U.S.S.G. § 1B1.2

Applicable Guidelines

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(a) Determine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i.e., the offense conduct charged in the count of the indictment or information of which the defendant was convicted). However, in the case of a plea agreement (written or made orally on the record) containing a stipulation that specifically establishes a more serious offense than the offense of conviction, determine the offense guideline section in Chapter Two applicable to the stipulated offense.

Refer to the Statutory Index (Appendix A) to determine the Chapter Two offense guideline, referenced in the Statutory Index for the offense of conviction. If the offense involved a conspiracy, attempt, or solicitation, refer to §2X1.1 (Attempt, Solicitation, or Conspiracy) as well as the guideline referenced in the Statutory Index for the substantive offense. For statutory provisions not listed in the Statutory Index, use the most analogous guideline. See §2X5.1 (Other Offenses). The guidelines do not apply to any count of conviction that is a Class B or C misdemeanor or an infraction. See §1B1.9 (Class B or C Misdemeanors and Infractions).

(b) After determining the appropriate offense guideline section pursuant to subsection (a) of this section, determine the applicable guideline range in accordance with §1B1.3 (Relevant Conduct).

(c) A plea agreement (written or made orally on the record) containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offense(s).

(d) A conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit.

Commentary

Application Notes:

1. This section provides the basic rules for determining the guidelines applicable to the offense conduct under Chapter Two (Offense Conduct). The court is to use the Chapter Two guideline section referenced in the Statutory Index (Appendix A) for the offense of conviction. However, (A) in the case of a plea agreement (written or made orally on the record) containing a stipulation that specifically establishes a more serious offense than the offense of conviction, the Chapter Two offense guideline section applicable to the stipulated offense is to be used; and (B) for statutory provisions not listed in the Statutory Index, the most analogous guideline, determined pursuant to §2X5.1 (Other Offenses), is to be used.

In the case of a particular statute that proscribes only a single type of criminal conduct, the offense of conviction and the conduct proscribed by the statute will coincide, and the Statutory Index will specify only one offense guideline for that offense of conviction. In the case of a particular statute that proscribes a variety of conduct that might constitute the subject of different offense guidelines, the Statutory Index may specify more than one offense guideline for that particular statute, and the court will determine which of the referenced guideline sections is most appropriate for the offense conduct charged in the count of which the defendant was convicted. If the offense involved a conspiracy, attempt, or solicitation, refer to §2X1.1 (Attempt, Solicitation, or Conspiracy) as well as the guideline referenced in the Statutory Index for the substantive offense. For statutory provisions not listed in the Statutory Index, the most analogous guideline is to be used. See §2X5.1 (Other Offenses).

As set forth in the first paragraph of this note, an exception to this general rule is that if a plea agreement (written or made orally on the record) contains a stipulation that establishes a more serious offense than the offense of conviction, the guideline section applicable to the stipulated offense is to be used. A factual statement or a stipulation contained in a plea agreement (written or made orally on the record) is a stipulation for purposes of subsection (a) only if both the defendant and the government explicitly agree that the factual statement or stipulation is a stipulation for such purposes. However, a factual statement or stipulation made after the plea agreement has been entered, or after any modification to the plea agreement has been made, is not a stipulation for purposes of subsection (a). The sentence that shall be imposed is limited, however, to the maximum authorized by the statute under which the defendant is convicted. See Chapter Five, Part G (Implementing the Total Sentence of Imprisonment). For example, if the defendant pleads guilty to theft, but admits the elements of robbery as part of the plea agreement, the robbery guideline is to be applied. The sentence, however, may not exceed the maximum sentence for theft. See H. Rep. 98-1017, 98th Cong., 2d Sess. 99 (1984).

The exception to the general rule has a practical basis. In a case in which the elements of an offense more serious than the offense of conviction are established by a plea agreement, it may unduly complicate the sentencing process if the applicable guideline does not reflect the seriousness of the defendant's actual conduct. Without this exception, the court would be forced to use an artificial guideline and then impose a sentence that is greater than the otherwise applicable guideline range to the degree the court found necessary based upon the more serious conduct established by the plea agreement. The probation officer would first be required to calculate the guideline for the offense of conviction. However, this guideline might even contain characteristics that are difficult to establish or not very important in the context of the actual offense conduct. As a simple example, §2B1.1 (Theft, Property Destruction, and Fraud) contains monetary distinctions which are more significant and more detailed than the monetary distinctions in §2B3.1 (Robbery). Then, the probation officer might need to calculate the robbery guideline to assist the court in determining an appropriate sentence in a case in which the defendant pled guilty to theft but admitted committing robbery. This cumbersome, artificial procedure is avoided by using the exception rule in guilty or nolo contendere plea cases where it is applicable.

As with any plea agreement, the court must first determine that the agreement is acceptable, in accordance with the policies stated in Chapter Six, Part B (Plea Agreements). The limited exception provided here applies only after the court has determined that a plea, otherwise fitting the exception, is acceptable.

