United States 7th Circuit Court of Appeals Reports
U.S. v. VUCKO, 05-4182 (7th Cir. 1-12-2007) UNITED STATES
OF AMERICA, Plaintiff-Appellee, v. SUSAN M. VUCKO,
Defendant-Appellant. No. 05-4182. United States Court of
Appeals, Seventh Circuit. Argued June 6, 2006. Decided
January 12, 2007.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division, No. 03 CR
261 – Ronald A. Guzm??n, Judge.
Before BAUER, RIPPLE, and WOOD, Circuit Judges.
WOOD, Circuit Judge.
For many years, Susan Vucko was employed by the Northwest
Building Materials and Supply Company, where she both
worked at the retail sales counter and performed various
bookkeeping tasks. In the mid-1990s Vucko began to help
herself to Northwest’s money, eventually pilfering more
than $700,000. Meanwhile, Vucko also defrauded the United
States by falsely reporting her income on her tax returns
for five years. After she was caught, she pleaded guilty
without a plea agreement to wire fraud in violation of 18
U.S.C. § 1343 and to making a false statement in a
tax return in violation of 26 U.S.C. § 7206(1). The
court imposed concurrent sentences of two years’
imprisonment for each offense and three years of supervised
release and ordered restitution in the amount of $720,662.
Vucko now appeals from her sentence, claiming that the
district court erred by failing to group the charges under
§ 3D1.2(c) or (d) of the U.S. Sentencing Guidelines.
Although her argument might have some force if one were to
view those provisions of the Guidelines in isolation, we
conclude that the district court properly found that
grouping was inappropriate. We therefore affirm the
sentence.
I
There is little that we need to add to the facts underlying
Vucko’s convictions. At Northwest, Vucko was responsible
for reconciling credit card sales with merchant banks that
processed credit transactions for the company. In addition,
as part of her duties at the retail counter, she processed
cash and credit card transactions. In 1992 or 1993,
Northwest gave her the additional job of closing out the
retail sales counter at the end of each business day. This
involved balancing the cash drawer, ensuring that the cash
register and credit card swipe machine were properly
closed, and recording gross sales. Vucko also had to
prepare weekly and monthly reports totaling all retail
sales.
Beginning around February 1995, Vucko succumbed to the
temptation to help herself to some of the money she was
handling. She started to use Northwest’s credit card swipe
machine to process unauthorized credits or refunds for
banking and credit card accounts belonging to her or to
members of her family. Normally she did this at the end of
the business day, before closing out the cash register and
credit card machine. These “refunds” were typically between
$2,000 and $9,000. Because no one was around to supervise
Vucko’s work at closing time, she was able to conceal her
actions when she “zeroed out” the two machines after
processing her fraudulent transactions. From 1995 to 1999,
when she was caught, she accumulated at least $720,662 in
unauthorized credits, which she distributed among five
accounts held either in her name or the name of her husband
or one of her sons.
Vucko took a number of steps to keep Northwest from
discovering her scheme. First, she destroyed the tapes from
the cash register and credit card machines at the end of
each business day. Second, she falsified various sales
reports by under-reporting the amount of actual credit card
purchases at Northwest. Third, she destroyed the monthly
statements that Northwest received from its merchant banks.
At the same time, Vucko was concealing the true amount of
her annual income on the federal tax returns she prepared
for herself and her husband each year from 1995 through
1999. She under-reported her gross income by at least
$111,802 in 1995; by $129,298 in 1996; by $272,162 in 1997;
by $156,601 in 1998; and by $31,017 in 1999. In the
aggregate, the underreported income was almost $701,000,
just short of the amount Vucko embezzled. She filed her
final fraudulent return, covering tax year 1999, in April
2000, nearly a year after her thefts had been discovered.
II
At sentencing, the primary issue that Vucko raised was
whether her wire fraud and tax fraud counts had to be
grouped under the provisions of § 3D1.2(c) or (d).
