U.S.S.G. § 3D1.3

Offense Level Applicable to Each Group of Closely Related Counts

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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, apply the offense guideline that produces the highest offense level.

Commentary

Application Notes:

1. The "offense level" for a count refers to the offense level from Chapter Two after all adjustments from Parts A, B, and C of Chapter Three.

2. When counts are grouped pursuant to §3D1.2(a)–(c), the highest offense level of the counts in the group is used. Ordinarily, it is necessary to determine the offense level for each of the counts in a Group in order to ensure that the highest is correctly identified. Sometimes, it will be clear that one count in the Group cannot have a higher offense level than another, as with a count for an attempt or conspiracy to commit the completed offense. The formal determination of the offense level for such a count may be unnecessary.

3. When counts are grouped pursuant to §3D1.2(d), the offense guideline applicable to the aggregate behavior is used. If the counts in the Group are covered by different guidelines, use the guideline that produces the highest offense level. Determine whether the specific offense characteristics or adjustments from Chapter Three, Parts A, B, and C apply based upon the combined offense behavior taken as a whole. Note that guidelines for similar property offenses have been coordinated to produce identical offense levels, at least when substantial property losses are involved. However, when small sums are involved the differing specific offense characteristics that require increasing the offense level to a certain minimum may affect the outcome.

Background: This section provides rules for determining the offense level associated with each Group of Closely Related Counts. Summary examples of the application of these rules are provided at the end of the Commentary to this part.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (amendments 257 and 303); November 1, 2001 (amendment 617); November 1, 2004 (amendment 674); November 1, 2023 (amendment 824); November 1, 2025 (amendment 836).

Notes of Decisions

Cited in 387 cases (33 in the last 5 years), 1989–2026 · leading case: United States v. Samuel Saldana, Jr., United States of Am. v. Saul Saldana, 427 F.3d 298 (5th Cir. 2005).

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United States v. Samuel Saldana, Jr., United States of Am. v. Saul Saldana, 427 F.3d 298 (5th Cir. 2005). · cites it 3× “” 52 In the ordinary case, a district court may adjust an offense level upward under U.S.S.G. §§ 3D1.3 and 3D1.4 for multiple count convictions, to account for the greater harm; however, no such adjustment was available in this case.”

United States v. Darrell Eversole, 487 F.3d 1024 (6th Cir. 2007). · cites it 5× “He contends that the district court violated U.S.S.G. § 3D1.3’s command that, when closely related counts are grouped together for sentencing purposes, the offense level applicable to the most serious of the counts comprising the group controls.”

United States v. Emanuel Marseille, 377 F.3d 1249 (11th Cir. 2004). · cites it 3× “” USSG § 3D1.3, cmt. n. 1. 9 . We disagree with the Ninth Circuit in one respect; we do not think the grouping rules control calculations under Chapter Four.”

United States v. Ponzo, 853 F.3d 558 (1st Cir. 2017). · cites it 2× “2016) (citing U.S.S.G. §§ 3D1.3, 3D1.4). At the risk of oversimplification, here is how that ordi-.”

United States v. Hugo Gutierrez-Sanchez, 587 F.3d 904 (9th Cir. 2009). · cites it 2× “3(a); see also U.S.S.G. § 3D1.3 cmt. n.2 (“When counts are grouped .”

United States v. Chad Austin, 239 F.3d 1 (1st Cir. 2001). · cites it 4× “He asserts that this error, when coupled with the first, resulted in an erroneous one-level enhancement in his offense level because the court applied U.S.S.G. § 3D1.3 to determine the offense level for his multiple counts rather than U.”

United States of Am., Cross-Appellee v. John Canova, 412 F.3d 331 (2d Cir. 2005). · cites it 2× “10 See U.S.S.G. § 3D1.3(a) (stating that for offenses grouped pursuant to § 3D1.”

United States v. Martin, 363 F.3d 25 (1st Cir. 2004). · cites it 3× “8 Applying U.S.S.G. § 3D1.3, the court set the grouped offense level at 20 — the highest offense level of the counts in the group (the fraud counts).”

United States v. Grant, 636 F.3d 803 (6th Cir. 2011). · cites it 3× “[11] Grant's reliance on application note 2 of U.S.S.G. § 3D1.3 (2004) is misplaced because the counts being grouped in this case are distinct crimes with separate Guidelines provisions that "involv[e] substantially the same harm" and "transactions connected by a common criminal…”

United States v. Carole Diaz, AKA Carole M. Cefaratti, Carole Cefaratti-Diaz, 245 F.3d 294 (3rd Cir. 2001). · cites it 2× “See U.S.S.G. §§ 3D1.3(a), 3D1.4; see also Smith, 186 F.”

United States v. Gordon, 291 F.3d 181 (2d Cir. 2002). · cites it 6× “See U.S.S.G. § 3D1.3(a)(determining offense levels under § 3D1.”

United States v. Certified Env't Servs., Inc., 753 F.3d 72 (2d Cir. 2014). · cites it 2× “See U.S.S.G. § 3D1.3(a). The defendants objected to the initial loss calculations.”

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— U.S.S.G. §3D1.3(a) — 197 cases

United States of Am., Cross-Appellee v. John Canova, 412 F.3d 331 (2d Cir. 2005). “10 See U.S.S.G. § 3D1.3(a) (stating that for offenses grouped pursuant to § 3D1.”

United States v. Carole Diaz, AKA Carole M. Cefaratti, Carole Cefaratti-Diaz, 245 F.3d 294 (3rd Cir. 2001). “See U.S.S.G. §§ 3D1.3(a), 3D1.4; see also Smith, 186 F.”

United States v. Emanuel Marseille, 377 F.3d 1249 (11th Cir. 2004). “” USSG § 3D1.3, cmt. n. 1. 9 . We disagree with the Ninth Circuit in one respect; we do not think the grouping rules control calculations under Chapter Four.”

United States v. Darrell Eversole, 487 F.3d 1024 (6th Cir. 2007). “He contends that the district court violated U.S.S.G. § 3D1.3’s command that, when closely related counts are grouped together for sentencing purposes, the offense level applicable to the most serious of the counts comprising the group controls.”

United States v. Certified Env't Servs., Inc., 753 F.3d 72 (2d Cir. 2014). “See U.S.S.G. § 3D1.3(a). The defendants objected to the initial loss calculations.”

— U.S.S.G. §3D1.3(b) — 95 cases

United States v. Von Dale Massey, Sr., United States of Am. v. Sandra Wilkins, United States of Am. v. Jack Z. Wilkins, 48 F.3d 1560 (10th Cir. 1995).

United States v. Gregory E. Caplinger, 339 F.3d 226 (4th Cir. 2003).

United States v. Samuel Saldana, Jr., United States of Am. v. Saul Saldana, 427 F.3d 298 (5th Cir. 2005). “” 52 In the ordinary case, a district court may adjust an offense level upward under U.S.S.G. §§ 3D1.3 and 3D1.4 for multiple count convictions, to account for the greater harm; however, no such adjustment was available in this case.”

United States v. Zanghi, 189 F.3d 71 (1st Cir. 1999).

United States v. Fred De La Mata, 266 F.3d 1275 (11th Cir. 2001).

— U.S.S.G. §3D1.3(b)(1998) — 2 cases

United States v. Saldana (5th Cir. 2005).

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