01-2302, 01-3414 U.S. v. Chavin

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“Chavin first contends that since he was convicted of offenses listed in the ‘to be grouped’ category the district court had no choice but to group the offenses because listed offenses must be grouped automatically. Because such a conclusion flies in the face of the overriding purpose of º 3D1.2, we disagree, and as we note below, we are not alone in this determination. See, e.g., United States v. Williams, 154 F.3d 655, 657 (6th Cir. 1998) (‘The bulk of the courts to have considered the proper construction of subsection (d) have concluded that there is no automatic grouping of counts simply because those counts are on the ‘are to be grouped’ list.’).”

“In United States v. Wilson, we noted that the primary goal of º 3D1.2 ‘is to combine offenses involving closely related counts.’ 98 F.3d 281, 282 (7th Cir. 1996) (quotations omitted). In cases, like this one, where two different offense guidelines are at issue, automatic grouping would often lead to the grouping of entirely unrelated counts. See United States v. Harper, 972 F.2d 321, 322 (11th Cir. 1992) (‘In some circumstances, automatic grouping detracts from the main purpose of section 3D1.2: to combine offenses involving closely related counts.’). In light of the purpose of º 3D1.2, we seriously doubt that its drafters would have desired such an outcome. In fact, the commentary to º 3D1.2 makes it clear that they did not: ‘[c]ounts involving offenses to which different offense guidelines apply are grouped together under subsection (d) if the offenses are of the same general type and otherwise meet the criteria for grouping under this subsection.’ U.S.S.G. º 3D1.2 cmt. n.6 (emphasis added). Consequently, at least in cases where different offense guidelines apply-as is the case here, where the offenses are under º 2F1.1 and º 2T1.1- grouping is not automatic; rather the sentencing court is required to make an additional inquiry into whether the offenses are ‘of the same general type.'”

“Defendants argue at some length that the district court erred because it based its finding that the offenses were not of the same type partially on the fact that the victim of the bankruptcy fraud was different from the victim of the tax evasion. … Even aside from there being different victims involved, there are other considerations that lead us to the conclusion that Chavin’s crimes are not of the same general type. The tax and bankruptcy frauds were not ‘part of a single continuous course of criminal activity.’ United States v. Petrillo, 237 F.3d 119, 125 (2d Cir. 2000). Indeed, the two offenses are quite separate.”

Affirmed.

Appeals from the United States District Court for the Northern District of Illinois, Pallmeyer, J., Kanne, J.