Vucko argued before the district court that the wire fraud
guideline, then § 2F1.1, relied on the same offense
characteristic as the tax fraud guideline, §
2T4.1 — namely, the amount of loss. She also argued
that the two charges essentially reflected the loss of the
same money, even though the victims were different. The
district court rejected this position, with the following
explanation:
I’m satisfied that this is not double counting in any
meaningful sense. I think we have two separate and
distinct acts, either one of which could have been done
without the other. Tax evasion can be done without fraud
and fraud can be done without tax evasion. It takes a
specific independent thought process to do each. They’re
different in kind and they’re different in time and
they’re different in execution, so I’ll deny the objection
to and the request to modify on that basis.
After hearing argument on the factors identified in 18
U.S.C. § 3553(a), the court imposed its sentence.
III
On appeal, Vucko continues to urge that the district court
should have grouped her two offenses for sentencing
purposes. In order to decide whether grouping was required,
we first must settle on the applicable guideline for each
offense. For this purpose, it is undisputed that the 1998
version of the Guidelines Manual applies. The first offense
to which Vucko pleaded guilty was wire fraud. In the 1998
manual, Guideline § 2F1.1 provides the offense level
for fraud, starting with a base offense level of six. See
§ 2F1.1(a). (Amendment 617 to the Guidelines,
effective November 1, 2001, deleted § 2F1.1 and
moved a great number of economic offenses, including wire
fraud, to § 2B1.1; this change has no effect on
Vucko’s case.) There is a laundry list of specific offense
characteristics in the fraud guideline, starting with
progressive increases for the amount of monetary loss if
that loss is over $2,000. See § 2F1.1(b)(1). Other
relevant characteristics include the level of planning, the
number of victims, the use of mass marketing to commit the
fraud, a misrepresentation that one was acting on behalf of
a charitable or similar organization, the violation of a
judicial decree, the relocation of the fraud to another
jurisdiction to evade law enforcement, the commission of a
substantial part of the fraudulent scheme from outside the
United States, the use of sophisticated means, the
conscious or reckless risk of serious bodily injury, the
possession of a dangerous weapon, and acts that jeopardize
the soundness of a financial institution or affect it while
deriving more than $1 million in gross receipts from the
scheme. See § 2F1.1(b)(2)-(7). This is a lengthy
list, but it is noteworthy for two reasons. First, the
failure to report income from the fraud to the Internal
Revenue Service (IRS) is not a specific offense
characteristic under this guideline, though it is
foreseeable that in many cases of fraud the perpetrator also
will fail to report her income to the federal government on
her tax return. Second, each of these offense
characteristics is defined both in the text of the
guideline and in the Application Notes following the
guideline.
The other offense to which Vucko pleaded guilty was her
failure to report her ill-gotten gains on her tax returns.
Guideline § 2T1.1 applies to a number of tax
offenses, including the filing of a false or fraudulent tax
return. Section 2T1.1(a) offers two options for computing
the base offense level: either the level from § 2T4.1
(the tax table) corresponding to the tax loss, or level 6,
if there is no tax loss. Section 2T1.1(b), in contrast to
the fraud guideline, identifies only two specific offense
characteristics, which are brief enough to set out in full:
(1) If the defendant failed to report or to correctly
identify the source of income exceeding $10,000 in any
year from criminal activity, increase by 2 levels. If the
resulting offense level is less than level 12, increase to
level 12.
(2) If the offense involved sophisticated concealment,
increase by 2 levels.
The first of those is the one that Vucko believes requires
grouping of her two offenses.
It is true, as Vucko argues, that the criminal conduct
covered by the wire fraud was the same as the conduct that
gave her enough illegally derived income to trigger
§ 2T1.1(b)(1). Before jumping to Vucko’s desired
conclusion that grouping is required under §
3D1.2(c), however, we must ensure that this was the result
the Sentencing Commission intended and that this is the
proper way to read the relevant guidelines. The first step
in this process is to see what the Commission had to say.
The Introductory Commentary to Part T of the Guidelines
(Offenses Involving Taxation) reads as follows:
The criminal tax laws are designed to protect the public
interest in preserving the integrity of the nation’s tax
system. Criminal tax prosecutions serve to punish the
violator and promote respect for the tax laws. Because of
the limited number of criminal tax prosecutions relative
to the estimated incidence of such violations, deterring
others from violating the tax laws is a primary
consideration underlying these guidelines. Recognition
that the sentence for a criminal tax case will be
commensurate with the gravity of the offense should act as
a deterrent to would-be violators.
