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![handle is hein.congcourts/gsenupa0007 and id is 1 raw text is: Guideline Se* encng update
a publication of the FederalJudicial Center
Adjustments
Role in Offense
Fourth Circuit holds that abuse of 4*
hancement cannot be based on a coconsp 0
actions. Two defendants pled guilty to conspiracy
and mail fraud and were given § 3B1.3 enhance-
ments for abuse of trust. The appellate court held
that the enhancements could not be given for abus-
ing positions of trust in their own company because
that company was not a victim of the fraud. It is
well-established that 'the question of whether an
individual occupies a position of trust should be
addressed from the perspective of the victim.'
The government argued that the enhancements
were warranted as relevant conduct under § 1B1.3-
a third conspirator occupied a position of trust in
the victimized company and the abuse of his posi-
tion was both reasonably foreseeable to defendants
and in furtherance of the conspiracy. The appellate
court disagreed. By its own terms, § 1B1.3 holds a
defendant responsible only for reasonably foresee-
able 'acts and omissions' of his co-conspirators ....
[T]he abuse of trust enhancement is premised on
the defendant's status of having a relationship of
trust with the victim.... A co-conspirator's status
cannot be attributed to other members of the con-
spiracy under § 1B1.3.
The court also concluded that the abuse of trust
provision falls under an exception to § 1B1.3,
which states that § 1B1.3 does not apply if
[o]therwise specified. It is clear that § 3B1.3
'specifie[s]' that abuse of trust enhancements be in-
dividualized, not based on the acts of co-conspira-
tors.... [Section] 3B1.3 specifically states that the
two-level enhancement will apply if 'the defendant
abused a position of public or private trust.'
U.S.S.G. § 3B1.3 (emphasis added).
U.S. v. Moore, 29 E3d 175, 178-80 (4th Cir. 1994)
(remanded).
See Outline at III.B.8.a.
Multiple Counts-Grouping
Ninth Circuit holds that rape and murder counts
involving same victim and transaction should have
been grouped. Defendant was convicted of aggra-
vated sexual abuse and felony murder. Defendant
struck the victim with his truck and raped her, and
she died from her injuries soon after. He was sen-
volume 7, number 1, October 5, 1994
tecd to concurrent life sentences, but argued on
appeal that the two offenses should have been
grouped because the counts involve the same vic-
tim and the same act or transaction, § 3D1.2(a).
The government argued that rape is not the same
act or transaction as being murdered.
The appellate court 1, :id that the language of
§ 3D1.2(a) and the com.f.ientary require grouping.
Application Note 3 states that 'double counting'
should be avoided where two counts 'represent es-
sentially i single injury or are part of a single crimi-
nal episode or transaction involving the same vic-
tim,' provided the counts arise from conduct occur-
ring on the same day.... Example (2) to Note 3...
provides that where '[t]he defendant is convicted of
kidnapping and assaulting the victim during the
course of the kidnapping... [tihe counts are to be
grouped together.'... [T]his illustration indicates
that grouping is also appropriate for murder and
aggravated sexual abuse, at least where they are in-
flicted contemporaneously on a single victim or re-
sult in an essentially single composite harm.
U.S. v. Chischilly, 30 E3d 1144, 1160-61 (9th Cir.
1994).
See Outline at III.D.1.
Offense Conduct
Calculating Weight of Drugs
Tenth Circuit holds that government must prove
that D- rather than L-methamphetamine was in-
volved before sentence can be based on stricter
calculation for D-methamphetamine. Defendant
was convicted of methamphetamine offenses. Al-
though the government presented no evidence as
to what kind of methamphetamine was involved,
defendant's offense level was based on the calcula-
tion for methamphetamine-which in the Guide-
lines means D-methamphetamine-rather than for
L-methamphetamine, which is treated less severely.
See § 2D1.1(c) at n.* and comment. (n.10.d).
The appellate court held that [t] he government
has the burden of proof and production during the
sentencing hearing to establish the amounts and
types of controlled substances related to the of-
fense.... Since the criminal offense makes no dis-
tinction between the types of methamphetamine, it
cannot be assumed that Deninno was convicted of
possession of D-methamphetamine. Accord U.S. v.
Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court
decisions on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guide-
lines and policy statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update
should not be considered a recommendation or official policy of the Center; any views expressed are those of the author.
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