No. 99-8576 

In the Supreme Court of the United States 

PAUL L. GLOVER, PETITIONER 

v. 

UNITED STATES OF AMERICA 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SEVENTH CIRCUIT 

BRIEF FOR THE UNITED STATES 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 
JAMES K. ROBINSON 

Assistant Attorney General 
MICHAEL R. DREEBEN 

Deputy Solicitor General 
MATTHEW D. ROBERTS 

Assistant to the Solicitor 

General 
JOEL M. GERSHOWITZ 

Attorney 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether petitioner was denied effective assistance of 
counsel because his lawyer did not argue that his money 
laundering offenses should be grouped with his labor 
racketeering offenses to calculate his sentencing range under 
the Sentencing Guidelines. 

(I) 

TABLE OF CONTENTS 

Page 

Opinion below .................................................................................. 
1 

Jurisdiction ...................................................................................... 1 

Statutory and guidelines provisions involved .......................... 

1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 

7 

Argument: 

Counsel’s failure to argue that petitioner’s money 
laundering and racketeering offenses should be 
grouped under the Sentencing Guidelines did not 

constitute ineffective assistance .......................................... 

11 

A. Strickland v. Washington governs claims of 
ineffective assistance of counsel at noncapital 

sentencing and appeal .................................................... 

11 

B. Counsel’s failure to argue that petitioner’s 
money laundering and racketeering offenses 

should be grouped was not deficient per- 
formance ........................................................................... 24 

C. Petitioner was not prejudiced by counsel’s 

failure to raise the grouping claim ............................... 
35 

Conclusion ....................................................................................... 49 

Appendix ......................................................................................... 1a 

TABLE OF AUTHORITIES 

Cases: 

Allen v. United States, 175 F.3d 560 (7th Cir.), cert. 
denied, 120 S. Ct. 432 (1999) ................................................ 
22 

Argersinger v. Hamlin, 407 U.S. 25 (1972) ....................... 
20 

Arredondo v. United States, 178 F.3d 778 (6th 

Cir. 1999) ................................................................ 
13, 14, 23, 29 

Auman v. United States, 67 F.3d 157 (8th Cir. 
1995) ..................................................................................... 
14, 17 

Baldwin v. New York, 399 U.S. 66 (1970) ......................... 21 

(III) 

IV 

Cases—Continued: Page 

Burns v. United States, 501 U.S. 129 (1991) ..................... 
13 

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 
(1984) ........................................................................................ 24 

Dunham v. Kisak, 192 F.3d 1104 (7th Cir. 1999) ............. 

34 

Durrive v. United States, 4 F.3d 548 (7th Cir. 
1993) ............................................................... 

5, 8, 18, 19, 20, 21 

Evitts v. Lucey, 469 U.S. 387 (1985) ............................... 
13, 20 

Gideon v. Wainwright, 372 U.S. 335 (1963) ....................... 
13 

Gray v. Greer, 800 F.2d 644 (7th Cir. 1986) ........................ 
15 

Hill v. Lockhart, 474 U.S. 52 (1985) ......................... 
11-12, 15 

Hill v. United States, 368 U.S. 424 (1962) ....................... 
8, 16 

Janvier v. United States, 793 F.2d 449 (2d Cir. 
1986) ......................................................................................... 14 

Jones v. Barnes, 463 U.S. 745 (1983) ..................... 

9, 14, 26, 27 

Jones v. United States, 178 F.3d 790 (6th Cir.), 
cert. denied, 120 S. Ct. 335 (1999) ....................................... 
17 

Kimmelman v. Morrison, 477 U.S. 365 (1986) ............. 
12, 23, 

35, 38 

Knight v. United States, 37 F.3d 769 (1st Cir. 1994) ....... 
17 
Koon v. United States, 518 U.S. 81 (1996) ..................... 
12, 37 

Lebron v. National R.R. Passenger Corp., 513 U.S. 
374 (1994) ................................................................................. 
24 

Lilly v. Gilmore, 988 F.2d 783 (7th Cir.), cert. denied, 
510 U.S. 852 (1993) ................................................................ 
29 

Lockhart v. Fretwell, 506 U.S. 364 (1993) ............... 
8, 18, 39 

Martin v. United States, 109 F.3d 1177 (7th Cir. 1996), 
cert. denied, 522 U.S. 931 (1997) ................ 

5, 6, 18, 20, 21, 22 

Mempa v. Rhay, 389 U.S. 128 (1967) ............................. 
12, 20 

Michel v. Louisiana, 350 U.S. 91 (1955) ............................ 
26 

Nichols v. United States, 511 U.S. 738 (1994) .................. 
22 

Orsini v. Wallace, 913 F.2d 474 (8th Cir. 1990), 
cert. denied, 498 U.S. 1128 (1991) ....................................... 
34 

Parks v. United States, 832 F.2d 1244 (11th Cir. 
1987) ......................................................................................... 17 

Penson v Ohio, 488 U.S. 75 (1988) ...................................... 

13 

Powell v. Alabama, 287 U.S. 45 (1932) .............................. 13 

V 

Cases—Continued: Page 

Reece v. United States, 119 F.3d 1462 (11th Cir. 
1997) ......................................................................................... 14 

Reed v. Farley, 512 U.S. 339 (1994) ................................... 

16 

Roe v. Flores-Ortega, 120 S. Ct. 1029 (2000) .......... 
12, 15, 35 

Scott v. United States, 997 F.2d 340 (7th Cir. 
1993) ......................................................................................... 17 

Smith v. Murray, 477 U.S. 527 (1986) ......... 

12, 26, 27, 29, 34 

Smith v. Robbins, 120 S. Ct. 746 (2000) ......................... 
12, 14, 

15, 26, 27, 32, 35 

Smullen v. United States, 94 F.3d 20 (1st Cir. 
1996) ......................................................................................... 14 

Spriggs v. Collins, 993 F.2d 85 (5th Cir. 1993) ................. 
20 

Strickland v. Washington, 466 U.S. 668 (1984) .......... 
passim 

Strickler v. Greene, 527 U.S. 263 (1999) ............................. 
36 

United States v. Breckenridge, 93 F.3d 132 
(4th Cir. 1996) ..................................................................... 
14, 35 

United States v. Cusumano, 943 F.2d 305 (3d Cir. 
1991), cert. denied, 502 U.S. 1036 (1992) ................... 
30-31, 45 

United States v. Essig, 10 F.3d 968 (3d Cir. 1993) .......... 
17 

United States v. Ford, 918 F.2d 1343 (8th Cir. 
1990) ......................................................................................... 35 

United States v. Fuente-Kolbenschlag, 878 F.2d 
1377 (11th Cir. 1989) .............................................................. 

37 

United States v. Harper, 972 F.2d 321 (11th Cir. 
1992) ............................................................................ 
30, 40, 43 

United States v. Headley, 923 F.2d 1079 (3d Cir. 
1991) ..................................................................................... 
14, 35 

United States v. Johnson, 971 F.2d 562 (10th Cir. 
1992) ................................................................................. 
30, 43-44 

United States v. Kissick, 69 F.3d 1048 (10th Cir. 
1995), cert. denied, 519 U.S. 1138 (1997) ........................... 
14 

United States v. Kneeland, 148 F.3d 6 (1st Cir. 
1998) ......................................................................................... 33 

United States v. Kunzman, 54 F.3d 1522 (10th Cir. 
1995) ............................................................................... 30, 40, 41 

VI 

Cases—Continued: Page 

United States v. Lavoie, 19 F.3d 1102 (6th Cir. 
1994) ......................................................................................... 37 

United States v. Leonard, 61 F.3d 1181 (5th Cir. 
1995) ............................................................................... 

30, 31, 33 

United States v. Lombardi, 5 F.3d 568 (1st Cir. 
1993) ........................................................................ 
30, 40, 41, 42 

United States v. Lopez, 100 F.3d 113 (10th Cir. 
1996) ......................................................................................... 35 

United States v. McMahon, 133 F.3d 918 (4th Cir. 
1999) ......................................................................................... 33 

United States v. Mannino, 212 F.3d 835 (3d Cir. 
2000) ..................................................................................... 

35, 37 

United States v. McClendon, 195 F.3d 598 (11th 

Cir. 1999) ................................................................................. 

33 

United States v. Mikalajunas, 186 F.3d 490 (4th 

Cir. 1999), cert. denied, 120 S. Ct. 1283 (2000) ................. 

17 

United States v. Mullens, 65 F.3d 1560 (11th Cir. 
1995), cert. denied, 517 U.S. 1112 (1996) ........................... 
33 

United States v. Napoli, 179 F.3d 1 (2d Cir. 1999), 
cert. denied, 120 S. Ct. 1176 (2000) ............................... 
33, 40, 

41, 43, 44, 47 

United States v. O’Kane, 155 F.3d 969 (8th Cir. 
1998) ................................................................ 
33, 41, 43, 44, 47 

United States v. Phillips, 210 F.3d 345 (5th Cir. 
2000) .............................................................................. 
20, 29, 37 

United States v. Porter, 909 F.2d 789 (4th Cir. 
1990) ......................................................................................... 30 

United States v. Pregent, 190 F.3d 279 (4th Cir. 
1999) ......................................................................................... 17 

United States v. Schlesinger, 49 F.3d 483 (9th 

Cir. 1994) ................................................................................. 
17 

United States v. Segler, 37 F.3d 1131 (5th Cir. 
1994) ..................................................................................... 
17, 36 

United States v. Seyfert, 67 F.3d 544 (5th Cir. 
1995) ..................................................................................... 14, 29 

VII 

Cases—Continued: Page 

United States v. Soto, 132 F.3d 56 (D.C. Cir. 
1997) ..................................................................................... 
14, 35 

United States v. Talk, 158 F.3d 1064 (10th Cir. 
1998), cert. denied, 525 U.S. 1164 (1999) ........................... 
17 

United States v. Taylor, 984 F.2d 298 (9th Cir. 
1993) ..................................................................................... 
30, 43 

United States v. Universal Mgmt. Servs., Inc., 
191 F.3d 750 (6th Cir. 1999), cert. denied, 120 
S. Ct. 2740 (2000) ................................................................... 
34 

United States v. Walker, 112 F.3d 163 (4th Cir. 
1997) ......................................................................................... 33 

United States v. Watts 519 U.S. 148 (1997) ........................ 

47 

United States v. Williamson, 183 F.3d 458 (5th Cir. 
1999) ......................................................................................... 35 

United States v. Wilson: 
98 F.3d 281 (7th Cir. 1996) .......... 

5, 10, 25, 31, 34, 39, 45, 47 

131 F.3d 1250 (7th Cir. 1997) ........................................... 

31, 48 

Williams v. Taylor, 120 S. Ct. 1495 (2000) ................. 
7, 8, 9, 

12, 19, 20, 39 
Williams v. United States, 503 U.S. 193 (1992) ............... 

13 

Yee v. City of Escondido, 503 U.S. 519 (1992) .................. 
24 

Constitution, statutes, guidelines and rules: 

U.S. Const.: 

Amend. IV .......................................................................... 

12, 23 

Amend. VI .............................................................................. 
17 

Sentencing Reform Act of 1984, Pub. L. No. 98-473, 

Tit. II, ch. II, 98 Stat. 1987 ................................................... 

12 

18 U.S.C. 1954 ........................................................................... 
3 

18 U.S.C. 1956(a)(1)(B)(i) ....................................................... 
3 

18 U.S.C. 1962(d) ...................................................................... 
2-3 

18 U.S.C. 3553 ....................................................................... 
16, 1a 

18 U.S.C. 3553(a)(4) ............................................................. 
16, 1a 

18 U.S.C. 3553(b) .................................................................. 
16, 2a 

18 U.S.C. 3742 ................................................................. 
13, 17, 6a 

18 U.S.C. 3742(e) .................................................................. 13, 7a 

VIII 

Statutes, guidelines and rules—Continued: 
Page 

18 U.S.C. 3742(f) ...................................................................... 
14 

26 U.S.C. 7206 ........................................................................... 
3 

28 U.S.C. 994(b)(2) ................................................................... 
16 

28 U.S.C. 2255 (1994 & Supp. IV 1998) ........................ 
4, 8, 17, 

18, 25, 40 

United States Sentencing Guidelines: 
Ch. 1: 

Pt. A. 4(h) ........................................................................... 

28 

Pt. B.: 
§ 1B1.3(a)(2) ...................................................... 
47, 48, 10a 

Ch. 2: 

Pt. B: 
§ 2B1.1(b)(1) ................................................................. 

44 
Pt. E: 
§ 2E1.1(a) ...................................................................... 
41 

§ 2E5.1(a)(1) ................................................................. 
45 

§ 2E5.1(b) ...................................................................... 
41 

§ 2E5.1(b)(1) ................................................................. 
45 

§ 2E5.1.(b)(2) ................................................................ 
44 

Pt. F: 
§ 2F1.1(b)(1) ................................................................. 
44 

§ 2F1.1(b)(1)(M) ....................................................... 
45, 47 

Pt. S: 
§ 2S1.1(a)(2) .................................................................. 
46 

§ 2S1.1(b) ...................................................................... 
41 

§ 2S1.1(b)(2) .................................................................. 
44 

§ 2S1.1(b)(2)(C) ............................................................ 45-46 

§ 2S1.1(b)(2)(G) ............................................................ 

47 

§ 2S1.1 comment. ......................................................... 
43 

Ch. 3: 

Pt. B: 
§ 3B1.3 ........................................................................... 

46 
Pt. C: 
§ 3C1.1 ........................................................................... 
3, 46 

Pt. D: 

Pt. D, intro. comment. ...................................... 39, 44, 18a 

IX 

Guidelines and rules—Continued: 
Page 

§ 3D1.2 ................................................................... 
passim 

§ 3D1.2(c) ........................................................... 
31, 41, 12a 

§ 3D1.2(d) ............................. 
31, 33, 34, 38, 39, 42, 48, 12a 

§ 3D1.2, comment. (n.2) .............................................. 

41 

§ 3D1.2, comment. (n.5) .............................................. 
41 

§ 3D1.2, comment. (n.6) .......................................... 
43, 44 

§ 3D1.3(b) ........................................................... 
46, 47, 14a 

§ 3D1.3, comment. (n.3) .............................................. 
48 

§ 3D1.4 ............................................................ 
3, 42, 46, 15a 

Ch. 5: 

Pt. B: 
§ 5B1.1 ........................................................................... 

22 
Fed. R. Crim. P.: 

Rule 32 ..................................................................................... 

17 

Rule 32(b) ................................................................................ 
27 

Miscellaneous: 

Robert Jackson, Advocacy Before the United States 

Supreme Court, 25 Temple L.Q. 115 (1951) ...................... 

27 

S. Rep. No. 225, 98th Cong., 1st Sess. (1983) ....................... 13 

In the Supreme Court of the United States 

No. 99-8576 

PAUL L. GLOVER, PETITIONER 

v. 
UNITED STATES OF AMERICA 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SEVENTH CIRCUIT 

BRIEF FOR THE UNITED STATES 

OPINION BELOW 

The opinion of the court of appeals (J.A. 52-54) is unre- 
ported, but the judgment is noted at 182 F.3d 921 (Table). 

JURISDICTION 

The judgment of the court of appeals was entered on July 
15, 1999. A petition for rehearing was denied on October 7, 
1999 (J.A. 55). On December 16, 1999, Justice Stevens ex- 
tended the time for filing a petition for a writ of certiorari to 
and including March 5, 2000. The petition was filed on March 
6, 2000 (a Monday) and was granted on June 26, 2000. The 
jurisdiction of this Court rests on 28 U.S.C. 1254(1). 

STATUTORY AND GUIDELINES PROVISIONS 
INVOLVED 

The relevant provisions of the Sentencing Reform Act of 
1984 and the Sentencing Guidelines are set forth in an app- 
endix to this brief. 