The commentary also elaborates on the specific offense
characteristic in § 2T1.1(b)(1). Application Note 3
defines the term “criminal activity” in § 2T1.1 to
mean “any conduct constituting a criminal offense under
federal, state, local, or foreign law.” The Background Note
explains further that:
[f]ailure to report criminally derived income is included
as a factor for deterrence purposes. Criminally derived
income is generally difficult to establish, so that the
tax loss in such cases will tend to be substantially
understated. An enhancement for offenders who violate the
tax laws as part of a pattern of criminal activity from
which they derive a substantial portion of their income
also serves to implement the mandate of 28 U.S.C. §
994(i)(2).
The latter statute is the one that spells out the duties of
the Sentencing Commission. Subpart (i)(2) directs the
Commission to “assure that the guidelines specify a
sentence to a substantial term of imprisonment for
categories of defendants in which the defendant . . .
committed the offense as part of a pattern of criminal
conduct from which the defendant derived a substantial
portion of the defendant’s income.”
The harms caused by tax offenses and the need for
deterrence that the Commission emphasized both inform the
proper application of the grouping guideline. Section 3D1.2
provides, in pertinent part:
All counts involving substantially the same harm shall be
grouped together into a single Group. Counts involve
substantially the same harm within the meaning of this
rule: . . .
(c) When one of the counts embodies conduct that is
treated as a specific offense characteristic in, or other
adjustment to, the guideline applicable to another of the
counts.
(d) When the offense level is determined largely on the
basis of the total amount of harm or loss, the quantity of
a substance involved, or some other measure of aggregate
harm, or if the offense behavior is ongoing or continuous
in nature and the offense guideline is written to cover
such behavior.
According to the Introductory Commentary for this part of
the Guidelines Manual (entitled “Multiple Counts”), “[t]he
rules in this Part seek to provide incremental punishment
for significant additional criminal conduct.” (Emphasis
added.) Application Note 5 to § 3D1.2 advises that
“when conduct that represents a separate count, e.g.,
bodily injury or obstruction of justice, is also a specific
offense characteristic in or other adjustment to another
count, the count represented by that conduct is to be
grouped with the count to which it constitutes an
aggravating factor.” This is to prevent “double counting”
— exactly the concern that the district court
recognized was implicated. The Application Note also
indicates, however, that “this rule applies only if the
offenses are closely related.” It gives examples of what
kind of offenses would satisfy that criterion. For
instance, grouping is not proper for a bank robbery
committed on one occasion and an assault on a separate
occasion, because the harm from the assault is not a
specific offense characteristic under the bank robbery
guideline and represents a different harm. In contrast, the
use of a firearm in a bank robbery and unlawful possession
of that firearm should be grouped. See § 2B3.1(b)(2)
(possession of a firearm is a specific offense
characteristic for robbery). Obstruction of justice, which
is handled as a separate adjustment under § 3C1.1
and thus is not technically a “specific offense
characteristic,” nevertheless is covered by §
3D1.2(c) for grouping purposes.
The Background Note acknowledges that this is a difficult
area. It states, however, that offenses involving different
victims (or societal harms) “are grouped together only as
provided in subsection (c) or (d).” Conceding that it is
not always “clear cut” whether or not to group, the Note
concludes with an appeal to broad principles: “In
interpreting this Part and resolving ambiguities, the court
should look to the underlying policy of this Part as stated
in the Introductory Commentary.”
Vucko is not the first person who initially committed fraud
and then failed to report her income from that fraud. We
are therefore not the first court to face the question
whether these offenses should be grouped under §
3D1.2(c). The issue is difficult enough that it has caused
a split among our sister circuits.
