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Sixth Circuit Vacates Sentence for Impermissible Triple-Counting of Guidelines Enhancements for Ungrouped Offenses

by Dale Chappell

The U.S. Court of Appeals for the Sixth Circuit held that enhancements under the U.S. Sentencing Guidelines (“USSG”) that were applied to all three counts of conviction that were ungrouped were impermissible triple counting, and contradicted the intent of the Guidelines’ grouping instructions.

Jermaine Clark committed three bank robberies (two in Michigan and one in Ohio), but he pleaded guilty to only two of them, i.e., the two Michigan robberies. And agreed to be sentenced as if he’d pleaded guilty to all three, with the Ohio robbery treated as a “Pseudo Count” for purposes of calculating his sentencing range. In connection with the final robbery in Ohio, he led police on a high-speed chase in Kentucky that ended with his car crashing into two other vehicles, resulting in serious injuries for one of the occupants.

His Guideline range for the car chase included two points for the chase, plus six points for the permanent injuries sustained in by the victim. This amounted to a base offense level of 35 for that offense. However, the presentence report recommended that each offense receive the same enhancements, even the two Michigan robberies that occurred on separate dates unrelated to the chase. Clark objected, but the U.S. District Court for the Western District of Michigan overruled his objection and sentenced him to five months short of 20 years in prison, the top of the Guidelines range. Clark appealed, arguing that applying the enhancements for the Kentucky chase to all the counts was impermissible “triple counting” under the Guidelines.

The Court agreed with Clark and began its discussion by explaining the procedure for applying the Guidelines, specifically the procedure for applying the “grouping guidelines” at issue in the present case: “First, find the appropriate offense conduct guideline in Chapter Two; second, apply any appropriate specific offense characteristics contained in the offense conduct guideline in Chapter Two; third, apply any appropriate adjustments from Chapter Three; fourth, repeat the first three steps for each count in a multiple count conviction and then apply the grouping guidelines in Chapter Three.” United States v. Young, 266 F.3d 468 (6th Cir. 2001) (citing USSG § 1B1.1(a)(1)-(4).

The grouping guidelines “provide[ ] rules for determining a single offense level that encompasses all the counts of which the defendant is convicted.” USSG Ch. 3, pt. D, intro. Comment. They instruct courts to group the counts that are “closely related,” find the offense level for each group, and then determine the combined offense level to all groups taken together by applying the rules in § 3D1.4. This provides the overall base offense level to determine the Guidelines’ range under the Sentencing Table in Chapter Five. § 3D1.5.

In United States v. Farrow, 198 F.3d 179 (6th Cir. 1999), the Sixth Circuit set out the analysis for double (and triple) counting enhancements under the Guidelines, instructing that “Double counting occurs when precisely the same aspect of a defendant’s conduct factors into his sentence in two separate ways.” But not all instances of double counting are prohibited. United States v. Fleischer, 971 F.3d 559 (6th Cir. 2020). “Even when the same conduct is technically applied to multiple counts in the district court’s calculation of a defendant’s Guidelines sentencing range, double-counting only occurs when the conduct actually factors into the defendant’s sentences in multiple ways,” the Court said. United States v. Eversole, 487 F.3d 1024 (6th Cir. 2007).

The Farrow Court identified two situations where double counting is permissible: where (1) “the sentencing Guidelines expressly mandate double counting … through the cumulative application of sentencing adjustments,” and (2) “where it appears that Congress or the Sentencing Commission intended to attach multiple penalties to the same conduct.”

Turning to the present case, the Court stated that it’s “indisputable” that Clark’s high-speed chase and infliction of serious injury to a victim during the chase were counted multiple times in calculating his Guidelines range because those two aspects of his conduct “were used to trigger the application of the same two enhancements to all three bank robbery counts.”

The Court then had to determine whether Clark’s conduct at issue actually factored into his sentence in multiple ways. His three robberies were not grouped because they did not involve the same harm, so the district court had to determine a “combined offense level” by counting each offense as a group and then assigning a unit to each group, depending on the adjusted offense level for each. § § 3D1.4. Since each group had an offense level of 32 (which included the eight points for the chase and resulting injuries), they each counted as a unit, totaling three units. Adding these three units to each base offense level, minus three points because he pleaded guilty, Clark’s adjusted offense level was 32.

But had the district court not counted the eight points for each offense (group), the other two robberies not connected to the chase would have been much lower. “Any group that is 5 to 8 levels less serious than the group with the highest offense level is only counted as one-half unit,” the Court explained. This would have been an overall offense level of 31 for Clark’s three offenses and would have been a significantly lower Guidelines range, the Court stated.

The Court concluded that the district court double (actually triple) counted the conduct at issue and that such double counting is impermissible because there’s no indication that the permissible instances of double counting under Farrow apply to this case. Thus, the Court ruled that “precisely the same two aspects of Clark’s conduct factored multiple times into his sentence.”

Accordingly, the Court vacated his sentence and remanded for “resentencing without application of the enhancements § 3C1.2 and § 2B3.1(b)(3)(C) to all three bank robbery counts.” See: United States v. Clark, 11 F.4th 491 (6th Cir. 2021). 

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