2. Section 1B1.2(b) directs the court, once it has determined the applicable guideline (i.e., the applicable guideline section from Chapter Two) under §1B1.2(a) to determine any applicable specific offense characteristics (under that guideline), and any other applicable sentencing factors pursuant to the relevant conduct definition in §1B1.3. Where there is more than one base offense level within a particular guideline, the determination of the applicable base offense level is treated in the same manner as a determination of a specific offense characteristic. Accordingly, the "relevant conduct" criteria of §1B1.3 are to be used, unless conviction under a specific statute is expressly required.

3. Subsections (c) and (d) address circumstances in which the provisions of Chapter Three, Part D (Multiple Counts) are to be applied although there may be only one count of conviction. Subsection (c) provides that in the case of a stipulation to the commission of additional offense(s), the guidelines are to be applied as if the defendant had been convicted of an additional count for each of the offenses stipulated. For example, if the defendant is convicted of one count of robbery but, as part of a plea agreement, admits to having committed two additional robberies, the guidelines are to be applied as if the defendant had been convicted of three counts of robbery. Subsection (d) provides that a conviction on a conspiracy count charging conspiracy to commit more than one offense is treated as if the defendant had been convicted of a separate conspiracy count for each offense that he conspired to commit. For example, where a conviction on a single count of conspiracy establishes that the defendant conspired to commit three robberies, the guidelines are to be applied as if the defendant had been convicted on one count of conspiracy to commit the first robbery, one count of conspiracy to commit the second robbery, and one count of conspiracy to commit the third robbery.

4. Particular care must be taken in applying subsection (d) because there are cases in which the verdict or plea does not establish which offense(s) was the object of the conspiracy. In such cases, subsection (d) should only be applied with respect to an object offense alleged in the conspiracy count if the court, were it sitting as a trier of fact, would convict the defendant of conspiring to commit that object offense. Note, however, if the object offenses specified in the conspiracy count would be grouped together under §3D1.2(d) (e.g., a conspiracy to steal three government checks) it is not necessary to engage in the foregoing analysis, because §1B1.3(a)(2) governs consideration of the defendant's conduct.

Historical Note: Effective November 1, 1987. Amended effective January 15, 1988 (amendment 2); November 1, 1989 (amendments 73–75 and 303); November 1, 1991 (amendment 434); November 1, 1992 (amendment 438); November 1, 2000 (amendment 591); November 1, 2001 (amendments 613 and 617); November 1, 2025 (amendment 836).

Notes of Decisions

Cited in 357 cases (43 in the last 5 years), 1989–2026 · leading case: United States v. Carolyn Jackson, 862 F.3d 365 (3rd Cir. 2017).

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United States v. Carolyn Jackson, 862 F.3d 365 (3rd Cir. 2017). · cites it 10× “1(a)(1) (citing U.S.S.G. § 1B1.2). U.S.S.G. § 1B1.2(a) (“Applicable Guidelines”) states, inter alia, that the sentencing court should “[d]etermine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i.”

United States v. Thomas Bryant, Jr., 996 F.3d 1243 (11th Cir. 2021). · cites it 2× “13 is “applicable” in the same way anything else in the sentencing guidelines is “applicable”—it implements the relevant statute.”

United States v. Vigil, 476 F. Supp. 2d 1231 (D.N.M. 2007). · cites it 10× “See U.S.S.G. § 1B1.2. To determine the guideline section, U.”

United States v. Deion Lockhart, 844 F.3d 501 (5th Cir. 2016). · cites it 4× “Lockhart filed a motion seeking an evidentiary hearing, as the jury found him guilty of only Count Nine, the conspiracy count, but had not specified on which object offense(s) it had based his guilt, as U.S.S.G. § 1B1.2 requires. The district court denied that motion.”

United States v. Marvin Hersh, 297 F.3d 1233 (11th Cir. 2002). · cites it 4× “Applying the grouping provisions of U.S.S.G. §§ 1B1.2(d) and 3D1.2, comment, (n.”

United States v. Pedro Gutierrez, 963 F.3d 320 (4th Cir. 2020). · cites it 3× “at 931 (citing U.S.S.G. § 1B1.2(a)(1)(B)). In affirming the court’s 33 sentencing determinations, we did not question the district court’s established authority to make its sentencing findings by a preponderance of the evidence in determining the base offense level.”

United States v. Rose Hajay Bernard, 373 F.3d 339 (3rd Cir. 2004). · cites it 5× “” U.S.S.G. § 1B1.2, app. note 1. While U.S.”

United States v. McENRY, 659 F.3d 893 (9th Cir. 2011). · cites it 4× “3d at 1027 (alterations in original) (quoting U.S.S.G. § 1B1.2 (1998)). Only after the correct Chapter Two guideline had been selected was the district court to select the appropriate base offense level and, after that, make the adjustments within that guideline section.”

United States v. Jesus Barragan, 871 F.3d 689 (9th Cir. 2017). · cites it 2× “” U.S.S.G. § 1B1.2 cmt. n.4. 32 . Barragan concedes that the sixth factor does not favor him, as his sentence was not doubled.”

