district court with a basis to reject the
          government's stipulation in its plea
          agreement and to adopt the probation
          department's recommendation that there was
          more than minimal planning by [the
          defendant]. We therefore agree with [the
          defendant] that the government violated the
          spirit, if not the letter, of the plea
          agreement.


Id. at 940 (footnote omitted).

          In the case before us, the government was not trying to

urge the district court to adopt the recommendation of the

probation office.   Quite the contrary, the government was simply

pointing up to the court an obvious conflict which existed

between the plea agreement and the probation report, and

explaining to the court why it would be "within its bounds to

find the offense level in accord with the stipulation" in the

plea agreement.   Because we conclude that Badaracco is
distinguishable and we find that the government's conduct at

sentencing was not inconsistent with the terms of the plea

agreement, we will not remand this case for resentencing.

          Additionally, Griswold argues that the government on

appeal has totally repudiated the stipulation upon which he

relied in entering the plea agreement.   However, we note that the
plea agreement specifically provided that, "[n]othing in this

agreement shall limit the government in its comments in, and

responses to, any post-sentencing matters."      App. at 18.   Thus,

the government did not act contrary to the plea agreement when,

on appeal, it argued that the district court did not err in

grouping the offenses into five separate groups.10



                      C.   The "One Book Rule"

          As part of the calculation of Griswold's sentence, the

district court granted the two-level reduction for acceptance of

responsibility available under the 1990 guidelines.     See U.S.S.G.

§ 3E1.1(a) (1990).   Griswold now argues that the district court

erred because it did not grant him a three-level downward

adjustment -- the maximum reduction available for acceptance of

responsibility under the 1993 version of the guidelines.       Section

1B1.11 of the United States Sentencing Guidelines states in

relevant part:


10
 . Additionally, the government reserved its right to argue
contrary to the stipulation on appeal:

AUSA Winter:     Your honor, I just want to note for
                 the record that by conceding that
                 the defense's argument on the
                 grouping issue had some merit, the
                 Government is not waiving its right
                 to argue subsequently on appeal,
                 that your Honor was not in error by
                 grouping as you did. I simply
                 wanted to state that for the
                 record.

App. at 119.
          (a)   The court shall use the Guidelines
                Manual in effect on the date that
                the defendant is sentenced.

          (b)(1) If the court determines that use of
          the Guidelines Manual in effect on the date
          that the defendant is sentenced would violate
          the ex post facto clause of the United States
          Constitution, the court shall use the
          Guidelines Manual in effect on the date that
          the offense of conviction was committed.

             (2) The Guidelines Manual in effect on a
          particular date shall be applied in its
          entirety. The court shall not apply, for
          example, one guideline section from one
          edition of the Guidelines Manual and another
          guideline section from a different edition of
          the Guidelines Manual. However, if a court
          applies an earlier edition of the Guidelines
          Manual, the court shall consider subsequent
          amendments, to the extent that such
          amendments are clarifying rather than
          substantive changes.


U.S.S.G. § 1B1.11 (1993).   Thus, Griswold maintains that the

district court violated the mandate of § 1B1.11(a) which requires

application of the 1993 guidelines.   However, because the use of

the § 2K2.1 would violate the ex post facto clause, the district

court applied the 1990 guidelines and then chose to follow §

1B1.11(b)(2) when calculating the number of points for acceptance

of responsibility under § 3E1.1.11

          The question before the court is whether § 1B1.11(b)(2)

(the "one book rule") supersedes § 1B1.11(a) (use guidelines

effective on the date of sentencing) when the court is forced

11
 . As indicated above, § 1B1.11(b)(2) requires that only one
guideline manual should be applied to any given sentencing. This
rule has become known in sentencing guidelines parlance as the
"one book rule."
because of ex post facto reasons to use an earlier version of the

guidelines.   Quite recently, in United States v. Corrado, __ F.3d

__, No. 93-2086, 1995 WL 262608 (3d Cir. May 8, 1995), we had the

opportunity to decide this very issue.      In adopting the "one book

rule" and bringing the Court of Appeals for the Third Circuit in

conformity with the majority of other courts of appeals, we held:
          [§ 1B1.11(b)(2)] expressly prohibits district
          courts from doing precisely what [the
          defendant] suggests the district court here
          should have done -- namely, to mix and match
          provisions from different versions of the
          guidelines in order to tailor a more
          favorable sentence. Because of its
          prohibitive nature, as well as the fact that
          we believe applying various provisions taken
          from different versions of the guidelines
          would upset the coherency and balance the
          Sentencing Commission obviously intended in
          promulgating the guidelines, we conclude that
          section § 1B1.11(b)(2) is binding and, as
          such, was properly followed by the district
          court in this case.


Corrado, 1994 WL 262608, at *2 (citation omitted).     Because

Corrado is directly on point, we will affirm the district court's

application of the "one book rule."



                          V.   CONCLUSION

          We conclude that the district court did not err in

applying and interpreting the Sentencing Guidelines, and we will

affirm the sentence of Griswold in all respects.