(1) 

2 

STATEMENT 

1. Petitioner was Vice-President and General Counsel of 
the Chicago Truck Drivers, Helpers, and Warehouse 
Workers Union. Petitioner was also Fund Manager of the 
Union’s Health and Welfare Fund and a member of the 
Fund’s Board of Trustees. Although petitioner was respon- 
sible for managing the Fund’s day-to-day operations, he was 
not authorized to make investment decisions for the Fund. 
Those decisions were to be made only by the full Board of 
Trustees. The Union’s Pension Fund was also administered 
by a Board of Trustees, and Pension Fund investments could 
be authorized only by a majority vote of the Pension Fund 
Board. John R. Johnson, Sr., the President of the Union, 
served as Fund Manager of the Pension Fund, and both he 
and petitioner were members of the Pension Fund’s Board of 
Trustees. J.A. 130. 

Between 1986 and 1992, petitioner and Johnson engaged 
in several schemes in which they received kickbacks in 
exchange for causing the Health and Welfare and Pension 
Funds to make various investments. Petitioner and Johnson 
improperly steered investments to various investment 
brokers without the approval of the relevant Boards, and the 
brokers then paid kickbacks to petitioner and Johnson. Peti- 
tioner did not report the kickbacks on his income tax 
returns, and he cashed some of the checks that he received 
through a currency exchange, conduct which formed the 
basis for money laundering charges against him. The laun- 
dered money was not used to further the underlying fraud. 
J.A. 131-135. The improper commissions that the brokers 
received totaled approximately $1,802,000, and the laun- 
dered funds totaled approximately $250,000. J.A. 67. 

2. On January 19, 1995, petitioner was indicted in the 
United States District Court for the Northern District of 
Illinois on charges of racketeering conspiracy, in violation of 
the Racketeer Influenced and Corrupt Organizations Act, 18 

3 

U.S.C. 1962(d); labor racketeering, in violation of 18 U.S.C. 
1954; money laundering, in violation of 18 U.S.C. 
1956(a)(1)(B)(i); and filing false tax returns, in violation of 26 
U.S.C. 7206. Petitioner’s first trial ended in a hung jury. 
J.A. 136. The jury in petitioner’s second trial found him 
guilty of most of the charges. J.A. 136-137. 

The Presentence Investigation Report (PSR) that was 
prepared for petitioner’s sentencing recommended that his 
labor racketeering, money laundering, and tax offenses all be 
grouped together under Sentencing Guidelines (Guidelines) 
§ 3D1.2 for purposes of determining his offense level. J.A. 

71. The government objected to that recommendation, and 
the district court considered the issue at the sentencing 
hearing. See J.A. 88-89. The government pointed out that 
several courts of appeals had held that money laundering 
offenses should not be grouped with the offenses that 
generated the laundered funds. Petitioner’s counsel con- 
tended that the offenses involved “one joint effort” and all of 
the offenses were therefore “appropriately grouped” in the 
PSR. The district court, however, agreed with the govern- 
ment that the money laundering offenses should be grouped 
separately. J.A. 89. 

The district court also decided, over defense counsel’s 
objection, that petitioner’s offense level for the racketeering 
offenses should be adjusted upward two levels for obstruc- 
tion of justice under Guidelines § 3C1.1 because petitioner 
had perjured himself at his first trial. Sent. Tr. 6-9; J.A. 84. 
The government asked the district court to make an addi- 
tional upward adjustment for petitioner’s role in the offense 
(Sent. Tr. 12-13), but the court agreed with defense counsel’s 
argument (id. at 13-14) that an adjustment was not war- 
ranted. As a result, the adjusted offense level for the 
racketeering group of offenses was 26, and the adjusted 
offense level for the money laundering group of offenses was 
also 26. The court added two levels under Guidelines § 3D1.4 
because it found (in contrast to the PSR) that petitioner’s 

4 

offenses fell into more than one group of closely related 
counts. The resulting offense level of 28, combined with peti- 
tioner’s criminal history category of I, yielded a sentencing 
range of between 78 and 97 months of imprisonment. Sent. 
Tr. 15; J.A. 86. The government asked the court to sentence 
petitioner at the top of the range, Sent. Tr. 17, and peti- 
tioner’s counsel responded by pointing out a variety of miti- 
gating factors, including petitioner’s family responsibilities, 
his past productive contributions to the community, and his 
lack of a criminal history (id. at 19-20). The district court 
imposed a sentence of 84 months. Id. at 23-24. 

3. The same counsel represented petitioner in his direct 
appeal. In that appeal, petitioner raised two claims, one con- 
cerning his convictions and the other his sentence. J.A. 130. 
Petitioner argued that the district court had erroneously 
denied his request that nearly all of his testimony at his first 
trial be admitted in order to clarify the portion of that 
testimony that had been introduced by the government at 
the second trial. Petitioner contended that, as a result, his 
convictions should be overturned. J.A. 138. Petitioner also 
argued that the two-level enhancement that the district 
court had imposed on the ground that petitioner had per- 
jured himself at his first trial was not supported by the 
evidence. J.A. 145. Petitioner did not renew on direct ap- 
peal his objection to the district court’s refusal to group his 
money laundering offenses with the offenses that generated 
the laundered funds for purposes of determining his base 
offense level. In a published opinion of several pages, the 
court of appeals considered and rejected each of petitioner’s 
claims and affirmed his convictions and sentence. J.A. 129- 
147. 

4. In a later motion to correct his sentence filed under 28 
U.S.C. 2255 (1994 & Supp. IV 1998), petitioner renewed the 
claim that his money laundering offenses should have been 
grouped with his conspiracy and labor racketeering offenses 
under Guidelines § 3D1.2. J.A. 23-34. Petitioner also argued 

5 

that his counsel had rendered constitutionally ineffective 
assistance under Strickland v. Washington, 466 U.S. 668 
(1984). He claimed that counsel was derelict in failing to 
press the grouping argument adequately at sentencing and 
in failing to raise it at all on direct appeal, and that the 
deficient performance had caused him prejudice. J.A. 34-41. 
Under a proper application of the Guidelines, petitioner 
contended, his offense level should have been reduced from 
level 28 to 26, his Guidelines range should have been 63 to 78 
months of imprisonment, and his sentence should accord- 
ingly have been between 6 and 21 months lower than the 84 
months imposed by the district court. J.A. 43. 

The district court denied petitioner’s Section 2255 motion. 
J.A. 42-48. The court did not reach the government’s argu- 
ment, on the first component of the Strickland analysis, that 
“counsel’s performance could not have been deficient, at 
sentencing or on appeal, for failing to raise an issue that had 
not yet been decided by the Seventh Circuit.” J.A. 44.1 
Instead, the court resolved petitioner’s ineffective assistance 
claim on the second component of the Strickland analysis, 
because it found that petitioner had not shown prejudice. 
J.A. 45. The court explained that circuit precedent required 
that the potential change in sentence be a “significant” 
amount in order to constitute prejudice, J.A. 45 (citing 
Durrive v. United States, 4 F.3d 548 (7th Cir. 1993), and 
Martin v. United States, 109 F.3d 1177 (7th Cir. 1996), cert. 
denied, 522 U.S. 931 (1997)), and that the increase in sen- 

1 The district court noted that, at the time of sentencing, the Seventh 
Circuit had not yet considered the grouping issue that petitioner was 
seeking to raise, but several other circuits had rejected his position. J.A. 
43-44. Only after oral argument in petitioner’s appeal and before issuance 
of the opinion affirming his convictions and sentence did the Seventh Cir- 
cuit rule in United States v. Wilson, 98 F.3d 281 (1996), that “the 
§ 1956 money laundering offenses and mail fraud offenses involved in that 
case should be grouped.” J.A. 44. 

6 

tence that petitioner alleged (6 to 21 months) was not “sig- 
nificant” enough under that test. J .A. 45-47. 2 

5. The court of appeals affirmed. J.A. 52-54. In a short 
per curiam opinion, the court endorsed the district court’s 
reasoning: 

Even if we were to assume that [petitioner’s] attorneys 
performed inadequately [under Strickland], the second 
prong, prejudice, is missing here. [Petitioner] argues 
that his attorneys’ failure to argue the correct interpre- 
tation of U.S.S.G. § 3D1.2 led to an adjusted offense level 
two levels higher than it should have been. This court 
has held that only a significant increase in the sentence 
rises to the level of the type of prejudice that will sup- 
port an ineffective assistance of counsel claim on 
collateral attack. 

J.A. 53. The court acknowledged petitioner’s claim that, if 
not for his counsel’s purported errors, he would have been 
sentenced within a Guidelines range of 63 to 78 months, 
which was 6 to 21 months less than his sentence of 84 months 
of imprisonment. J.A. 53. Relying on Durrive and Martin, 
however, the court held that “this potential decrease is not 
sufficiently significant to be cognizable on collateral attack.” 
J.A. 54. 

2 The court recognized that in Martin, the court of appeals had de- 
scribed its approach to sentencing prejudice as a “rule of proportionality” 
but had not explicated the meaning of that phrase. J.A. 46 (quoting 
Martin, 109 F.3d at 1178). The district court therefore compared the 
potential change in petitioner’s sentence to the change that the court of 
appeals in Durrive found insufficient to constitute prejudice. In Durrive, 
the sentence reduction would have been between 10 and 18.3% (120 
months reduced by 12 to 22 months). J.A. 46-47. Here, the sentence 
reduction would have been between 7.1 and 25% (84 months reduced by 6 
to 21 months). 

J.A. 47. The court concluded that “[t]he potential sentence 

reduction in the present case is not large enough to satisfy the significant 
change requirement of Durrive and Martin.” J.A. 47. 

7 

SUMMARY OF ARGUMENT 

In Strickland v. Washington, 466 U.S. 668 (1984), this 
Court held that a claim of ineffective assistance of counsel in 
violation of the Sixth Amendment requires two showings: 
first, the defendant must show that counsel committed 
sufficiently serious errors that his “representation fell below 
an objective standard of reasonableness.” Id. at 688. 
Second, the defendant must show that the errors resulted in 
prejudice. Establishing prejudice requires the defendant to 
show “a reasonable probability that, but for counsel’s 
unprofessional errors, the result of the proceeding would 
have been different.” Id. at 694. Petitioner’s claim is that, 
but for counsel’s deficient performance at trial and on appeal, 
his sentence under the Sentencing Guidelines would have 
been between 6 and 21 months less than the 84 months of 
imprisonment he received. The court of appeals held that 
such a reduction is not “significant” enough to constitute 
prejudice. In our view, the court of appeals erred in supple- 
menting Strickland’s test for prejudice with a “significant” 
difference inquiry. Nevertheless, a proper application of 
Strickland results in the conclusion that petitioner can show 
neither deficient performance nor prejudice. 

A. Strickland itself involved capital sentencing, and the 
Court reserved whether its two-part test applied to the less 
formal process and “standardless discretion” in noncapital 
sentencing. 466 U.S. at 686. Subsequent cases, however, 
have revealed that “the Strickland test provides sufficient 
guidance for resolving virtually all ineffective-assistance-of- 
counsel claims.” Williams v. Taylor, 120 S. Ct. 1495, 1512 
(2000). It is particularly suited to evaluating counsel’s role in 
sentencing and appeals under the federal Sentencing Guide- 
lines, because the Guidelines provide detailed standards to 
guide the discretion of the court, they are applied through 
relatively formal adversary procedures at sentencing and on 
appeal, and the intricacy of the Guidelines has increased the 

8 

need for counsel in order to guarantee the defendant a fair 
sentencing disposition. 

The unique characteristics of Guidelines sentencing should 
nevertheless inform application of the Strickland test. Non- 
capital sentencing, under the Guidelines as elsewhere, gen- 
erally involves a wide range of possible outcomes and leaves 
the court with significant discretion to select a sentence. 
The benefits of pressing a particular claim, therefore, will 
often be quite uncertain to counsel; likewise, it will often be 
difficult for a Section 2255 court to determine the probable 
effect of counsel’s failure to pursue the claim. In addition, 
Sentencing Guidelines claims are not themselves cognizable 
on collateral review, because an error in application of the 
Guidelines will rarely “inherently result[] in a complete mis- 
carriage of justice” or be “inconsistent with the rudimentary 
demands of fair procedure.” Hill v. United States, 368 U.S. 
424, 428 (1962). The standard for ineffective assistance of 
counsel should not be so easy that defendants can routinely 
circumvent the bar on collateral review of Guidelines claims 
by recasting them as constitutional ones. 

The court of appeals correctly sought to balance these con- 
siderations. But it erred in holding that a defendant could 
show “prejudice” for an ineffective assistance of counsel 
claim only if, but for counsel’s error, the defendant would 
have received a “significant” sentencing reduction. See Dur- 
rive v. United States, 4 F.3d 548 (7th Cir. 1993). In fashion- 
ing that standard, the court of appeals relied on this Court’s 
decision in Lockhart v. Fretwell, 506 U.S. 364 (1993), which it 
understood as modifying the Strickland prejudice analysis 
by requiring the defendant to show not only a different 
outcome (i.e., a longer sentence), but also a fundamentally 
unfair or unreliable result (i.e., a significantly longer sen- 
tence). But this Court recently rejected that understanding 
of Lockhart. As the Court explained in Williams, 120 S. Ct. 
at 1513, Lockhart “do[es] not justify a departure from a 
straightforward application of Strickland when the ineffec- 

9 

tiveness of counsel does deprive the defendant of a substan- 
tive or procedural right to which the law entitles him.” In 
that setting, no “separate inquiry into fundamental fairness” 
is required. 120 S. Ct. at 1513. The Seventh Circuit’s “sig- 
nificant” difference test contradicts this Court’s reasoning in 
Williams. The test has also proved unworkable. No clear or 
principled lines have emerged between sentencing differ- 
ences that are “significant” and those that are not, and it 
seems unlikely than any non-arbitrary lines can be drawn. 
Thus, when it can be shown that additional imprisonment 
under the Guidelines was imposed solely because of counsel’s 
inadequate representation, collateral relief under Strickland 
is warranted. 

The considerations that animated the court of appeals’ 
holding remain important ones. But proper respect for the 
judgment of trial and appellate lawyers in the performance 
analysis will weed out many of the claims that the court of 
appeals correctly recognized do not merit collateral relief. 
Indeed, in this case, a sound application of Strickland yields 
the conclusion that petitioner’s counsel performed ade- 
quately. In addition, his alleged mistakes did not prejudice 
petitioner. 

B. The assessment of counsel’s performance requires def- 
erence to his strategic judgments. Issue selection is critical 
to effective advocacy, both at trial and on appeal. That 
proposition applies with special force to the Guidelines. 
Because of the complexity of the Guidelines, counsel must 
factor in not only the likelihood of success but also the 
magnitude of the benefit from raising an issue. He must 
then weigh how many issues he can raise without impairing 
his credibility, which remains crucial in light of the 
sentencing court’s substantial and unreviewable discretion 
to impose sentence once the range is established. On appeal, 
the need to winnow and focus the issues is even more acute. 
See Jones v. Barnes, 463 U.S. 745, 751-752 (1983). Thus, only 
in the rare case in which an omitted Guidelines issue is 

10 

clearly stronger than the legal issues raised—as when there 
is controlling circuit precedent in the defendant’s 
favor—should counsel’s performance be held deficient. 

According petitioner’s counsel a “strong presumption” 
that his conduct fell “within the wide range of reasonable 
professional assistance,” and eliminating the distortions of 
hindsight, Strickland, 466 U.S. at 689, petitioner’s counsel 
was not deficient in failing to press more vigorously at sen- 
tencing or raise on appeal the grouping issue under Guide- 
lines § 3D1.2. No Seventh Circuit precedent supported peti- 
tioner’s position at the time of sentencing that money 
laundering offenses should be grouped with the underlying 
offenses that generated the laundered proceeds, and much 
out-of-circuit authority contradicted it. Nor was counsel 
required to be clairvoyant and foresee that the Seventh Cir- 
cuit would, after the appeal had been argued, adopt a posi- 
tion on grouping favorable to the defense. Even that hold- 
ing, moreover, might produce an increase, not a decrease, in 
petitioner’s offense level. In view of the uncertain prospects 
of the grouping claim at the time of sentencing and appeal, 
there was no lapse in representation. 