The Fifth Circuit encountered this problem in United States
v. Haltom, 113 F.3d 43 (5th Cir. 1997). Haltom pleaded
guilty to one count of mail fraud and four counts of tax
evasion. The district court found that grouping was
inappropriate, but the court of appeals reversed. Noting
that the Introductory Commentary explained that grouping
provides for “incremental punishment for significant
additional criminal conduct,” the court thought that the
key word there was “significant.” “Sometimes,” it
commented, “an additional count does not represent
significant additional criminal conduct, and does not lead
to an increased sentence.” Id. at 45. Turning specifically
to § 3D1.2(c), the court reasoned, “Convictions on
multiple counts do not result in a sentence enhancement
unless they represent additional conduct that is not
otherwise accounted for by the guidelines.” Id. at 45-46
(emphasis in original). The defendant’s offense level under
the tax guideline was increased by two, because the source
of the unreported income was criminal activity. The court
described as “indisputable” the fact that the mail fraud
count covered conduct that was being treated as a specific
offense characteristic for the tax count. Id. at 46.
Immediately after so concluding, however, the court went on
to concede:
As a matter of common parlance, Haltom’s mail fraud and
tax evasion convictions cannot readily be said to have
caused “substantially the same harm.” See U.S.S.G.
§ 3D1.2. The mail fraud damaged the private
financial interests of Haltom’s corporate clients; the tax
offenses harmed the government. Absent a contrary
directive in the guidelines themselves, we might have
considered these harms quite distinct and concluded that
Haltom’s offenses were not groupable.
113 F.3d at 46. It nonetheless thought that grouping was
compelled by the guidelines.
The First Circuit took a different approach in United
States v. Martin, 363 F.3d 25 (1st Cir. 2004). There the
defendant also pleaded guilty to fraud and tax evasion, and
the district court decided that grouping was required. It
computed an offense level of 20 for the fraud counts and 18
for the tax evasion counts, the latter including the two
extra points for income derived from criminal activity that
exceeds $10,000. Following an analysis similar to that in
Haltom, it grouped based on § 3D1.2(c). Reversing,
the First Circuit noted that the Guidelines “do not require
that all of the conduct be `fully accounted for’; rather, it
is enough that conduct `embodied’ in the second offense is
`treated as an adjustment’ to the other offense.” Id. at 41
(quoting United States v. Sedoma, 332 F.3d 20, 27 (1st Cir.
2003) (internal quotation marks omitted) (quoting U.S.S.G.
§ 3D1.2(c))). As a practical matter, the decision to
group the tax and fraud offenses meant that the final
offense level was two notches lower than it would have been
without grouping, just as in Vucko’s case. The First
Circuit acknowledged that “[t]he text of § 3D1.2(c),
taken alone, appears to support grouping in this case.”
Martin, 363 F.3d at 42. Nevertheless, the court pointed out,
the Guidelines must be interpreted in light of the
Commentary, which is “authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with,
or a plainly erroneous reading of, that guideline.” Id.
(quoting Stinson v. United States, 508 U.S. 36, 38 (1993)).
Thus, “even when one count embodies conduct treated as an
adjustment to a second count, the counts cannot be properly
grouped under § 3D1.2(c) unless they are `closely
related.'” Martin, 363 F.3d at 42. The First Circuit held
that the fraud and tax evasion counts are not “closely
related” because they involve “different victims,” cause
“different harms,” and required “different conduct.” Id. at
42-43.
The court observed that if the two offenses were grouped,
“there would be no punishment consequences for the tax
evasion conduct.” Id. at 43. This was because the offense
level for the fraud was 20, and that for the tax evasion
was 18; with grouping, “the offense level for the group is
set, pursuant to § 3D1.3, at the highest AOL
[adjusted offense level] of the offenses in the group.” Id.
at 41. In contrast, if the two counts were not grouped,
then § 3D1.4 would require the addition of two more
levels for the two counts. (This is because each count would
be its own group, and the Guidelines instruct that the
group with the highest offense level counts as one “unit”;
an additional unit is added for each group that is either
equally serious or from one to four levels less serious.
See § 3D1.4(a). If there are two units, as here, an
additional two levels must be added to the offense level.)
Only by refusing to group, the court said, could it achieve
an “outcome [that] is consistent with an important but
simple proposition: one who receives stolen money and fails
to report that income in a tax return is generally more
culpable than one who merely receives stolen money.” Id. at
43. Thus, the court concluded, the decision not to group
comports both with the underlying purpose of §
2T1.1(b)(1), which increases the offense level for failing
to report criminal proceeds in part because the tax losses
tend to be understated, and with 28 U.S.C. §
994(i)(2), which is the statutory mandate “to punish with a
term of imprisonment those defendants who derive a
substantial part of their income from criminal activity.”
