United States v. Doxie, 2016 U.S. App. LEXIS 5 (11th Cir. 2016), here, that deals with the Sentencing Guidelines' concept of grouping. First, the facts relevant to this discussion.
The defendant defrauded his employer by submitting fictitious invoices for which the employer periodically mailed checks to company of $642,196. In addition, the defendant charged the employer for false work-related expenses aggregating $287,466.33. He did not report the income on his tax returns for 2008-2011, underpaying taxes in those years by $299,750. For this misconduct, he "pled guilty to 21 counts of mail fraud for the false invoices (Counts 1 to 21), 41 counts of wire fraud for the false credit card charges (Counts 22 to 62), and 4 counts of filing a false tax return for the four tax years (Counts 63 to 66)." Each of the mail and wire fraud counts carries a 20 year maximum sentence. So, the maximum incarceration time for the fraud charges by stacking the counts would be 3,720 months. 18 USC § 1341, here, and § 1343, here. The tax charges are tax perjury with a 3 year maximum incarceration (§ 7206(1), here), so the 4 counts would add another 144 months maximum. The aggregate maximum sentence would thus be 3,864 months, well over 322 years.
Readers know that, where the counts of conviction are only for tax crimes, the major factor in the sentencing is the tax loss. See S.G. § 2T1.1(a)(1), here, and the tax loss table, here. The nuance is that multiple counts of conviction for tax and tax related crimes (e.g., the defraud / Klein conspiracy under 18 USC 371, here), the tax loss is aggregated (including tax loss for relevant conduct outside the counts of conviction) and the calculation made accordingly. Accordingly, for the initial Base Offense Level calculations in § 2T1.1(a)(1), it makes no difference whether there are multiple counts of conviction. The counts of conviction are principally relevant in determining the maximum period that can be imposed if the guidelines calculation exceeds that maximum.
Chapter Three of the Guidelines contains adjustments that must be considered. Part D deals with multiple counts of conviction. As noted above, multiple counts are not considered in a pure tax case in calculating the Base Offense Level. Where the counts of conviction are solely tax and tax-related, multiple counts of conviction do not require any adjustment to the calculations. However, where there are multiple counts of conviction included unrelated offenses, there may be an adjustment.
To follow the Guidelines, the Court "groups" the counts of conviction into "distinct Groups of Closely Related Counts," determines the Guidelines calculations for each group and then makes adjustment if there is more than one Group. In the example I just posited for only tax and tax-related crimes, there is only one Group, hence there is no further adjustment under Part D. But, in cases illustrated by Doxie, there may be more than one Group -- (i) the nontax financial crime with sentencing calculations under S.G. § 2B1.1(a)(1) and § 2B1.1(b)(1)(I), here, and (ii) the tax crime with calculations under § 2T1.1(a)(1). In such cases, if the Guidelines for only one of the Groups were considered, there would be no consideration of the convictions in the other Group. The purposes of Part D are two-fold: First, by grouping related counts of conviction, prevent the prosecutor from affecting the sentence by inflating the number of charges for a common pattern of conduct. Second, to provide some level for incremental punishment by increases in the offense level that then increases the guidelines ranges under the sentencing table.
Now, let's turn to Doxie. The key question in Doxie was whether there really were two groups to permit some level of incremental consideration under the grouping rules: I cut and paste the key parts of the Court's resolution of the issue:.