C. There was also no prejudice to petitioner from coun- 
sel’s failure to press the grouping claim. The question 
whether petitioner was prejudiced turns initially on 
whether, under the Guidelines, money laundering should be 
grouped with the offenses that generated the proceeds. 
Correctly analyzed, the answer is no. And, even if grouping 
were required under the Seventh Circuit precedent on which 
petitioner now relies, United States v. Wilson, 98 F.3d 281 
(7th Cir. 1996), application of that decision should lead to an 
increase in petitioner’s sentence. Under those circum- 
stances, petitioner cannot establish prejudice by his coun- 
sel’s failure to press the grouping claim. 

11 

ARGUMENT 

COUNSEL’S FAILURE TO ARGUE THAT PETI- 
TIONER’S MONEY LAUNDERING AND RACKETEER- 
ING OFFENSES SHOULD BE GROUPED UNDER THE 
SENTENCING GUIDELINES DID NOT CONSTITUTE 

INEFFECTIVE ASSISTANCE 

A. Strickland v. Washington Governs Claims Of Ineffec- 
tive Assistance Of Counsel At Noncapital Sentencing 

And Appeal 

1. This Court’s decision in Strickland v. Washington, 466 
U.S. 668 (1984), announced a general test for claims of inef- 
fective assistance of counsel. The Court held that a claim of 
ineffective assistance of counsel at trial or capital sentencing 
has two components. First, the defendant must show that 
counsel’s performance was deficient, in that “counsel made 
errors so serious that counsel was not functioning as the 
‘counsel’ guaranteed the defendant by the Sixth Amend- 
ment.” Id. at 687. Second, the defendant must show that 
“the deficient performance prejudiced the defense” (ibid.) in 
the sense that “there is a reasonable probability that, but for 
counsel’s unprofessional errors, the result of the proceeding 
would have been different” (id. at 694). Strickland itself 
involved a capital sentencing proceeding, which the Court 
found enough like a trial to make the description of the 
duties of counsel in the two contexts essentially equivalent. 
Id. at at 686-687. The Court noted, however, that it was not 
required to consider “the role of counsel in an ordinary 
sentencing, which may involve informal proceedings and 
standardless discretion in the sentencer, and hence may 
require a different approach to the definition of constitu- 
tionally effective assistance.” Id. at 686. 

Since Strickland, the Court has applied its two-part test 
in a variety of contexts besides trial and capital sentencing. 
The Court has employed Strickland to evaluate ineffective- 
ness claims in the entry of a guilty plea (see Hill v. Lockhart, 

12 

474 U.S. 52, 59 (1985)) and in failing to file pre-trial motions 
to suppress evidence on Fourth Amendment grounds (see 
Kimmelman v. Morrison, 477 U.S. 365, 390-391 (1986)). The 
Court has also applied Strickland to several types of inef- 
fectiveness claims connected with the appeals process. In 
particular, the Court has used the Strickland test to evalu- 
ate counsel’s failure to raise a capital sentencing claim on 
appeal (see Smith v. Murray, 477 U.S. 527, 535-536 (1986)); 
counsel’s failure to file a notice of appeal (see Roe v. Flores- 
Ortega, 120 S. Ct. 1029, 1034 (2000)); and counsel’s decision to 
file an Anders (or equivalent) brief rather than a full merits 
brief on appeal (see Smith v. Robbins, 120 S. Ct. 746, 764 
(2000)). Considering the wide range of claims to which the 
Court has applied Strickland, it is not surprising that the 
Court recently noted that “the Strickland test provides 
sufficient guidance for resolving virtually all ineffective- 
assistance-of-counsel claims.” Williams v. Taylor, 120 S. Ct. 
1495, 1512 (2000). 

This case involves the issue of how ineffective assistance 
claims should be resolved when a defendant claims that his 
counsel’s deficient performance resulted in a longer sentence 
under the Sentencing Guidelines established by the Sentenc- 
ing Reform Act of 1984, Pub. L. No. 98-473, Tit. II, ch. II, 98 
Stat. 1987. In our view, Strickland’s general approach to 
issues of ineffective assistance of counsel can and should 
apply to such claims. As this Court has held, sentencing is a 
critical stage of the criminal prosecution at which the defen- 
dant has a right to effective assistance of counsel. See 
Mempa v. Rhay, 389 U.S. 128, 134 (1967). Moreover, the 
advent of the Sentencing Guidelines has modified sentencing 
in the federal system so that the Court’s concern in Strick- 
land about “informal proceedings and standardless discre- 
tion” is of less significance. Although trial courts retain sub- 
stantial discretion in sentencing under the Guidelines, see 
Koon v. United States, 518 U.S. 81 (1996), the Guidelines 
provide “detailed and comprehensive standards” to direct 

13 

the determination of the appropriate sentencing range. 
Arredondo v. United States, 178 F.3d 778, 784 (6th Cir. 
1999). And the development of the Guidelines was accompa- 
nied by the creation of more formal procedures designed to 
promote “focused, adversarial resolution of the legal and 
factual issues relevant to fixing Guidelines sentences.” 
Burns v. United States, 501 U.S. 129, 137 (1991). Particu- 
larly because sentencing rules under the Guidelines are 
intricate and complex, “[t]he right to be heard would be, in 
many cases, of little avail if it did not comprehend the right 
to be heard by counsel.” Gideon v. Wainwright, 372 U.S. 
335, 344-345 (1963) (quoting Powell v. Alabama, 287 U.S. 45, 
68-69 (1932)). 

Similar considerations apply to appeals raising Guidelines 
issues. As this Court has recognized, “[t]he need for forceful 
advocacy does not come to an abrupt halt as the legal 
proceeding moves from the trial to appellate stage.” Penson 

v. Ohio, 488 U.S. 75, 85 (1988). In holding that the right to 
effective assistance of counsel extends to direct appeal of a 
conviction, the Court noted that “[t]o prosecute the appeal, a 
criminal appellant must face an adversary proceeding that— 
like a trial—is governed by intricate rules that to a layper- 
son would be hopelessly forbidding. An unrepresented 
appellant—like an unrepresented defendant at trial—is un- 
able to protect the vital interests at stake.” Evitts v. Lucey, 
469 U.S. 387, 396 (1985). That reasoning applies equally to 
appeals raising issues under the Guidelines. In enacting the 
Sentencing Reform Act of 1984, Congress “provide[d] for 
limited appellate review of sentences in order to ensure the 
proper application of the Guidelines.” Williams v. United 
States, 503 U.S. 193, 196 (1992). Congress thus conceived of 
appellate review of sentences (in the limited circumstances 
provided in 18 U.S.C. 3742) as an integral component of the 
new system to ensure fair and uniform sentencing. See S. 
Rep. No. 225, 98th Cong., 1st Sess. 151 (1983). In addition, 
sentencing appeals under the Guidelines system are as 

14 

formal as appellate proceedings that relate only to the con- 
viction. And Congress has established clear legal standards 
for resolution of those appeals. See 18 U.S.C. 3742(e) and (f ). 
Consistent with the above considerations, the courts of 
appeals have applied the Strickland test to ineffective 
assistance of counsel claims arising from counsel’s perfor- 
mance at Guidelines sentencing and appeals, although, like 
the court of appeals in this case, some courts have modified 
the prejudice inquiry in order to account for the particular 
features of noncapital sentencing.3 

2. Although the Strickland test should apply to ineffec- 
tive assistance claims involving sentencing proceedings and 
appeals under the Guidelines, the application of the test 
should take into account the particular characteristics of 
those proceedings. This Court has previously recognized 
that the Strickland inquiries must be shaped to the 
particular context in which they are applied. For example, 
in applying the performance component of the analysis to 
claims of ineffectiveness on appeal, the Court has recognized 
that the nature of appellate advocacy and the parameters 
imposed on the advocate require counsel to select from 
available claims “in order to maximize the likelihood of 
success.” Robbins, 120 S. Ct. at 765; see also Jones v. 
Barnes, 463 U.S. 745, 751-752 (1983). Therefore, “only when 
ignored issues are clearly stronger than those presented, will 
the presumption of effective assistance of counsel be 

3 See, e.g., Arredondo, 178 F.3d at 783-784; United States v. Soto, 132 
F.3d 56, 59 (D.C. Cir. 1997); Reece v. United States, 119 F.3d 1462, 1465 
(11th Cir. 1997); Smullen v. United States, 94 F.3d 20, 24 (1st Cir. 1996); 
United States v. Breckenridge, 93 F.3d 132, 136 (4th Cir. 1996); United 
States v. Kissick, 69 F.3d 1048, 1054 (10th Cir. 1995), cert. denied, 519 U.S. 
1138 (1997); United States v. Seyfert, 67 F.3d 544, 547 (5th Cir. 1995); 
Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995); United States v. 
Headley, 923 F.2d 1079, 1083-1084 (3d Cir. 1991); Janvier v. United States, 
793 F.2d 449, 456 (2d Cir. 1986); J.A. 52-54. 

15 

overcome.” Robbins, 120 S. Ct. at 765 (quoting Gray v. 
Greer, 800 F.2d 644, 646 (7th Cir. 1986)). 

The Court has similarly tailored the prejudice inquiry to 
fit particular contexts. In Flores-Ortega, 120 S. Ct. at 1037- 
1040 (2000), the court considered a claim that counsel was 
deficient in failing to consult with the defendant about filing 
an appeal. Because “counsel’s alleged deficient performance 
arguably led not to a judicial proceeding of disputed reliabil- 
ity, but rather to the forfeiture of a proceeding itself,” id. at 
1038, the Court determined that the usual prejudice inquiry 
focusing on the likely outcome of the proceeding was 
inappropriate. Instead, the Court held, “to show prejudice in 
these circumstances, a defendant must demonstrate that 
there is a reasonable probability that, but for counsel’s defi- 
cient [performance], he would have timely appealed.” Ibid. 
Similarly, in Hill v. Lockhart, 474 U.S. at 52, in which the 
Court applied the Strickland framework to counseled guilty 
pleas, the Court held that counsel’s erroneous advice that a 
defendant should plead guilty is prejudicial when “there is a 
reasonable probability that, but for counsel’s errors, [the 
defendant] would not have pleaded guilty and would have 
insisted on going to trial.” 

When applying Strickland to noncapital sentencing and 
appeals, reviewing courts must proceed with similar sensi- 
tivity to the nature of the sentencing process. First, the 
sentencing determination often involves a wide range of 
possible outcomes and slight differences among those out- 
comes. In addition, as this Court observed in Strickland, 
sentencers often exercise virtually “standardless discretion” 
(466 U.S. at 686) in selecting among sentencing alternatives. 
Those features of noncapital sentencing are most pronounced 
in systems that give the sentencer virtually complete discre- 
tion to select a sentence from within a wide range set by 
statutory minimum and maximum terms. But they are also 
present in systems like the federal system in which discre- 
tion is limited by Sentencing Guidelines. The Guidelines 

16 

provide a specific and detailed set of standards relating to 
offense behavior and offender characteristics to govern the 
determination of the applicable range from which the sen- 
tencing judge is to select a sentence. See 28 U.S.C. 994(b)(2); 
18 U.S.C. 3553(a)(4) and (b). The judge nevertheless retains 
significant discretion in applying the Guidelines to the par- 
ticular facts, selecting a sentence from within the applicable 
Guidelines range, and deciding whether to depart from the 
Guidelines. See 18 U.S.C. 3553. Moreover, not every claim 
relevant to the Guidelines criteria will change the applicable 
Guidelines range and, because there is substantial overlap 
among Guidelines ranges, not every change in the Guidelines 
range will have an impact on the defendant’s sentence. 

Because of these factors, both the prospect of prevailing 
on a particular claim and the potential sentencing benefit 
from a successful claim will often be quite uncertain. It will 
therefore usually be difficult, if not impossible, for a review- 
ing court to assess the reasonableness of counsel’s decision to 
focus on one claim rather than another. Likewise, it will 
frequently be difficult or impossible for the reviewing court 
to determine that the failure to raise a particular claim 
resulted in a reasonable probability of a different sentencing 
outcome. 

A second consideration that should inform application of 
the test for ineffective assistance of counsel in the noncapital 
sentencing context is that most sentencing errors are not 
cognizable on collateral review. Collateral relief is rarely 
available for claims that do not assert constitutional or 
jurisdictional errors. A non-jurisdictional claim based on a 
statute or rule may be raised on collateral review only if the 
claim alleges a “fundamental defect which inherently results 
in a complete miscarriage of justice” or “an omission incon- 
sistent with the rudimentary demands of fair procedure.” 
Hill v. United States, 368 U.S. 424, 428 (1962); see, e.g., Reed 

v. Farley, 512 U.S. 339, 353-354 (1994). “[E]rrors of guide- 
line interpretation or application ordinarily fall short of a 

17 

miscarriage of justice.” United States v. Mikalajunas, 186 
F.3d 490, 496 (4th Cir. 1999), cert. denied, 120 S. Ct. 1283 
(2000). 

Errors in the application of the Guidelines do not implicate 
the determination of guilt or innocence. Moreover, the 
Constitution and federal statutes provide defendants with a 
full and fair opportunity to litigate Guidelines claims at 
sentencing and on direct appeal. See Fed. R. Crim. P. 32; 18 
U.S.C. 3742. Permitting routine relitigation of those claims 
on collateral review would impose unjustified costs on the 
judicial system and unnecessarily compromise the finality of 
criminal sentences. Therefore, the vast majority of the 
courts of appeals have held that, “[b]arring extraordinary 
circumstances, * * * an error in the application of the 
Sentencing Guidelines cannot be raised” in a proceeding 
under 28 U.S.C. 2255 (1994 & Supp. IV 1998). United States 

v. Pregent, 190 F.3d 279, 283-284 (4th Cir. 1999).4 Because of 
the general preclusion of collateral review for Sentencing 
Guidelines claims, courts should not adopt a standard for 
ineffective assistance of counsel that permits defendants 
routinely to recast Guidelines claims as claims under the 
Sixth Amendment. 

3. In light of those considerations, the Seventh Circuit 
correctly recognized the need to customize the Strickland 
analysis to the nature of noncapital sentencing. In its effort 

4 See also Jones v. United States, 178 F.3d 790, 796 (6th Cir.), cert. 
denied, 120 S. Ct. 335 (1999); United States v. Talk, 158 F.3d 1064, 1069- 
1070 (10th Cir. 1998), cert. denied, 525 U.S. 1164 (1999); Auman, 67 F.3d at 
161; United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994); United 
States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994); Knight v. United 
States, 37 F.3d 769, 773-774 (1st Cir. 1994); Scott v. United States, 997 F.2d 
340, 340-341 (7th Cir 1993). But cf. United States v. Essig, 10 F.3d 968, 979 
(3d Cir. 1993) (rejecting Guidelines claim on collateral attack for failure to 
meet cause and prejudice standard rather than because such claims are 
not cognizable); Parks v. United States, 832 F.2d 1244, 1246 (11th Cir. 
1987) (same). 

18 

to tailor the analysis to that context, however, the court of 
appeals modified the prejudice inquiry in a manner that is 
both inconsistent with this Court’s cases and unworkable. 