United States v. Boulware, 604 F.3d 832 (4th Cir. 2010). · cites it 2× “” U.S.S.G. § 1B1.2; see United States v. Lambert, 994 F.”

United States v. Barrett, 102 F.4th 60 (2d Cir. 2024). · cites it 3× “”), with U.S.S.G. § 1B1.2 cmt n.1 (1998) (“As a general rule, the court is to use the guideline section from Chapter Two most applicable to the offense of conviction.”

United States v. Randy Graham, 275 F.3d 490 (6th Cir. 2001). · cites it 2× “See U.S.S.G. § 1B1.2, commentary, applic. note 5 (applic.”

Show all 357 citing cases →

— U.S.S.G. §1B1.2(2) — 1 case

United States v. Maxwell, 351 F.3d 35 (1st Cir. 2003).

— U.S.S.G. §1B1.2(a) — 98 cases

United States v. McENRY, 659 F.3d 893 (9th Cir. 2011). “3d at 1027 (alterations in original) (quoting U.S.S.G. § 1B1.2 (1998)). Only after the correct Chapter Two guideline had been selected was the district court to select the appropriate base offense level and, after that, make the adjustments within that guideline section.”

United States v. Barrett, 102 F.4th 60 (2d Cir. 2024). “”), with U.S.S.G. § 1B1.2 cmt n.1 (1998) (“As a general rule, the court is to use the guideline section from Chapter Two most applicable to the offense of conviction.”

United States v. Vigil, 476 F. Supp. 2d 1231 (D.N.M. 2007). “See U.S.S.G. § 1B1.2. To determine the guideline section, U.”

United States v. Carolyn Jackson, 862 F.3d 365 (3rd Cir. 2017). “1(a)(1) (citing U.S.S.G. § 1B1.2). U.S.S.G. § 1B1.2(a) (“Applicable Guidelines”) states, inter alia, that the sentencing court should “[d]etermine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i.”

United States v. Julie Grant, 850 F.3d 209 (5th Cir. 2017).

— U.S.S.G. §1B1.2(a)(1)(A) — 1 case

United States v. Bryant, 356 F. Supp. 3d 216 (D. Conn. 2018).

— U.S.S.G. §1B1.2(a)(1)(B) — 3 cases

United States v. Pedro Gutierrez, 963 F.3d 320 (4th Cir. 2020). “at 931 (citing U.S.S.G. § 1B1.2(a)(1)(B)). In affirming the court’s 33 sentencing determinations, we did not question the district court’s established authority to make its sentencing findings by a preponderance of the evidence in determining the base offense level.”

Webb v. United States (D. Kan. 2021).

In re: CCA Recordings 2255 Litig. (D. Kan. 2021).

— U.S.S.G. §1B1.2(a)(2) — 1 case

United States v. Vigil, 476 F. Supp. 2d 1231 (D.N.M. 2007). “See U.S.S.G. § 1B1.2. To determine the guideline section, U.”

— U.S.S.G. §1B1.2(b) — 18 cases

United States v. Thomas Bryant, Jr., 996 F.3d 1243 (11th Cir. 2021). “13 is “applicable” in the same way anything else in the sentencing guidelines is “applicable”—it implements the relevant statute.”

United States v. Belfast, 611 F.3d 783 (11th Cir. 2010).

United States v. Charles Williamson, 953 F.3d 264 (4th Cir. 2020).

United States v. Robert Collazo, 984 F.3d 1308 (9th Cir. 2020).

— U.S.S.G. §1B1.2(c) — 28 cases

United States v. David Pennington, 78 F.4th 955 (6th Cir. 2023).

United States v. Jason Randall, 924 F.3d 790 (5th Cir. 2019).

United States v. Carleous Clay, 943 F.3d 805 (7th Cir. 2019).

United States v. Liviu-Sorin Nedelcu, 46 F.4th 446 (6th Cir. 2022).

United States v. Luis Antonio Rodriguez, Ramon Aquilino Perez, Cesar Rube Roque, & William Johnson, 928 F.2d 65 (2d Cir. 1991).

— U.S.S.G. §1B1.2(d) — 59 cases

United States v. Marvin Hersh, 297 F.3d 1233 (11th Cir. 2002). “Applying the grouping provisions of U.S.S.G. §§ 1B1.2(d) and 3D1.2, comment, (n.”

United States v. Deion Lockhart, 844 F.3d 501 (5th Cir. 2016). “Lockhart filed a motion seeking an evidentiary hearing, as the jury found him guilty of only Count Nine, the conspiracy count, but had not specified on which object offense(s) it had based his guilt, as U.S.S.G. § 1B1.2 requires. The district court denied that motion.”

United States v. Jesus Barragan, 871 F.3d 689 (9th Cir. 2017). “” U.S.S.G. § 1B1.2 cmt. n.4. 32 . Barragan concedes that the sixth factor does not favor him, as his sentence was not doubled.”

United States v. George A. Vallejo, 297 F.3d 1154 (11th Cir. 2002).

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