363 F.3d at 44.
The Third and Tenth Circuits take the same approach as the
First. In United States v. Astorri, 923 F.2d 1052 (3d Cir.
1991), the Third Circuit held under an earlier version of
the Guidelines that neither specific offense characteristic
applicable to tax offenses (failing to report income
exceeding $10,000 per year from criminal activity or
concealing criminal activity from which the defendant
derived a substantial portion of the income) “constitute[d]
conduct embodied in the fraud count.” Id. at 1056. It thus
concluded that grouping under § 3D1.2(c) was
inappropriate. Similarly, in United States v. Peterson, 312
F.3d 1300, 1302-04 (10th Cir. 2002), the Tenth Circuit
found that the offenses were not closely related and “the
specific offense characteristic for failure to report
criminally-derived income is not sufficiently based here on
conduct embodied in the mail fraud count as to warrant
grouping.” See also Weinberger v. United States, 268 F.3d
346, 353-54 (6th Cir. 2001) (rejecting grouping under
§ 3D1.2(c) because the harms were not closely
related and finding it did not need to reach the double
counting issue because the offense level would be the same
“regardless of whether the court applied the two-level
statutory enhancement under U.S.S.G. §
2T1.1(b)(1)”); United States v. Vitale, 159 F.3d 810, 813-15
(3d Cir. 1998) (reaffirming Astorri and rejecting Haltom,
leaving open a little wiggle room for situations in which
the adjustment by the tax evasion enhancement actually
alters the final offense level).
IV
Several reasons persuade us to reject grouping in these
circumstances. First, looking at § 3D1.2(c), we
agree with the First and Tenth Circuits that the “specific
offense characteristic” in the tax guideline is too broad
to require the conclusion that it encompasses wire fraud in
particular. Wire fraud is just one of countless ways to
obtain income from criminal activity. To suggest that any
criminal offense that produces income is subsumed into the
tax guideline calculation with a two-level enhancement is
to create a category without limits. This is different from
possessing a gun during a bank offense, where precisely
that conduct is identified as a specific offense
characteristic, or obstruction of justice, which is a
specific adjustment under § 3C1.1. There is a
distinction between saying that any underlying criminal act
increases the offense level and that a specific underlying
act increases the offense level. Furthermore, the
Commentary indicates that the enhancement is not supposed
to account for the underlying crime, but rather for the
presumption that officials will not be able to calculate
the full extent of the ill-gotten gains that a defendant
failed to report. Indeed, in this case, as we noted
earlier, Vucko went to great lengths to cover up her fraud
and thus disguise the amount of her illegal income. The
purpose of the enhancement suggests that it does not and
was not intended to add additional punishment to take the
wire fraud into account, but rather that it was intended to
recognize that Vucko may have underreported more income
than the IRS detected.
Second, even if the wire fraud were encompassed by the tax
enhancement, the crimes still must be “closely related” to
be grouped under § 3D1.2(c) according to the
commentary. These two counts fail that basic test. Vucko
committed two different crimes, causing two different harms
and harming two different victims. She did so at different
times through different actions. This is enough to dispose
of her argument that grouping was required under §
3D1.2(d). As we observed in United States v. Brisson, in
which the defendant also was convicted of fraud and tax
offenses but made a grouping argument under §
3D1.2(d) rather than (c):
There was no necessary connection between Brisson’s fraud
on his bank and his bilking of the government. Brisson
argues his three counts should go together because they
were all “economic offenses arising out of the failed
ownership of the hotel.” But that is both too high a level
of generality and a disingenuous spin on the facts.
Brisson’s false tax claims were filed after he lost the
hotel and was desperate for money. But his diversion of
the hotel’s room receipts in violation of his bank’s
security agreement helped bring about the failure of his
ownership; it did not “aris[e] out of” that failure.
Moreover, Brisson’s conduct involved different victims. .
. . In short, the bank fraud and tax fraud did not
represent “substantially the same harm,” U.S.S.G. §
3D1.2, so [the district judge] did not err in refusing
to group them.