The court of appeals’ rule is that, in order to establish 
prejudice, a movant under Section 2255 is required to show 
not only that his counsel’s error resulted in a higher sentence 
(i.e., that the error had an effect on the outcome) but also 
that the increase was so significant that the sentence was 
fundamentally unfair. See J.A. 53 (citing Martin, 109 F.3d at 
1178, and Durrive, 4 F.3d at 551). The court based its con- 
clusion that an effect on the outcome is not enough to satisfy 
Strickland largely on its interpretation of Lockhart v. 
Fretwell, 506 U.S. 364 (1993). In Lockhart, a defendant 
claimed ineffective assistance based on his lawyer’s failure to 
invoke a court of appeals’ precedent that, at the time, would 
have invalidated the aggravating circumstance found by his 
capital sentencing jury, even though, by the time of the 
ineffectiveness claim, that precedent had been overruled in 
light of an intervening decision of this Court. Lockhart con- 
cluded that, in that context, proof of an effect on the outcome 
was not enough to show “prejudice” under Strickland, 
because such a holding would “grant the defendant a windfall 
to which the law does not entitle him,” 506 U.S. at 370, i.e., 
reversal even though his sentence was not “unreliable” or 
the proceeding “fundamentally unfair,” id. at 372. The Dur- 
rive court drew from Lockhart the principle that a defendant 
must not only show that his Guidelines sentence would have 
been lower but for counsel’s deficient performance, but that 
the result must be “unreliable” or “fundamentally unfair.” 4 
F.3d at 551. 5 

5 The court of appeals explained: 

In Lockhart v. Fretwell, [506 U.S. 364 (1993)], [the Court] * * * 
rejected the equation between causation and prejudice. “[A]n analy- 
sis focusing solely on mere outcome determination, without attention 
to whether the result of the proceeding was fundamentally unfair or 

19 

This Court, however, recently rejected precisely the read- 
ing of Lockhart on which the court of appeals based its 
“significant” difference test. In Williams v. Taylor, 120 S. 
Ct. at 1512-1513, the Court examined a state court’s view 
that Strickland was not satisfied in a capital sentencing case 
by the finding that counsel’s errors may have affected the 
outcome of the proceeding; it was also necessary to ask, in 
light of Lockhart, whether the resulting sentence was 
“fundamentally unfair or unreliable.” Id. at 1513. The Court 
held that the state court’s reliance on Lockhart was error. It 
explained that Lockhart’s conclusion rested on the fact that 
“the likelihood of a different outcome [was] attributable to an 
incorrect interpretation of the law,” and that such a result 
would be a “ ‘windfall’ to the defendant rather than the legiti- 
mate ‘prejudice’ contemplated by our opinion in Strickland.” 
Id. at 1512. In contrast, the Court made clear, Lockhart 
“do[es] not justify a departure from a straightforward appli- 
cation of Strickland when the ineffectiveness of counsel does 

unreliable, is defective. To set aside a conviction or sentence solely 
because the outcome would have been different but for counsel’s error 
may grant the defendant a windfall to which the law does not entitle 
him.” Id. at [369-370]. If an effect on the outcome is not enough, what 
is? According to Lockhart, the defendant must establish that counsel’s 
shortcomings “render[ed] the result . . . unreliable or the pro- 
ceeding fundamentally unfair.” Id. at [372]. * * * 

Grave errors by judge and counsel might make a sentence under the 
Guidelines “unreliable or . . . fundamentally unfair.” * * * But the 
difference between 120 months and 108 or even 98 (the middle of the 
lower range) does not demonstrate that the actual sentence is 
“unreliable . . . or fundamentally unfair”—is not, in the language of 
Spriggs [v. Collins, 993 F.2d 85, 89 n.5 (5th Cir. 1993)], a “significant” 
difference. * * * Adjusting the offense level by two or three steps is 
exactly the routine decision that is supposed to be handled at sentenc- 
ing and on direct appeal. * * * [W]e therefore conclude that Durrive 
has not established “prejudice” within the meaning of Strickland. 

Durrive, 4 F.3d at 550-551 (some punctuation altered). 

20 

deprive the defendant of a substantive or procedural right to 
which the law entitles him,” id. at 1513, and, in that setting, 
no “separate inquiry into fundamental fairness” is required, 
ibid. The prejudice inquiry adopted by the court of appeals 
requires just such a separate inquiry, and it therefore cannot 
be reconciled with this Court’s reasoning in Williams.6 

Under Williams, there is no need for a separate showing 
of unfairness, above and beyond a different outcome, because 
the Strickland test itself defines a requirement for a 
fundamentally fair sentence. The Court has made clear that 
noncapital sentencing and appeal are critical stages of the 
criminal prosecution at which effective representation is 
essential to fundamental fairness. See Mempa, 389 U.S. at 
134; Evitts, 469 U.S. at 396. A defendant may not be sen- 
tenced to any term of imprisonment unless he was repre- 
sented by counsel. Argersinger v. Hamlin, 407 U.S. 25, 37 
(1972). And “the prospect of imprisonment for however 

6 The “significant difference” test that the Seventh Circuit adopted in 
Durrive to implement its reading of Lockhart also went farther than the 
circuit precedent on which it relied, Spriggs v. Collins, 993 F.2d 85, 88-89 
(5th Cir. 1993). Spriggs arose on habeas review of a state sentence where 
the sentencing judge had broad discretion to select any sentence within a 
wide sentencing range. To avoid the possibility that any slight error by 
counsel might be said to have resulted in a harsher sentence, “even if only 
by a year or two,” the court required a showing of “a reasonable probabil- 
ity that but for trial counsel’s errors the defendant’s non–capital sentence 
would have been significantly less harsh.” Id. at 88-89. But the Spriggs 
court carved out from that rule a “foreseeable exception” for cases in 
which “a deficiency by counsel resulted in a specific, demonstrable 
enhancement in sentencing * * * which would not have occurred but for 
counsel’s error.” Id. at 88-89 n.4. In relying on Spriggs, the Seventh 
Circuit did not address that limitation, see Durrive, 4 F.3d at 551, which 
appears to cover specific, demonstrable enhancements under the Guide- 
lines. Indeed, the Fifth Circuit recently concluded that the Seventh Cir- 
cuit’s “significant” difference test, as applied to Sentencing Guidelines 
claims, “ignored [Spriggs’] rationale.” United States v. Phillips, 210 F.3d 
345, 351 n.4 (5th Cir. 2000); see also Martin, 109 F.3d at 1182 (Rovner, J., 
dissenting from denial of rehearing en banc). 

21 

short a time will seldom be viewed by the accused as a trivial 
or ‘petty’ matter.” Ibid. (quoting Baldwin v. New York, 399 
U.S. 66, 73 (1970)). As a result, when counsel fails to meet 
minimum competence standards, and the deficient perform- 
ance deprives the defendant of a legal right thereby causing 
a demonstrable increase in his sentence, the sentencing 
proceedings do not meet the standards of fundamental 
fairness that the Strickland test serves to protect. 

The court of appeals’ test has also proved unworkable. 
The court has not explained when an increase in a sentence 
is significant enough to warrant collateral relief. Indeed, 
there is no apparent objective test for formulating such 
guidance, nor is there a body of case law that might even 
arbitrarily establish what sort of potential decreases would 
be deemed significant. In Durrive itself, the difference 
would have been at least a one-year reduction in a ten-year 
sentence, and the court found that change not “significant.” 
4 F.3d at 551. The court suggested that offense level 
differences of “two or three steps,” ibid., would similarly be 
insignificant, but it did not so hold. In Martin, the court 
described the Durrive test as a “rule of proportionality: the 
sort of increase produced by a few levels’ difference in 
sentencing calculations cannot be raised indirectly on collat- 
eral attack by complaining about counsel’s work.” 109 F.3d 
at 1178. But, as the district court observed, “ ‘few’ is not a 
precise term and the Seventh Circuit does not indicate how 
the difference in length of sentence should be considered.” 
J.A. 46. 

A two-level change can have vastly different conse- 
quences in different sections of the Sentencing Table.7 At 

7 “The Sentencing Table provides a matrix of sentencing ranges. On 
the vertical axis of the matrix is the defendant’s offense level representing 
the seriousness of the crime; on the horizontal axis is the defendant’s 
criminal history category. The sentencing range is determined by 
identifying the intersection of the defendant’s offense level and his 

22 

the top of the Sentencing Table, a two-level change could 
result in a difference of nearly 12 years.8 And at the bottom 
of the Table, a two-level change could make the difference 
between a year in prison and probation.9 The court of 
appeals did not indicate whether either of these reductions 
would be “significant,” nor has it answered basic questions 
about how the “significance” standard is to be applied. See, 

e.g., Allen v. United States, 175 F.3d 560, 563 (7th Cir.), cert. 
denied, 120 S. Ct. 432 (1999); Martin, 109 F.3d at 1183-1184 
(Rovner, J., dissenting from denial of rehearing en banc) (“If 
an increase of eight or nine years is not ‘significant,’ what is? 
Does the ‘significance’ depend on the overall length of the 
petitioner’s term? In other words, would an increase of a 
year be ‘insignificant’ for someone serving a ten-year term, 
but ‘significant’ for someone serving a two-year term? 
Durrive leaves such questions unanswered, freeing individ- 
ual judges and panels to reach their own conclusions.”). 

Thus, although the Seventh Circuit properly expressed 
concern that ineffective assistance of counsel claims should 
not be a vehicle for routinely relitigating questions under the 
Sentencing Guidelines, its test for prejudice is an incorrect 

criminal history category.” Nichols v. United States, 511 U.S. 738, 740-741 

n.3 (1994). See App., infra, 17a. 

8 A defendant who is in criminal history category VI and has an 
offense level of 36 would have a sentencing range of 324 to 405 months of 
imprisonment. A reduction of two offense levels, however, would yield a 
sentencing range of 262 to 327 months of imprisonment. The top of the 
first range (405 months) is 143 months greater than the bottom of second 
range. Even selecting the midpoint of the two ranges as a basis for 
comparison yields a potential reduction in sentence of 70 months. See 
App., infra, 17a. 

9 A defendant who is in criminal history category I with an offense 
level of 10 faces 6-12 months of imprisonment. A reduction of two offense 
levels, however, would yield a sentencing range of 0 to 6 months of impris- 
onment and make the defendant eligible for probation. See App., infra, 
17a; Guidelines § 5B1.1. 

23 

application of Strickland. Even though Sentencing Guide- 
lines claims are not themselves cognizable on collateral 
review when the defendant was adequately represented, a 
constitutional claim of ineffective assistance based on coun- 
sel’s failure to raise a Guidelines claim is cognizable when 
representation was deficient. Cf. Kimmelman, 477 U.S. at 
373-383 (holding that ineffective assistance of counsel claims 
based on incompetent representation with respect to a 
Fourth Amendment issue are cognizable on collateral review 
even though collateral relief would not be available for the 
underlying Fourth Amendment claim). And, because a 
variety of legal determinations may have a measurable effect 
on the length of a Guidelines sentence, it may sometimes be 
possible to show that counsel’s lapse has caused actual harm 
to the defendant. In such a case, collateral relief is war- 
ranted. 

Of course, courts should scrupulously avoid treating a 
mere Guidelines error as equivalent to deficient performance 
by counsel. The nature of noncapital sentencing, even under 
the Guidelines, means that only in the rare case will a 
defendant be able to show that his attorney’s performance 
fell outside “the wide range of reasonable professional 
assistance.” Strickland, 466 U.S. at 689. Indeed, a proper 
application of the performance inquiry addresses many of 
the concerns that animated the court of appeals to adopt its 
heightened test for prejudice. See Arredondo, 178 F.3d at 
784 (agreeing that “slight failings” by counsel are not enough 
to establish constitutionally deficient representation but 
suggesting that the “degree of the attorney’s error may 
better be evaluated directly, under Strickland’s performance 
prong.”). 

Nevertheless, when a defendant can make the “highly 
demanding” showing (Kimmelman, 477 U.S. at 382) that his 
“counsel was not functioning as the ‘counsel’ guaranteed the 
defendant by the Sixth Amendment” (Strickland, 466 U.S. at 
687), and his sentence is demonstrably higher than the 

24 

correct Guidelines range, he should not be barred from 
collateral relief on the view that the additional punishment 
at stake is not “significant.” A defendant must show both 
deficient performance and prejudice to prevail, and a court 
need not reach both of those interrelated components of a 
Strickland claim if analysis of one will resolve the case. 
Strickland, 466 U.S. at 697. But to elucidate how we part 
company with the analysis of the court of appeals, it is 
appropriate to undertake a complete examination of both the 
performance inquiry and the prejudice inquiry as applied in 
this case. 

10 

B. Counsel’s Failure To Argue That Petitioner’s Money 

Laundering And Racketeering Offenses Should Be 
Grouped Was Not Deficient Performance 

Petitioner’s complaints about counsel’s performance con- 
cern counsel’s advocacy on the issue whether petitioner’s 
money laundering offenses should have been grouped with 

10 Petitioner contends (Pet. Br. 9 & n.2) that the performance inquiry is 
not properly before the Court. That contention misconceives the relation- 
ship between the two inquiries, a relationship that petitioner himself rec- 
ognizes elsewhere in his brief (see id. at 29). The performance and 
prejudice considerations are not independent claims one of which is for- 
feited if not pressed in a lower court. Rather, they are arguments 
concerning the unitary claim of ineffective assistance of counsel. And it is 
well settled that, “[o]nce a federal claim is properly presented, a party can 
make any argument in support of that claim; parties are not limited to the 
precise arguments they made below.” Lebron v. National R.R. Passenger 
Corp., 513 U.S. 374, 379 (1994) (quoting Yee v. City of Escondido, 503 U.S. 
519, 534 (1992)). In any event, the Court has discretion to consider a claim 
even though it was not raised in the court of appeals, see, e.g., Capital 
Cities Cable, Inc. v. Crisp, 467 U.S. 691, 697-698 (1984), and that course is 
warranted here. The government made the performance argument in 
both the district court and our brief in opposition to the petition for certio- 
rari. J.A. 44; Br. in Opp. 7-9. We did not make the performance argument 
in the court of appeals because the district court’s ruling addressed only 
prejudice, and its analysis was mandated by circuit precedent. See Gov’t 
C.A. Br. 6-19 (collateral review). 

25 

his conspiracy and labor racketeering offenses under Guide- 
lines § 3D1.2. In his motion to correct his sentence under 28 
U.S.C. 2255 (1994 & Supp. IV 1998), petitioner contended 
that counsel was ineffective in failing to argue the grouping 
issue adequately at sentencing and in failing to raise it at all 
on appeal. J.A. 34-41. 

In this Court, petitioner reiterates his belief that counsel 
performed deficiently by not raising the grouping issue or 
alerting the court of appeals to United States v. Wilson, 98 
F.3d 281 (7th Cir. 1996), which petitioner considers control- 
ling precedent on the issue, and which was issued after 
briefing and argument but before petitioner’s appeal was 
decided. Pet. Br. 19. Petitioner contends that, but for coun- 
sel’s failings, his Guidelines range would have been lower, 
and he would have received a sentence between 6 and 21 
months shorter than the 84 month sentence he actually 
received. Ibid. Such a sentencing disparity, he continues, 
satisfies the prejudice inquiry set out in Strickland (id. at 19- 

20), and the court of appeals erred in departing from the 
Strickland standard by requiring a more “significant” dis- 
parity (id. at 8-18, 20-34). 

11 

Although we agree with petitioner that the court of 
appeals did not apply the correct prejudice inquiry, we do 
not believe that petitioner was denied effective assistance of 
counsel. In the remainder of this section of the brief, we 
explain why counsel’s failure to raise the grouping issue did 
not constitute deficient performance. In the final section of 
the brief, we further explain why counsel’s failure did not 
cause petitioner any prejudice cognizable under the Strick- 
land standard. 

11 Although petitioner appears to focus his argument in this Court on 
counsel’s effectiveness on direct appeal, see Pet. i; Br. 19, we have ad- 
dressed counsel’s effectiveness at the sentencing proceeding as well 
because it is not clear whether petitioner has abandoned his claim that 
counsel was ineffective at that proceeding. 

26 

1. In order to show that his counsel’s performance was 
constitutionally deficient, petitioner must show that “counsel 
made errors so serious that counsel was not functioning as 
the ‘counsel’ guaranteed the defendant by the Sixth Amend- 
ment.” Strickland, 466 U.S. at 687. That requires a demon- 
stration that “counsel’s representation fell below an objec- 
tive standard of reasonableness.” Id. at 669. Moreover, be- 
cause “[i]ntensive scrutiny of counsel and rigid requirements 
for acceptable assistance could dampen the ardor and impair 
the independence of defense counsel, discourage the accep- 
tance of assigned cases, and undermine the trust between 
attorney and client,” id at 690, this Court has stressed that 
“[j]udicial scrutiny of counsel’s performance must be highly 
deferential,” id. at 689. Petitioner therefore must overcome 
“a strong presumption that counsel’s conduct falls within the 
wide range of reasonable professional assistance; that is, 
[petitioner] must overcome the presumption that, under the 
circumstances, the challenged action ‘might be considered 
sound * * * strategy.’ ” Id. at 689 (quoting Michel v. 
Louisiana, 350 U.S. 91, 100-101 (1955)). 

There is a significant danger that an examination of coun- 
sel’s actions after they have proved unsuccessful will lead a 
court to second-guess what were at the time quite reason- 
able decisions. See Strickland, 466 U.S. at 689. For that 
reason, in assessing counsel’s performance, the Court must 
make “every effort * * * to eliminate the distorting effects 
of hindsight, to reconstruct the circumstances of counsel’s 
challenged conduct, and to evaluate the conduct from coun- 
sel’s perspective at the time.” Ibid.; see Murray, 477 U.S. at 
536. 

The nature of Guidelines sentencing makes particularly 
relevant this Court’s guidance concerning effective assis- 
tance on appeal. An appellate lawyer need not raise every 
issue available but “may select from among [potential issues] 
in order to maximize the likelihood of success on appeal.” 
Robbins, 120 S. Ct. at 765; Barnes, 463 U.S. at 754. Indeed, 

27 

this process of “winnowing out” issues and “focusing on one 
central issue if possible” (id. at 751) “is the hallmark of 
effective appellate advocacy” (Murray, 477 U.S. at 536). In 
challenging the effectiveness of appellate counsel, this Court 
has said that the defendant cannot prevail if he cannot show 
that the claim that counsel failed to raise “was clearly 
stronger than issues that counsel did present.” Robbins, 120 
S. Ct. at 766. Accordingly, although it is “possible to bring a 
Strickland claim based on counsel’s failure to raise a 
particular claim [on appeal],” “it is difficult to demonstrate 
that counsel was incompetent.” Id. at 765. 

In Guidelines sentencing, issue selection is important not 
only on appeal but also at the sentencing itself. Under the 
Guidelines system, a probation officer prepares a presen- 
tence investigation report that contains not only information 
about the defendant and the offenses he committed but also 
recommendations about the appropriate classification of the 
offense and the defendant’s criminal history under the 
criteria in the Guidelines, the appropriate Guidelines range, 
and whether departure is warranted. See Fed. R. Crim. P. 
32(b). Just as an appellate tribunal’s receptiveness to the 
suggestion that a lower court has erred “declines as the 
number of assigned errors increases,” Barnes, 463 U.S. at 
752 (quoting Robert Jackson, Advocacy Before the United 
States Supreme Court, 25 Temple L.Q. 115, 119 (1951)), the 
sentencing court’s receptiveness to the suggestion that the 
presentence report overlooked or misapplied Guidelines pro- 
visions decreases with the number of suggested errors. 
Moreover, counsel must continuously bear in mind, in 
choosing how many claims to present and how forcefully to 
advance each of them, that the sentencer retains a great deal 
of unreviewable discretion. How the sentencing court exer- 
cises that discretion will often have more impact on the de- 
fendant’s sentence than how the court resolves a claim con- 
cerning the proper offense level or criminal history category. 

28 

Issue selection in the Guidelines context is not only 
especially important but also particularly dependent on the 
exercise of strategic judgment. Before deciding whether to 
press a particular claim, counsel must assess both the pros- 
pects of prevailing and the magnitude of the possible benefit. 
As a result of the complexity of the Guidelines, the limited 
impact of small changes in the offense level or criminal 
history category, the overlap among sentencing ranges, and 
the discretion retained by the sentencing judge, those as- 
sessments are often fraught with uncertainty. For example, 
counsel might decide to press a claim that he believes has 
only a 40% chance of success rather than one with a 60% 
chance, because the riskier claim, if successful, would have a 
greater impact on the applicable sentencing range. Or 
counsel might forego a claim because, depending on how the 
sentencing judge or the court of appeals resolved an unset- 
tled issue of Guidelines interpretation, the factor could just 
as likely increase as decrease the applicable sentencing 
range. Even if there were no danger of unintended adverse 
consequences, counsel might reject a claim in favor of press- 
ing others because, although the rejected claim would affect 
the defendant’s offense level or criminal history points, the 
change would not affect the sentencing range. Or counsel 
might decide that, even if a claim would shift the sentencing 
range, the shift in the range would not likely affect the 
defendant’s actual sentence because of a substantial overlap 
between the ranges. 

12 

12 The Sentencing Commission specifically structured the Sentencing 
Table with overlapping ranges in order to reduce such litigation. “Each 
level in the [sentencing] table prescribes ranges that overlap with the 
ranges in the preceding and succeeding levels. By overlapping the ranges, 
the table should discourage unnecessary litigation. Both prosecution and 
defense will realize that the difference between one level and another will 
not necessarily make a difference in the sentence that the court imposes.” 
U.S.S.G. Ch. 1, Pt. A.4(h). 

29 

Because of these complexities, a court reviewing counsel’s 
performance must be especially careful that its evaluation is 
not clouded by the distorting effects of hindsight. A review- 
ing court will rarely be able to conclude that an attorney 
performed deficiently in electing to forego an argument that 
had the prospect of yielding (at most) an insignificant bene- 
fit. See Arredondo, 178 F.3d at 787 (“A reasonable attorney 
might choose not to quibble over small discrepancies that 
ultimately would not affect the client’s sentence.”). More- 
over, because “[t]he Sixth Amendment does not require 
counsel to forecast changes or advances in the law” (Lilly v. 
Gilmore, 988 F.2d 783, 786 (7th Cir.), cert. denied, 510 U.S. 
852 (1993)), an attorney does not act unreasonably in failing 
to raise a claim when there is not case law or a specific 
Guidelines provision on point. See United States v. Seyfert, 
67 F.3d 544, 547 (5th Cir. 1995). “It will often be the case 
that even the most informed counsel will fail to anticipate” 
changes in the law. Murray, 477 U.S. at 536. Therefore, 
unless it was plain, based on “directly controlling precedent,” 
United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000), or 
clear language in the Guidelines, that a claim would have had 
an actual positive impact on the defendant’s sentence, a 
reviewing court should not second-guess counsel’s decision 
to forego the claim or not press it strongly at sentencing or 
to abandon the claim on appeal. 

2. a. Under the principles outlined above, petitioner’s 
counsel did not perform deficiently by failing to press the 
grouping argument more strongly at sentencing. Counsel 
objected to the failure to group and thereby preserved the 
issue for appellate review. J.A. 89. Counsel also explained 
to the district court the reason that counsel believed that 
grouping was appropriate—petitioner’s offenses (in his view) 
were part of “one joint effort.” Ibid. Counsel otherwise 
devoted his efforts to other issues, such as opposing upward 
adjustments in petitioner’s offense level for obstruction of 
justice and for a leadership role in the offense, as well as 

30 

arguing that mitigating factors warranted a sentence at the 
low end of the applicable range. Indeed, counsel succeeded 
in convincing the court that an upward adjustment was not 
warranted for petitioner’s role in the offense. See p. 3, 
supra. 

Petitioner faults counsel for not arguing the grouping 
issue more forcefully and points in particular to counsel’s 
failure to respond to the position paper that the government 
submitted on the issue, which contained out-of-circuit prece- 
dent in support of the government’s position. See J.A. 37-38. 
Counsel’s decision not to press the argument more strongly 
at sentencing, however, was not outside “the wide range of 
reasonable professional assistance.” Strickland, 466 U.S. at 
689. As we explain below (see pp. 39-44, infra), the grouping 
argument lacks merit, and counsel does not act unreasonably 
in failing to present a meritless claim. Moreover, setting 
aside the claim’s intrinsic lack of merit, the claim had little 
prospect of success at the time of sentencing. As the gov- 
ernment explained in its position paper to the district court, 
see J.A. 89, at that time, no precedent of this Court or the 
Seventh Circuit established that petitioner’s money launder- 
ing and labor racketeering offenses should be grouped 
together; moreover, the First, Ninth, and Tenth Circuits had 
all rejected grouping of fraud offenses with money launder- 
ing offenses. See United States v. Kunzman, 54 F.3d 1522, 
1530-1531 (10th Cir. 1995); United States v. Lombardi, 5 F.3d 
568, 570-571 (1st Cir. 1993); United States v. Taylor, 984 F.2d 
298, 302-303 (9th Cir. 1993); United States v. Johnson, 971 
F.2d 562, 575-576 (10th Cir. 1992); cf. United States v. 
Harper, 972 F.2d 321, 321-323 (11th Cir. 1992) (rejecting 
grouping of drug trafficking and money laundering); United 
States v. Porter, 909 F.2d 789, 792-793 (4th Cir. 1990) (reject- 
ing grouping of gambling and money laundering). The Fifth 
and Third Circuits had held that grouping was appropriate in 
some circumstances. See United States v. Leonard, 61 F.3d 
1181, 1185-1186 (5th Cir. 1995); United States v. Cusumano, 

31 

943 F.2d 305, 312-314 (3d Cir. 1991), cert. denied, 502 U.S. 
1036 (1992). Those decisions did not necessarily support 
grouping of petitioner’s offenses, however, because they ap- 
proved grouping when the “money laundering activities of 
the defendants perpetuate the underlying crimes” and the 
offenses are therefore a “single, integrated scheme” 
(Leonard, 61 F.3d at 1186), a circumstance not present in 
petitioner’s case (see J.A. 130-135). 

Not only was there little likelihood that the grouping 
claim would prevail, but there was a significant possibility 
that grouping petitioner’s offenses would result in an in- 
crease in his sentence. As we explain in more detail below 
(see pp. 44-48, infra), although grouping under Guidelines 
§ 3D1.2(c) (as the PSR had recommended) would have re- 
sulted in a reduction in petitioner’s offense level and sen- 
tencing range, grouping under Guidelines § 3D1.2(d) would 
have resulted in an increase in the offense level and sentenc- 
ing range. And the chance that the court (if it grouped the 
offenses at all) would group them under subsection (d) rather 
than (c) was not insubstantial: The Fifth Circuit decision 
approving grouping had done so under subsection (d). See 
Leonard, 61 F.3d at 1185. Moreover, the Seventh Circuit’s 
later decision in Wilson, 98 F.3d at 284, on which petitioner 
relies in asserting that counsel’s error prejudiced him (Pet. 
Br. 19), approved grouping under subsection (d). 

13 In light 

13 Indeed, in Wilson itself, grouping under subsection (d) increased the 
offense level and thus should have resulted in a longer sentence. See 
United States v. Wilson, 131 F.3d 1250, 1251 (7th Cir. 1997). The court of 
appeals ultimately concluded, on Wilson’s second appeal, that the in- 
creased offense level could not be imposed, because of a waiver by the 
government. Id. at 1253-1254. We disagree with the court’s waiver 
analysis, see note 19, infra, but the salient point here is that, in 1996, 
petitioner’s counsel could have reasonably concluded that grouping under 
subsection (d) would leave his client worse off, not better off, and no 
counsel could have foreseen the Seventh Circuit’s waiver holding in the 
second Wilson appeal. 

32 

of these considerations, counsel’s decision not to press the 
grouping issue more forcefully at sentencing was not 
unreasonable. 

b. For similar reasons, counsel did not perform defi- 
ciently in failing to raise the grouping issue on appeal. The 
fact that counsel raised the issue at sentencing shows that 
his decision to bypass the issue on appeal was not the result 
of ignorance of the factual or legal basis for the claim; rather 
he made a tactical decision to focus on other claims in order 
“to maximize the likelihood of success.” Robbins, 120 S. Ct. 
at 765. Such “strategic choices made after thorough investi- 
gation of law and facts relevant to plausible options are 
virtually unchallengeable.” Strickland, 466 U.S. at 690. 
Counsel’s primary argument on direct appeal was that the 
district court abused its discretion in admitting into evidence 
a portion of the transcript of petitioner’s testimony from his 
first trial while denying his request, under Federal Rule of 
Evidence 106, to admit nearly all of that testimony for the 
purpose of placing that portion in a proper context. If 
successful, this claim would have required reversal of peti- 
tioner’s convictions. The court of appeals rejected the claim 
on the ground that petitioner had failed to establish the need 
to introduce nearly all of the testimony from his first trial 
(J.A. 138-145), despite petitioner’s argument that editing the 
testimony would have created a “choppy montage” devoid of 
“temporal continuity” and left the jury with an “incomplete 
impression of the evidence” (Pet. C.A. Br. 19 (direct appeal)). 
In addition, counsel raised a challenge to petitioner’s 
sentence—that the district court’s decision to increase 
petitioner’s base offense level for obstruction of justice 
(based on the court’s finding that petitioner perjured himself 
at his first trial) lacked an adequate factual basis. J.A. 145. 
If successful, that contention would have reduced peti- 
tioner’s offense level by two levels and lowered his sentenc- 
ing range below the sentence that he had received. The 
court of appeals considered the two issues that counsel 

33 

raised sufficiently substantial to warrant detailed discussion 
and refutation in a several page published opinion. See J.A. 
129-147. 

It was not unreasonable for counsel to focus on those 
other issues rather than grouping. At the time that counsel 
determined his strategy and prepared his brief in April 1996, 
there was still no Seventh Circuit precedent on point on the 
grouping issue. The Eleventh Circuit had weighed in on the 
side of grouping money laundering with underlying fraud 
offenses, but that court (like the courts that had approved 
grouping at the time of petitioner’s sentencing) had relied on 
the fact that the laundered funds were reinvested in the 
fraudulent scheme. See United States v. Mullens, 65 F.3d 
1560, 1564 (11th Cir. 1995), cert. denied, 517 U.S. 1112 
(1996). 

14 That is not true in petitioner’s case. J.A. 130-135. 
Moreover, the Eleventh Circuit (like the Fifth Circuit in 
Leonard, 61 F.3d at 1185) held that grouping was required 
under Guidelines § 3D1.2(d), which would have resulted in an 
increase rather than a decrease in petitioner’s sentence. See 
pp. 44-48, infra. Because it was far from certain that raising 
the grouping issue would have had an actual positive impact 
on petitioner’s sentence, counsel’s decision to forego that 
issue in favor of others that he viewed as more promising 
was reasonable. 

14 Since then, two more courts have rejected grouping. See United 
States v. Napoli, 179 F.3d 1, 8-12 (2d Cir. 1999), cert. denied, 120 S. Ct. 
1176 (2000); United States v. O’Kane, 155 F.3d 969, 973-974 (8th Cir. 1998); 
see also United States v. Kneeland, 148 F.3d 6, 15 (1st Cir. 1998). One 
additional court has endorsed grouping when the laundered funds are 
reinvested in the fraudulent scheme, see United States v. Walker, 112 
F.3d 163, 167 (4th Cir. 1997), but no grouping when they are not. See 
United States v. McMahon, 133 F.3d 918 (4th Cir. 1997) (Table). Similarly, 
the Eleventh Circuit has declined to require grouping when the laundered 
funds are not used to perpetuate the fraud. See United States v. Mc- 
Clendon, 195 F.3d 598, 602 (1999). 

34 

The Seventh Circuit’s decision in United States v. Wilson, 
98 F.3d 281 (1996), which was issued one month after oral 
argument in petitioner’s appeal, and which endorsed 
grouping of money laundering offenses with underlying 
fraud offenses under Guidelines § 3D1.2(d), does not alter 
that conclusion. Even if the Wilson decision were helpful to 
petitioner, counsel’s failure to anticipate it would not 
establish that his performance was deficient. Counsel’s 
decisions must be evaluated from his perspective at the time 
he made them, see Murray, 477 U.S. at 536, and it was far 
from certain at that time that the grouping argument would 
prevail and result in an actual decrease in petitioner’s 
sentence. 

Because Wilson was decided before the court of appeals 
issued its decision in this case (but after briefing and oral 
argument), petitioner faults counsel for failing to raise the 
grouping issue in a supplemental filing. Pet. 6; Br. 19. By 
that time, however, any grouping issue was waived. It is 
well settled that an appellant waives consideration of a claim 
advanced for the first time in a reply brief or later filing. 
See, e.g., Dunham v. Kisak, 192 F.3d 1104, 1110 (7th Cir. 
1999); United States v. Universal Mgmt. Servs., Inc., 191 
F.3d 750, 759 (6th Cir. 1999), cert. denied, 120 S. Ct. 2740 
(2000); Orsini v. Wallace, 913 F.2d 474, 476 n.2 (8th Cir. 
1990), cert. denied, 498 U.S. 1128 (1991). It is especially ap- 
propriate that an appellant’s failure to raise a claim in his 
initial brief be deemed a waiver where, as here, the availabil- 
ity of the claim was known to him when he prepared the 
brief, and he made a reasonable tactical decision not to raise 
it. Accordingly, petitioner’s counsel did not provide ineffec- 
tive representation by declining to raise belatedly a claim 
that he had previously waived. 

35 

C. Petitioner Was Not Prejudiced By Counsel’s Failure To 

Raise The Grouping Claim 

1. Counsel’s failure to press the grouping claim more 
strongly at sentencing or to raise the claim on appeal also did 
not prejudice petitioner. In Strickland, the Court held that, 
in order to show prejudice, a defendant must show that 
“there is a reasonable probability that, but for counsel’s un- 
professional errors, the result of the proceeding would have 
been different.” 466 U.S. at 694. Therefore, with respect to 
his claim of ineffectiveness at sentencing, petitioner must 
show that there is a reasonable probability that, absent 
counsel’s error, he would have received a shorter sentence. 
See, e.g., United States v. Soto, 132 F.3d 56, 59 (D.C. Cir. 
1997); United States v. Breckenridge, 93 F.3d 132, 136 (4th 
Cir. 1996); United States v. Headley, 923 F.2d 1079, 1084 (3d 
Cir. 1991); United States v. Ford, 918 F.2d 1343, 1350 (8th 
Cir. 1990). And, as to his claim of ineffectiveness on appeal, 
petitioner must show that there is a reasonable probability 
that, but for counsel’s error, he would “have prevailed on his 
appeal.” Robbins, 120 S. Ct. at 764. E.g., United States v. 
Mannino, 212 F.3d 835, 844 (3d Cir. 2000); United States v. 
Williamson, 183 F.3d 458, 463-464 (5th Cir. 1999); United 
States v. Lopez, 100 F.3d 113, 119-121 (10th Cir. 1996). 

The reasonable probability test is “highly demanding.” 
Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). Because 
the test is designed to determine whether counsel’s error 
“actually had an adverse effect on the defense,” Roe v. 

Flores-Ortega, 120 S. Ct. 1029, 1037 (2000) (quoting Strick- 
land, 466 U.S. at 693), petitioner must overcome the “strong 
presumption” that the result of the relevant proceeding was 
reliable. Ibid. (citing Robbins, 120 S. Ct. at 765 (citing 
Strickland, 466 U.S. at 696)). It is not sufficient to show that 
counsel’s purported failings had a “conceivable effect on the 
outcome.” Strickland, 466 U.S. at 693. Nor is it enough to 
show a “reasonable possibility” of a different outcome. See 

36 

Strickler v. Greene, 527 U.S. 263, 291 (1999) (applying 
identical Brady prejudice standard). 

Sentencing proceeding prejudice. Because of the nature of 
the Guidelines system, it will often be difficult for a defen- 
dant to establish the necessary degree of probability that an 
omitted legal claim (even if meritorious) would have affected 
the outcome of the sentencing proceeding. In particular, a 
defendant who cannot demonstrate that presentation of the 
omitted claim would have resulted in a reduction in his 
Guidelines range to a point below the sentence that he 
received will not be able to make the requisite showing. The 
reasonable probability test is premised on the existence of 
“standards that govern the decision,” and “[t]he assessment 
of prejudice should proceed on the assumption that the 
decisionmaker is reasonably, conscientiously, and impartially 
applying” those standards. Strickland, 466 U.S. at 695. The 
sentencing court, however, has almost complete discretion to 
select a sentence from within the applicable Guidelines 
range. In addition, the prejudice determination “should not 
depend on the idiosyncracies of the particular decisionmaker, 
such as unusual propensities toward harshness or leniency.” 
Ibid. Neither the usual sentencing practices of the judge 
who sentenced the defendant nor evidence of what that 
particular judge might have done absent counsel’s errors 
may permissibly inform the prejudice determination. See id. 
at 695, 700. Therefore, it will generally be impossible to 
determine what sentence a court would have selected from 
within the applicable Guidelines range. As a consequence, 
when the legal claim that counsel failed to present ade- 
quately would not have resulted in a Guidelines range below 
the defendant’s sentence, the defendant will be unable “to 
establish a reasonable probability of a different result.” 
Strickler, 527 U.S. at 291. E.g., United States v. Segler, 37 
F.3d 1131, 1136 (5th Cir. 1994). 

The same conclusion does not hold, however, for a defen- 
dant who can demonstrate that he received a sentence that 

37 

exceeded the Guidelines range that would have applied to 
him if his counsel had not omitted a meritorious claim. 
Because departures from the applicable range are unusual, 
see Koon v. United States, 518 U.S. 81, 98 (1996), a defendant 
who establishes that, but for his counsel’s error, his sentence 
was outside the correct sentencing range will generally es- 
tablish a reasonable probability that, but for counsel’s error, 
he would have received a shorter sentence. 

Appellate prejudice. When a defendant claims ineffective 
assistance on appeal, the appropriate focus for assessing 
prejudice is on the outcome of the appellate proceeding. 
Therefore, if the defendant shows that counsel unreasonably 
failed to raise a meritorious legal issue that would have re- 
sulted in a remand for resentencing, the defendant has 
shown prejudice under the applicable standard. See, e.g., 
Mannino, 212 F.3d at 844; Phillips, 210 F.3d at 350 (“In the 
appellate context, the prejudice prong first requires a 
showing that we would have afforded relief on appeal.”). 
Some courts of appeals have held that a defendant may ap- 
peal his sentence on the ground that the district court em- 
ployed an erroneous sentencing range, even if, because of 
overlap among ranges, the sentence that the defendant re- 
ceived fell within the range that the defendant contends 
should have applied. See United States v. Lavoie, 19 F.3d 
1102, 1103 (6th Cir. 1994); United States v. Fuente-Kol- 
benschlag, 878 F.2d 1377, 1379 (11th Cir. 1989). Assuming 
those decisions are correct, a defendant may in some circum- 
stances be able to show prejudice from counsel’s purportedly 
deficient performance on appeal even though the sentence 
that the defendant received is within the sentencing range 
that would have applied on remand from the appeal. The 
defendant will, however, usually be unable to show that 
counsel’s performance was in fact deficient under those cir- 
cumstances. As we noted in discussing the performance in- 
quiry, a reviewing court will rarely be able to conclude that 
counsel acted unreasonably in deciding not to press a claim 

38 

that would not have had a certain and positive impact on the 
defendant’s sentence. See p. 29, supra. 

2. Petitioner contends that, if his counsel had compe- 
tently argued that his money laundering offenses should 
have been grouped with his labor racketeering offenses, his 
sentencing range would have been 63 to 78 months, which is 
below the 84 month sentence that he received. Pet. Br. 19. 
If petitioner’s contention were correct, he would have shown 
a reasonable probability of a different outcome on appeal 
because the court of appeals would have remanded for resen- 
tencing. And he would have shown a reasonable probability 
of a different outcome at sentencing because, as we have 
explained, it is reasonably probable that the district court 
would have sentenced him within the applicable, lower 
range. 

Petitioner’s contention is not correct, however, for two 
reasons: First, his contention depends on the assumption 
that the grouping claim has merit. In fact, the claim is not 
meritorious. Second, even if petitioner were correct that his 
money laundering and labor racketeering offenses should 
have been grouped under Guidelines § 3D1.2(d), grouping 
under subsection (d) should increase rather than decrease 
the applicable Guidelines range. We address each of these 
points in turn. 

a. When a claim of ineffectiveness is based on counsel’s 
failure to advance (or competently to advance) a particular 
legal claim, the defendant cannot show a reasonable prob- 
ability of a different outcome unless he establishes that the 
claim has merit. See Kimmelman, 477 U.S. at 375 (explain- 
ing that “in order to demonstrate actual prejudice” from 
“defense counsel’s failure to litigate a Fourth Amendment 
claim competently, * * * the defendant must * * * prove 
that his Fourth Amendment claim is meritorious”). Peti- 
tioner therefore must show that his grouping claim has 
merit. 

39 

Petitioner cannot make that showing in this Court simply 
by relying on the Seventh Circuit’s holding in Wilson, 98 
F.3d at 284, that grouping is required by Guidelines 
§ 3D1.2(d). This Court has explained that “the likelihood of a 
different outcome attributable to an incorrect interpretation 
of the law should be regarded as a potential ‘windfall’ to the 
defendant rather than the legitimate ‘prejudice’ contem- 
plated by [the Court’s] opinion in Strickland.” Williams v. 
Taylor, 120 S. Ct. 1495, 1512 (2000); see Lockhart v. Fret- 
well, 506 U.S. 364, 369-372 (1993). Thus, in order to show 
cognizable prejudice from counsel’s performance either at 
sentencing or on appeal, petitioner must show that he has a 
“right” to grouping under the Guidelines. Williams, 120 S. 
Ct. at 1513. 

Petitioner has no such right. Guidelines § 3D1 provides 
rules for determining a single offense level that encompasses 
all of the counts of which a defendant is convicted. See 
U.S.S.G. Ch. 3, Pt. D, intro. comment. “In order to limit the 
significance of the formal charging decision and to prevent 
multiple punishment for substantially identical offense con- 
duct” (ibid.), § 3D1 requires grouping of counts “involving 
substantially the same harm” (Guidelines § 3D1.2). The 
principle underlying the grouping rules is that conviction on 
an additional count should not result in a sentence enhance- 
ment unless the additional count “represent[s] additional 
conduct that is not otherwise accounted for by the guide- 
lines.” U.S.S.G. Ch. 3, Pt. D, intro. comment. 

Guidelines § 3D1.2 provides that “[a]ll counts involving 
substantially the same harm shall be grouped together into a 
single Group.” The Section then goes on to specify the four 
circumstances in which that condition is met: 

(a) When counts involve the same victim and the 
same act or transaction. 

(b) When counts involve the same victim and two or 
more acts or transactions connected by a common 

40 

criminal objective or constituting part of a com- 
mon 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. 

Guidelines § 3D1.2. Petitioner’s money laundering and labor 
racketeering offenses fit none of the four circumstances. 

Subsection (a). Petitioner acknowledged in his Section 
2255 motion that grouping is not appropriate under sub- 
section (a) because his money laundering was a separate act 
or transaction from his labor racketeering. J.A. 25. 

Subsection (b). Grouping is also not appropriate under 
subsection (b) because petitioner’s money laundering and his 
labor racketeering had separate victims. Petitioner’s labor 
racketeering, which involved his solicitation and receipt of 
kickbacks in exchange for funneling Union investments to 
particular brokers, was a crime against the Union. Peti- 
tioner’s money laundering, by contrast, had no identifiable 
victim. Rather, money laundering is a crime against society 
in general. See, e.g., United States v. Napoli, 179 F.3d 1, 7-8 
(2d Cir. 1999), cert. denied, 120 S. Ct. 1176 (2000); United 
States v. Kunzman, 54 F.3d 1522, 1531 (10th Cir. 1995); 
United States v. Lombardi, 5 F.3d 568, 570 (1st Cir. 1993); 
United States v. Harper, 972 F.2d 321, 322 (11th Cir. 1992). 
Money laundering “harms society’s interest in discovering 
and deterring criminal conduct, because by laundering the 

41 

proceeds of crime, the criminal vests that money with the 
appearance of legitimacy.” United States v. O’Kane, 155 
F.3d 969, 972 (8th Cir. 1998). 

The Commentary to the Guidelines makes clear that 
“[t]he term ‘victim’ [in Section 3D1.2] is not intended to 
include indirect or secondary victims. * * * For offenses in 
which there are no identifiable victims (e.g., drug or immi- 
gration offenses, where society at large is the victim), the 
‘victim’ for purposes of subsections (a) and (b) is the societal 
interest that is harmed.” Guidelines § 3D1.2, comment. (n.2). 
Thus, petitioner’s money laundering and labor racketeering 
offenses had different victims within the meaning of subsec- 
tion (b) and should not have been grouped under that subsec- 
tion. See O’Kane, 155 F.3d at 972; Kunzman, 54 F.3d at 
1531; Lombardi, 5 F.3d at 570. 

15 

Subsection (c). Grouping petitioner’s labor racketeering 
offenses with his money laundering offenses also is not 
appropriate under subsection (c). That subsection “prevents 
‘double counting’ of offense behavior.” Guidelines § 3D1.2, 
comment. (n.5). It therefore requires grouping when “one of 
the counts embodies conduct that is treated as a specific 
offense characteristic in, or other adjustment to, the guide- 
line applicable to another of the counts.” Guidelines 
§ 3D1.2(c). The conduct involved in money laundering is not 
treated as a specific offense characteristic in labor racketeer- 
ing. See Guidelines §§ 2E1.1(a), 2E5.1(b). Nor is the conduct 
involved in labor racketeering treated as a specific 
offense characteristic in money laundering. See Guidelines 
§ 2S1.1(b). Moreover, petitioner’s labor racketeering offense 
level was not adjusted upward because of his money launder- 

15 Some courts have concluded that money laundering has the same 
victim as the underlying fraud when the laundered money is used to 
perpetuate the fraudulent scheme. See Napoli, 179 F.3d at 8 n. 3 (citing 
cases and reserving question). In this case, however, petitioner did not 
reinvest the laundered funds in that manner. See pp. 30-31, 33, supra. 

42 

ing, and petitioner’s money laundering offense level was not 
adjusted upward because of his labor racketeering. See J.A. 
67-69, 84. 

16 Punishing petitioner independently for his labor 
racketeering and his money laundering thus does not involve 
“double counting” and is not precluded by subsection (c). Cf. 
Lombardi, 5 F.3d at 570-571 (rejecting grouping of wire 
fraud and money laundering under subsection (c) even when 
the defendant’s money laundering offense level was adjusted 
upward for knowledge that laundered funds were the 
proceeds of mail fraud). 

Subsection (d). Finally, subsection (d) also does not 
require grouping of petitioner’s money laundering and labor 
racketeering offenses. As described above, that subsection 
calls for grouping of offenses 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.” Guidelines § 3D1.2(d). At first 
glance, grouping of money laundering and labor racketeering 
might seem appropriate under that language because the 
guidelines for both offenses measure some part of the 
respective harms in monetary terms. Moreover, subsection 
(d) contains a list of offenses “to be grouped” under its pro- 
visions, and both labor racketeering and money laundering 

16 Petitioner’s offense level for labor racketeering was adjusted 
upward for obstruction of justice. J.A. 84. The basis for that adjustment, 
however, was not petitioner’s money laundering but his perjury at his first 
trial. Ibid. Petitioner’s offense level for labor racketeering was also ad- 
justed upward because he was a fiduciary of the Union that he defrauded. 
J.A. 66. And petitioner’s offense level for money laundering was increased 
because he abused a position of trust. J.A. 68. The language of subsection 
(c), however, does not require that two counts be grouped when the 
offense level for each of the two counts is adjusted upward based on 
related conduct. That situation does not result in double counting because, 
even when two counts are not grouped together, only the higher of the 
two adjusted offense levels is used to calculate the combined offense level. 
See Guidelines § 3D1.4. 

43 

are included on that list. Careful analysis, however, 
demonstrates that grouping of money laundering and labor 
racketeering under subsection (d) is not appropriate. 

As an initial matter, the fact that money laundering 
offenses are to be grouped under subsection (d) and labor 
racketeering offenses are also to be grouped under that 
subsection does not mean that the two categories of offenses 
are to be grouped together. See Napoli, 179 F.3d at 9 n.4; cf. 
Harper, 972 F.2d at 322 (drug trafficking offenses cannot 
sensibly be grouped with money laundering offenses even 
though both categories appear on the list of offenses to be 
grouped). As the examples in the Commentary to the 
Guidelines make clear, the primary situation in which 
grouping occurs under subsection (d) is when a defendant is 
charged with multiple counts of the same offense or 
substantially similar offenses. See Guidelines § 3D1.2, 
comment. (n.6); O’Kane, 155 F.3d at 973-974. Another 
common situation that triggers grouping under subsection 
(d) is when a defendant is charged both with an underlying 
offense and with conspiracy, attempt, or solicitation to 
commit that offense. Guidelines § 3D1.2, comment. (n.6). 
Thus, petitioner’s twelve counts of labor racketeering were 
grouped together and with his racketeering conspiracy count 
under subsection (d). See J.A. 85. 

Application Note 6 makes clear that different offenses are 
to be grouped together under subsection (d) only if they are 
“of the same general type.” Guidelines § 3D1.2, comment. 
(n.6). Several factors indicate that money laundering and 
labor racketeering do not meet that description. First, they 
entail different kinds of proscribed conduct that harm 
different victims. See pp. 40-42, supra. Second, although the 
guidelines for money laundering and labor racketeering both 
measure the harm from the relevant offense in monetary 
terms, the guidelines use different values to measure the 
harm from each. See United States v. Taylor, 984 F.2d 298, 
303 (9th Cir. 1993); United States v. Johnson, 971 F.2d 562, 

44 

576 (10th Cir. 1992). The harm caused by a labor racketeer- 
ing offense is measured by the amount of the illicit gain— 
that is, by the value of the prohibited payment or the im- 
proper benefit to the payer, whichever is greater. Guidelines 
§ 2E5.1(b)(2). The harm caused by money laundering, on the 
other hand, is measured by “the magnitude of the criminal 
enterprise, and the extent to which the defendant aided the 
enterprise” (Guidelines § 2S1.1, comment.)—that is, by the 
value of the laundered funds (Guidelines § 2S1.1(b)(2)). 
Third, the money laundering guideline and the labor racket- 
eering guideline each translate the monetary values that 
they consider into specific offense level increases at different 
rates and using different monetary division points. Compare 
Guidelines § 2S1.1(b)(2) with §§ 2E5.1(b)(2) and 2F1.1(b)(1). 
In contrast, the guidelines for the property offenses that are 
listed in Application Note 6 as examples of offenses of “the 
same general type” all translate the amount of “losses” 
involved into offense level increases at exactly the same rate 
and using exactly the same monetary division points. See 
Guidelines §§ 2B1.1(b)(1) (larceny and embezzlement), 
2F1.1(b)(1) (forgery and fraud); Guidelines § 3D1.2, com- 
ment. (n.6) (larceny, embezzlement, forgery and fraud are 
offenses of “the same general type”); Napoli, 179 F.3d at 11- 

12. 
Money laundering and labor racketeering thus “entail 
different kinds of proscribed conduct, punishable on different 
scales, which harm distinct and different victims.” O’Kane, 
155 F.3d at 972. As a result, grouping the two sets of 
offenses is inappropriate not only because the offenses are 
not “of the same general type” but also because it would not 
serve the purpose of the grouping rules, which is “to prevent 
multiple punishment for substantially identical offense con- 
duct.” U.S.S.G. Ch. 3, Pt. D intro. comment (emphasis 
added). 

b. Even if petitioner’s money laundering and labor rack- 
eteering offenses should have been grouped together under 

45 

subsection (d) (as the Seventh Circuit’s decision in Wilson, 
98 F.3d at 284, suggests), petitioner could not show prejudice 
from counsel’s performance at sentencing because grouping 
under that subsection (properly applied) would have in- 
creased rather than decreased petitioner’s sentencing range. 
To understand why that is so, it is necessary to review how 
petitioner’s sentencing range was calculated and how the 
calculation would change if the racketeering and money 
laundering offenses were grouped together under subsection 
(d). 

17 

Petitioner’s racketeering offenses were assigned a base 
level of ten. J.A. 66; Guidelines § 2E5.1(a)(1). That level was 
adjusted upward by two levels because petitioner was a 
fiduciary of the Union that was victimized by his racketeer- 
ing scheme. J.A. 68; Guidelines § 2E5.1(b)(1). The offense 
level was adjusted upward two additional levels based on the 
district court’s determination at sentencing that petitioner 
committed perjury at his first trial. J.A. 67, 84; Guidelines 
§ 3C1.1. Finally, the offense level was increased by 12 levels 
because the total value of the commissions paid as a result 
of petitioner’s racketeering scheme was approximately 
$1,802,000. J.A. 66-67; Guidelines §§ 2E5.1(b)(2), 
2F1.1(b)(1)(M). As a result, the adjusted offense level for the 
racketeering offenses was 26. J.A. 85. 

17 Petitioner’s sentencing range would in fact have been lower if his 
offenses had been grouped under subsections (a), (b) or (c). As we have 
explained, however, grouping is clearly not appropriate under those 
provisions. See pp. 40-42, supra. To our knowledge, no court of appeals 
has approved grouping of money laundering and underlying fraud or rack- 
eteering offenses under subsections (a) or (c), and only one court has done 
so under subsection (b). In that case, moreover, unlike in this one, the 
laundered funds were used to further the underlying fraud. See 
Cusumano, 943 F.2d at 307-308, 312-314 (money laundering and kickbacks 
part of one overall scheme when laundered money was used to bribe Fund 
administrator to direct Fund business to broker who paid kickbacks to 
defendant from his commissions). 

46 

The base offense level for petitioner’s money laundering 
offenses was 20. J.A. 67; Guidelines § 2S1.1(a)(2). That base 
offense level was increased by two levels because petitioner 
abused a position of trust and by an additional two levels 
because petitioner obstructed justice. J.A. 68-69; Guidelines 
§§ 3B1.3, 3C1.1. Finally, the offense level was increased 
by two levels to account for the value of the funds 
that petitioner laundered—$250,000. J.A. 67; Guidelines § 
2S1.1(b)(2)(C). As a result, the adjusted base offense level 
for the money laundering offenses was also 26. J.A. 85. 

Because the racketeering offenses and the money 
laundering offenses were not grouped, the combined offense 
level was determined by taking the offense level applicable 
to the group with the highest offense level (which was 26, 
since the offense levels of both groups were the same) and 
adding two levels because there were two groups of equally 
serious offenses. J.A. 85; Guidelines § 3D1.4. As a result, 
petitioner’s total offense level was 28. J.A. 85. Together 
with his criminal history category of I, that offense level 
yielded an applicable sentencing range of 78 to 97 months. 
J.A. 86. Petitioner was sentenced to 84 months of imprison- 
ment. J.A. 129. 

As we have explained, offenses are grouped together 
under subsection (d) only if the offense level for each of the 
offenses is determined on the basis of aggregate harm. See 
pp. 42-44, supra. Therefore, when offenses are grouped 
under subsection (d), the offense level applicable to the 
group is calculated using the aggregate harm from all the 
offenses. Guidelines § 3D1.3(b). When the grouped offenses 
are governed by different guidelines, as money laundering 
and labor racketeering are, the combined offense level is 
determined by using the guideline that produces the highest 
offense level based on that aggregate harm. Ibid. 

If petitioner’s racketeering and money laundering of- 
fenses had been grouped, the offense level for the money 
laundering offenses would have been higher than it was 

47 

absent the grouping. Rather than using only the $250,000 in 
laundered funds to calculate the appropriate adjustment for 
the harm caused, the court would have been required to use 
the combined total of the laundered funds and the $1,802,000 
in commissions—$2,052,000. Guidelines § 3D1.3(b). See 
Napoli, 179 F.3d at 12; O’Kane, 155 F.3d at 973. Therefore, 
there would have been a six level adjustment to the base 
offense level for money laundering (rather than the two level 
adjustment that applied absent grouping). See Guidelines 
§ 2S1.1(b)(2)(G). As a result, petitioner’s adjusted offense 
level for the money laundering offenses would have been 30 
(rather than 28, the level it was without grouping). Because 
the adjusted offense level of 30 for the money laundering 
offenses would have been higher than the adjusted offense 
level of 26 for the racketeering offenses, 

18 the court would 
have used the level of 30 to calculate the applicable sentenc- 
ing range. Guidelines § 3D1.3(b). The offense level of 30, 
combined with petitioner’s criminal history category of I, 
would have yielded a sentencing range of 97 to 121 months, 
well above the 78 to 97 month range and 84 month sentence 
that petitioner received without grouping. 

19 

18 The offense level for the racketeering offenses would not have 
changed even if the laundered funds were added to the commissions for 
purpose of determining the appropriate adjustment to the offense level for 
the aggregate harm. See Guidelines § 2F1.1(b)(1)(M). 

19 The government has not waived the right to argue for use of the 
combined total of the racketeering commissions and laundered funds if the 
racketeering and money laundering counts were to be grouped. At the 
original sentencing, the government did not urge that the racketeering 
commissions be included as relevant conduct to the money laundering 
offenses, see Guidelines § 1B1.3(a)(2), because of its position that the 
money laundering and racketeering counts should not be grouped. See 
generally United States v. Watts, 519 U.S. 148. 152-153 (1997) (per curiam) 
(discussing relevant conduct provisions). In somewhat comparable cir- 
cumstances, the Seventh Circuit in United States v. Wilson, 131 F.3d at 
1253-1254, concluded that the government’s failure to urge a relevant con- 
duct argument at the original sentencing waived its right to ask that the 

48 

* * * 

As a review of the Guidelines calculations in this case 
illustrates, counsel should rarely be found to have rendered 
deficient performance by failing to anticipate a ruling by a 
court of appeals interpreting the Guidelines, and this is not 
such a rare case. Further, a correct application of the 
Guidelines in this case would not have lowered petitioner’s 
sentence. For both of those reasons, petitioner’s counsel did 
not render ineffective assistance. 

fraud loss be considered in determining the aggregate harm under the 
money laundering guideline, after the court of appeals had remanded for 
grouping of the fraud and money laundering offenses under Guidelines 
§ 3D1.2(d) in United States v. Wilson, 98 F.3d 281 (1996). The Seventh 
Circuit’s waiver holding, however, presupposes that the government could 
have urged a relevant conduct adjustment to the money laundering counts 
without also urging grouping. 131 F.3d at 1253. That is clearly incorrect. 
If two offenses are “of a character for which § 3D1.2(d) would require 
grouping of multiple counts,” Guidelines § 1B1.3(a)(2), the government 
could not have urged that the offenses be treated as relevant conduct 
without also arguing that the Guidelines required grouping. The court of 
appeals held to the contrary because it misread Guidelines § 1B1.3(a)(2) as 
permitting a relevant conduct adjustment without grouping of multiple 
counts. 131 F.3d at 1253. But a relevant conduct adjustment under sub- 
section 1B1.3(a)(2) is permissible absent grouping only when a defendant 
is convicted of a single count. When there are multiple counts, as here, 
groupable counts must be grouped. Guidelines § 3D1.2 (“All counts 
involving substantially the same harm shall be grouped together into a 
single group.”) (emphasis added). Accordingly, after the government’s 
position on grouping was rejected in the first Wilson opinion, the govern- 
ment should have been permitted to urge a correct application of the 
grouping rules, i.e., one that took into account “the combined offense 
behavior taken as a whole.” Guidelines § 3D1.3, comment. (n.3). 

49 

CONCLUSION 

The decision of the court of appeals should be affirmed. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 
JAMES K. ROBINSON 

Assistant Attorney General 
MICHAEL R. DREEBEN 

Deputy Solicitor General 
MATTHEW D. ROBERTS 

Assistant to the Solicitor 

General 
JOEL M. GERSHOWITZ 

Attorney 

SEPTEMBER 2000 

APPENDIX 

RELEVANT STATUTES AND GUIDELINES 
PROVISIONS 

1. Section 3553 of Title 18, United States Code, provides: 

(a) FACTORS TO BE CONSIDERED IN IMPOSING A SEN- 
TENCE.—The court shall impose a sentence sufficient, but 
not greater than necessary, to comply with the purposes set 
forth in paragraph (2) of this subsection. The court, in deter- 
mining the particular sentence to be imposed, shall con- 
sider— 

(1) the nature and circumstances of the offense and 
the history and characteristics of the defendant; 

(2) the need for the sentence imposed— 

(A) to reflect the seriousness of the offense, to 
promote respect for the law, and to provide just 
punishment for the offense; 

(B) to afford adequate deterrence to criminal 
conduct; 

(C) to protect the public from further crimes of 
the defendant; and 

(D) to provide the defendant with needed educa- 
tional or vocational training, medical care, or other 
correctional treatment in the most effective manner; 

(3) the kinds of sentences available; 

(4) the kinds of sentence and the sentencing range 
established for— 

(1a) 

2a 

(A) the applicable category of offense committed 
by the applicable category of defendant as set forth in 
the guidelines issued by the Sentencing Commission 
pursuant to section 994(a)(1) of title 28, United States 
Code, and that are in effect on the date the defendant 
is sentenced; or 

(B) in the case of a violation of probation or 
supervised release, the applicable guidelines or policy 
statements issued by the Sentencing Commission 
pursuant to section 994(a)(3) of title 28, United States 
Code; 

(5) any pertinent policy statement issued by the Sen- 
tencing Commission pursuant to 28 U.S.C. 994(a)(2) that 
is in effect on the date the defendant is sentenced; 

(6) the need to avoid unwarranted sentence dis- 
parities among defendants with similar records who 
have been found guilty of similar conduct; and 

(7) the need to provide restitution to any victims of 
the offense. 

(b) APPLICATION OF GUIDELINES IN IMPOSING A 

SENTENCE.—The court shall impose a sentence of the kind, 
and within the range, referred to in subsection (a)(4) unless 
the court finds that there exists an aggravating or mitigating 
circumstance of a kind, or to a degree, not adequately taken 
into consideration by the Sentencing Commission in 
formulating the guidelines that should result in a sentence 
different from that described. In determining whether a 
circumstance was adequately taken into consideration, the 
court shall consider only the sentencing guidelines, policy 
statements, and official commentary of the Sentencing Com- 
mission. In the absence of an applicable sentencing guide- 
line, the court shall impose an appropriate sentence, having 
due regard for the purposes set forth in subsection (a)(2). In 

3a 

the absence of an applicable sentencing guideline in the case 
of an offense other than a petty offense, the court shall also 
have due regard for the relationship of the sentence imposed 
to sentences prescribed by guidelines applicable to similar 
offenses and offenders, and to the applicable policy state- 
ments of the Sentencing Commission. 

(c) STATEMENT OF REASONS FOR IMPOSING A 

SENTENCE.—The court, at the time of sentencing, shall 
state in open court the reasons for its imposition of the 
particular sentence, and, if the sentence— 

(1) is of the kind, and within the range, described in 
subsection (a)(4), and that range exceeds 24 months, the 
reason for imposing a sentence at a particular point 
within the range; or 

(2) is not of the kind, or is outside the range, des- 
cribed in subsection (a)(4), the specific reason for the 
imposition of a sentence different from that described. 

If the court does not order restitution, or orders only 
partial restitution, the court shall include in the statement 
the reason therefor. The court shall provide a transcription 
or other appropriate public record of the court’s statement of 
reasons to the Probation System, and, if the sentence in- 
cludes a term of imprisonment, to the Bureau of Prisons. 

(d) PRESENTENCE PROCEDURE FOR AN ORDER OF 

NOTICE.—Prior to imposing an order of notice pursuant to 
section 3555, the court shall give notice to the defendant and 
the Government that it is considering imposing such an 
order. Upon motion of the defendant or the Government, or 
on its own motion, the court shall— 

(1) permit the defendant and the Government to 
submit affidavits and written memoranda addressing 
matters relevant to the imposition of such an order; 

4a 

(2) afford counsel an opportunity in open court to ad- 
dress orally the appropriateness of the imposition of 
such an order; and 

(3) include in its statement of reasons pursuant to 
subsection (c) specific reasons underlying its determina- 
tions regarding the nature of such an order. 

Upon motion of the defendant or the Government, or on its 
own motion, the court may in its discretion employ any 
additional procedures that it concludes will not unduly com- 
plicate or prolong the sentencing process. 

(e) LIMITED AUTHORITY TO IMPOSE A SENTENCE BE- 
LOW A STATUTORY MINIMUM.—Upon motion of the Govern- 
ment, the court shall have the authority to impose a sentence 
below a level established by statute as minimum sentence so 
as to reflect a defendant’s substantial assistance in the 
investigation or prosecution of another person who has 
committed an offense. Such sentence shall be imposed in 
accordance with the guidelines and policy statements issued 
by the Sentencing Commission pursuant to section 994 of 
title 28, United States Code. 

(f) LIMITATION ON APPLICABILITY OF STATUTORY 
MINIMUMS IN CERTAIN CASES.—Notwithstanding any 
other provision of law, in the case of an offense under section 
401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 
841, 844, 846) or section 1010 or 1013 of the Controlled Sub- 
stances Import and Export Act (21 U.S.C. 960, 963), the 
court shall impose a sentence pursuant to guidelines pro- 
mulgated by the United States Sentencing Commission 
under section 994 of title 28 without regard to any statutory 
minimum sentence, if the court finds at sentencing, after the 
Government has been afforded the opportunity to make a 
recommendation, that— 

5a 

(1) the defendant does not have more than 1 criminal 
history point, as determined under the sentencing 
guidelines; 

(2) the defendant did not use violence or credible 
threats of violence or possess a firearm or other dan- 
gerous weapon (or induce another participant to do so) in 
connection with the offense; 

(3) the offense did not result in death or serious 
bodily injury to any person; 

(4) the defendant was not an organizer, leader, man- 
ager, or supervisor of others in the offense, as deter- 
mined under the sentencing guidelines and was not 
engaged in a continuing criminal enterprise, as defined in 
section 408 of the Controlled Substances Act; and 

(5) not later than the time of the sentencing hearing, 
the defendant has truthfully provided to the Government 
all information and evidence the defendant has 
concerning the offense or offenses that were part of the 
same course of conduct or of a common scheme or plan, 
but the fact that the defendant has no relevant or useful 
other information to provide or that the Government is 
already aware of the information shall not preclude a 
determination by the court that the defendant has com- 
plied with this requirement. 

6a 

2. Section 3742 of Title 18, United States Code, provides: 

(a) APPEAL BY A DEFENDANT.—A defendant may file 
a notice of appeal in the district court for review of an 
otherwise final sentence if the sentence— 

(1) was imposed in violation of law; 

(2) was imposed as a result of an incorrect appli- 
cation of the sentencing guidelines; or 

(3) is greater than the sentence specified in the appli- 
cable guideline range to the extent that the sentence in- 
cludes a greater fine or term of imprisonment, probation, 
or supervised release than the maximum established in 
the guideline range, or includes a more limiting condition 
of probation or supervised release under section 
3563(b)(6) or (b)(11) than the maximum established in 
the guideline range; or 

(4) was imposed for an offense for which there is no 
sentencing guideline and is plainly unreasonable. 

(b) APPEAL BY THE GOVERNMENT.—The Government 
may file a notice of appeal in the district court for review of 
an otherwise final sentence if the sentence— 

(1) was imposed in violation of law; 

(2) was imposed as a result of an incorrect 
application of the sentencing guidelines; 

(3) is less than the sentence specified in the 
applicable guideline range to the extent that the 
sentence includes a lesser fine or term of imprisonment, 
probation, or supervised release than the minimum 
established in the guideline range, or includes a less 
limiting condition of probation or supervised release 

7a 

under section 3563(b)(6) or (b)(11) than the minimum 
established in the guideline range; or 

(4) was imposed for an offense for which there is no 
sentencing guideline and is plainly unreasonable. 

The Government may not further prosecute such appeal 
without the personal approval of the Attorney General, the 
Solicitor General, or a deputy solicitor general designated by 
the Solicitor General. 

(c) PLEA AGREEMENTS.—In the case of a plea agree- 
ment that includes a specific sentence under rule 11(e)(1)(C) 
of the Federal Rules of Criminal Procedure— 

(1) a defendant may not file a notice of appeal under 
paragraph (3) or (4) of subsection (a) unless the sentence 
imposed is greater than the sentence set forth in such 
agreement; and 

(2) the Government may not file a notice of appeal 
under paragraph (3) or (4) of subsection (b) unless the 
sentence imposed is less than the sentence set forth in 
such agreement. 

(d) RECORD ON REVIEW.—If a notice of appeal is filed 
in the district court pursuant to subsection (a) or (b), the 
clerk shall certify to the court of appeals— 

(1) that portion of the record in the case that is 
designated as pertinent by either of the parties; 

(2) the presentence report; and 

(3) the information submitted during the sentencing 
proceeding. 

(e) CONSIDERATION.—Upon review of the record, the 
court of appeals shall determine whether the sentence— 

8a 

(1) was imposed in violation of law; 

(2) was imposed as a result of an incorrect appli- 
cation of the sentencing guidelines; 

(3) is outside the applicable guideline range, and is 
unreasonable, having regard for— 

(A) the factors to be considered in imposing a 
sentence, as set forth in chapter 227 of this title; 
and 

(B) the reasons for the imposition of the 
particular sentence, as stated by the district court 
pursuant to the provisions of section 3553(c); or 

(4) was imposed for an offense for which there is no 
applicable sentencing guideline and is plainly unrea- 
sonable. 

The court of appeals shall give due regard to the opportunity 
of the district court to judge the credibility of the witnesses, 
and shall accept the findings of fact of the district court 
unless they are clearly erroneous and shall give due de- 
ference to the district court's application of the guidelines to 
the facts. 

(f) DECISION AND DISPOSITION.—If the court of 
appeals determines that the sentence— 

(1) was imposed in violation of law or imposed as a 
result of an incorrect application of the sentencing 
guidelines, the court shall remand the case for further 
sentencing proceedings with such instructions as the 
court considers appropriate; 

(2) is outside the applicable guideline range and is 
unreasonable or was imposed for an offense for which 
there is no applicable sentencing guideline and is plainly 

9a 

unreasonable, it shall state specific reasons for its con- 
clusions and— 

(A) if it determines that the sentence is too 
high and the appeal has been filed under subsection 
(a), it shall set aside the sentence and remand the 
case for further sentencing proceedings with such 
instructions as the court considers appropriate; 

(B) if it determines that the sentence is too 
low and the appeal has been filed under subsection 
(b), it shall set aside the sentence and remand the 
case for further sentencing proceedings with such 
instructions as the court considers appropriate; 

(3) is not described in paragraph (1) or (2), it shall 
affirm the sentence. 

(g) APPLICATION TO A SENTENCE BY A 

MAGISTRATE.—An appeal of an otherwise final sentence 
imposed by a United States magistrate may be taken to a 
judge of the district court, and this section shall apply 
(except for the requirement of approval by the Attorney 
General or the Solicitor General in the case of a Government 
appeal) as though the appeal were to a court of appeals from 
a sentence imposed by a district court. 

(h) GUIDELINE NOT EXPRESSED AS A RANGE.—For 
the purpose of this section, the term "guideline range" 
includes a guideline range having the same upper and lower 
limits. 

10a 

3. Section 1B1.3 of the United States Sentencing Guidelines 
provides in relevant part: 

(a) Chapters Two (Offense Conduct) and Three 
(Adjustments). Unless otherwise specified, (i) the 
base offense level where the guideline specifies 
more than one base offense level, (ii) specific 
offense characteristics and (iii) cross references in 
Chapter Two, and (iv) adjustments in Chapter 
Three, shall be determined on the basis of the 
following: 

(1) (A) 
all acts and omissions committed, aided, 

abetted, counseled, commanded, 
induced, procured, or willfully caused by 
the defendant; and 

(B) in the case of a jointly undertaken 
criminal activity (a criminal plan, 
scheme, endeavor, or enterprise under- 
taken by the defendant in concert with 
others, whether or not charged as a 
conspiracy), all reasonably foreseeable 
acts and omissions of others in 
furtherance of the jointly undertaken 
criminal activity, 

that occurred during the commission of the 
offense of conviction, in preparation for that 
offense, or in the course of attempting to avoid 
detection or responsibility for that offense; 

(2) solely with respect to offenses of a character 
for which §3D1.2(d) would require grouping of 
multiple counts, all acts and omissions 

11a 

described in subdivisions (1)(A) and (1)(B) 
above that were part of the same course of 
conduct or common scheme or plan as the 
offense of conviction; 

(3) all harm that resulted from the acts and 
omissions specified in subsections (a)(1) and 
(a)(2) above, and all harm that was the object 
of such acts and omissions; and 

(4) any other information specified in the appli- 
cable guideline. 

4. Section 3D1 of the United States Sentencing Guidelines 
provides : 

§ 3D1.1 

Procedure for Determining Offense Level on 

Multiple Counts 

(a) When a defendant has been convicted of 
more than one count, the court shall: 

(1) Group the counts resulting in con- 
viction into distinct Groups of Closely 
Related Counts (“Groups”) by apply- 
ing the rules specified in §3D1.2. 

(2) Determine the offense level applicable 
to each Group by applying the rules 
specified in §3D1.3. 

(3) Determine the combined offense level 
applicable to all Groups taken together 
by applying the rules specified in § 
3D1.4. 

(b) Exclude from the application of §§3D1.2- 
3D1.5 any count for which the statute (1) 

12a 

specifies a term of imprisonment to be 
imposed; and (2) requires that such term of 
imprisonment be imposed to run consecu- 
tively to any other term of imprisonment. 
Sentences for such counts are governed by 
the provisions of §5G1.2(a). 

§ 3D1.2. 

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: 

(a) When counts involve the same victim and 
the same act or transaction. 

(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. 

13a 

Offenses covered by the following guide- 
lines are to be grouped under this sub- 
section: 

§§ 2B1.1, 2B1.3, 2B4.1, 2B5.1, 2B5.3, 
2B6.1; 
§§ 2C1.1, 2C1.2, 2C1.7; 
§§ 2D1.1, 2D1.2, 2D1.5, 2D1.11, 2D1.13; 
§§ 2E4.1, 2E5.1; 
§§ 2F1.1, 2F1.2; 
§ 2K2.1; 
§§ 2L1.1, 2L2.1; 
§ 2N3.1; 
§ 2Q2.1; 
§ 2R1.1; 
§§ 2S1.1, 2S1.2, 2S1.3; 
§§ 2T1.1, 2T1.4, 2T1.6, 2T1.7, 2T1.9, 
2T2.1, 2T3.1. 

Specifically excluded from the operation of 
this subsection are: 

all offenses in Chapter Two, Part A; 
§§ 2B2.1, 2B2.3, 2B3.1, 2B3.2, 2B3.3; 
§ 2C1.5; 
§§ 2D2.1, 2D2.2, 2D2.3; 
§§ 2E1.3, 2E1.4, 2E2.1; 
§§ 2G1.1, 2G2.1; 
§§ 2H1.1, 2H2.1, 2H4.1; 
§§ 2L2.2, 2L2.5; 
§§ 2M2.1, 2M2.3, 2M3.1, 2M3.2, 2M3.3, 
2M3.4, 2M3.5, 2M3.9; 
§§ 2P1.1, 2P1.2, 2P1.3. 

For multiple counts of offenses that are not 
listed, grouping under this subsection may 
or may not be appropriate; a case-by-case 

14a 

determination must be made based upon the 
facts of the case and the applicable 
guidelines (including specific offense 
characteristics and other adjustments) used 
to determine the offense level. 

Exclusion of an offense from grouping under 
this subsection does not necessarily pre- 
clude grouping under another subsection. 

§ 3D1.3 

Offense Level Applicable to Each Group of 

Closely Related Counts 

Determine the offense level applicable to each of 
the Groups as follows: 

(a) In the case of counts grouped together 
pursuant to § 3D1.2(a)-(c), the offense level 
applicable to a Group is the offense level, 
determined in accordance with Chapter 
Two and Parts A, B, and C of Chapter 
Three, for the most serious of the counts 
comprising the Group, i. e., the highest 
offense level of the counts in the Group. 

(b) In the case of counts grouped together 
pursuant to § 3D1.2(d), the offense level 
applicable to a Group is the offense level 
corresponding to the aggregated quantity, 
determined in accordance with Chapter 
Two and Parts A, B and C of Chapter 
Three. When the counts involve offenses of 
the same general type to which different 
guidelines apply (e.g., theft and fraud), 
apply the offense guideline that produces 
the highest offense level. 

15a 

§ 3D1.4. 

Determining the Combined Offense Level 

The combined offense level is determined by 
taking the offense level applicable to the Group 
with the highest offense level and increasing that 
offense level by the amount indicated in the 
following table: 

Number of Units 
Increase in Offense Level 

1 none 
1 1/2 
add 1 level 

2 add 2 levels 
2 1/2 – 3 
add 3 levels 

3 1/2 – 5 

add 4 levels 

More than 5 

add 5 levels. 

In determining the number of Units for purposes 
of this section: 

(a) Count as one Unit the Group with the 
highest offense level. Count one additional 
Unit for each Group that is equally serious 
or from 1 to 4 levels less serious. 

(b) Count as one-half Unit any Group that is 5 
to 8 levels less serious than the Group with 
the highest offense level. 

(c) Disregard any Group that is 9 or more 
levels less serious than the Group with the 
highest offense level. Such Groups will not 
increase the applicable offense level but 
may provide a reason for sentencing at the 
higher end of the sentencing range for the 
applicable offense level. 

16a 

§ 3D1.5. 

Determining the Total Punishment 

Use the combined offense level to determine the 
appropriate sentence in accordance with the 
provisions of Chapter Five. 

5. Chapter Five, Part A, of the United States Sentencing 
Guidelines provides: 

The Sentencing Table used to determine the guideline 
range follows: 

17a 

18a 

6. The Introductory Commentary to Chapter Three, Part 
D, of the United States Sentencing Guidelines provides: 

This Part provides rules for determining a single offense 
level that encompasses all the counts of which the defendant 
is convicted. The single, “combined” offense level that re- 
sults from applying these rules is used, after adjustment 
pursuant to the guidelines in subsequent parts, to determine 
the sentence. These rules have been designed primarily 
with the more commonly prosecuted federal offenses in 
mind. 

The rules in this Part seek to provide incremental punish- 
ment for significant additional criminal conduct. The most 
serious offense is used as a starting point. The other counts 
determine how much to increase the offense level. The 
amount of the additional punishment declines as the number 
of additional offenses increases. 

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 in- 
creasing the guideline range. For example, embezzling 
money from a bank and falsifying the related records, 
although legally distinct offenses, represent essentially the 
same type of wrongful conduct with the same ultimate harm, 
so that it would be more appropriate to treat them as a 
single offense for purposes of sentencing. Other offenses, 
such as an assault causing bodily injury to a teller during a 
bank robbery, are so closely related to the more serious 
offense that it would be appropriate to treat them as part of 
the more serious offense, leaving the sentence enhancement 
to result from application of a specific offense characteristic. 

19a 

In order to limit the significance of the formal charging 
decision and to prevent multiple punishment for sub- 
stantially identical offense conduct, this Part provides rules 
for grouping offenses together. Convictions on multiple 
counts do not result in a sentence enhancement unless they 
represent additional conduct that is not otherwise accounted 
for by the guidelines. In essence, counts that are grouped 
together are treated as constituting a single offense for pur- 
poses of the guidelines. 

Some offense guidelines, such as those for theft, fraud and 
drug offenses, contain provisions that deal with repetitive or 
ongoing behavior. Other guidelines, such as those for assault 
and robbery, are oriented more toward single episodes of 
criminal behavior. Accordingly, different rules are required 
for dealing with multiple-count convictions involving these 
two different general classes of offenses. More complex 
cases involving different types of offenses may require 
application of one rule to some of the counts and another rule 
to other counts. 

Some offenses, e.g., racketeering and conspiracy, may be 
“composite” in that they involve a pattern of conduct or 
scheme involving multiple underlying offenses. The rules in 
this Part are to be used to determine the offense level for 
such composite offenses from the offense level for the under- 
lying offenses. 

Essentially, the rules in this Part can be summarized as 
follows: (1) If the offense guidelines in Chapter Two base the 
offense level primarily on the amount of money or quantity 
of substance involved (e.g., theft, fraud, drug trafficking, 
firearms dealing), or otherwise contain provisions dealing 
with repetitive or ongoing misconduct (e.g., many environ- 
mental offenses), add the numerical quantities and apply the 

20a 

pertinent offense guideline, including any specific offense 
characteristics for the conduct taken as a whole. (2) When 
offenses are closely interrelated, group them together for 
purposes of the multiple-count rules, and use only the 
offense level for the most serious offense in that group. (3) 
As to other offenses (e.g., independent instances of assault or 
robbery), start with the offense level for the most serious 
count and use the number and severity of additional counts 
to determine the amount by which to increase that offense 
level.