448 F.3d 989, 992 (7th Cir. 2006) (emphasis omitted). The
fact that Vucko’s crimes are generally related, in that her
initial wire fraud scheme produced the funds she failed to
report, is insufficient to make the crimes “closely
related.”
Although Vucko argues that United States v. Wilson, 98 F.3d
281 (7th Cir. 1996), compels a ruling in her favor, we find
that case distinguishable. There we found that certain
fraud and money laundering charges were closely related and
subject to grouping under § 3D1.2(d), because
“[w]ithout the fraud there would have been no funds to
launder.” Id. at 282-83 (quoting United States v. Mullens,
65 F.3d 1560, 1564 (11th Cir. 1995)). Wilson’s money
laundering provided the mechanism for perpetuating his
Ponzi scheme, and both of his crimes targeted the same set
of victims. Vucko’s crimes, in contrast, separately
targeted Northwest and the United States. Vucko also urges
that grouping is consistent with two cases from the Second
Circuit, United States v. Petrillo, 237 F.3d 119 (2d Cir.
2000), and United States v. Fitzgerald, 232 F.3d 315 (2d
Cir. 2000), both of which hold that tax and fraud offenses
that are part of a common criminal scheme should be grouped
under § 3D1.2(d). As we have already noted, however,
the scheme must be something more than a plan to become
rich. There is no evidence of such a common scheme in
Vucko’s case. To the extent that the Second Circuit cases
might be read to support a broader rule covering all fraud
and tax offenses, we note only that we have already found
in Brisson, United States v. Chavin, 316 F.3d 666, 673-76
(7th Cir. 2002), and United States v. Johnson, 117 F.3d
1010, 1014 (7th Cir. 1997), that mail or wire fraud and tax
evasion normally involve different harms and thus should not
be grouped under § 3D1.2(d). We see no reason to
revisit those holdings.
Although double counting certainly should be avoided, there
is no risk of it here. According to the Pre-Sentence
Report, the adjusted offense level for Vucko’s fraud was
18. The adjusted offense level for her tax offense was also
18, including the two-level increase called for by §
2T1.1(b)(1) for the income she derived from her wire fraud.
Because her offenses were not grouped, she earned one unit
for each offense. See § 3D1.4. With two “units,” her
overall offense level was increased by two, bringing it up
to 20. Id. Had she not been given the two extra levels
provided by § 2T1.1(b), her tax offense level would
have been 16. Under § 3D1.4, Vucko still would have
received one unit for the fraud and one unit for the tax
offense, because the tax offense level (16) would have been
just two levels less serious than the fraud level (18). The
extra two levels required because she had two units would
have been added to the higher offense level, §
3D1.4, and thus she would have wound up with an adjusted
level of 20. In other words, Vucko’s final offense level
was the same with or without the extra two levels
attributable to § 2T1.1(b).
This, in fact, suggests a possible solution to the
hypothetical problem Vucko’s case suggests, even apart from
the sentencing flexibility inherent in the system of
advisory guidelines. In cases where a defendant faces
separate counts for the criminal activity that produced the
unreported income and for the tax crime, and double-counting
is possible (unlike Vucko’s case), the court can simply
refrain from adding the § 2T1.1(b)(1) two-level
enhancement to the tax offense. Cf. United States v. White,
222 F.3d 363, 373-76 (7th Cir. 2000) (holding that a court
may not both convict under 18 U.S.C. § 924(c) for
use of weapon and impose the guidelines enhancement under
U.S.S.G. § 2B3.1(b)(2) for use of the same weapon in
the same crime). This approach is preferable to a refusal
to group. Without grouping, where the tax offense is minor
enough to lead to an offense level more than four less than
the principal offense, the defendant would earn only
one-half unit, or in the extreme case no extra units at
all. See § 3D1.4(b) (one-half unit for groups 5 to 8
levels less serious than the group with the highest offense
level); § 3D1.4(c) (disregard groups that are 9
levels less serious than the one with the highest score).
In this way, the Guidelines produce a final offense level
that reflects the seriousness of the underlying conduct.
We note, moreover, that even where both the tax-specific
offense characteristic and grouping affect the final
sentence, the Tenth Circuit suggested in Peterson there is
still no problem with double counting. As it saw matters,
there is no double counting because “the specific offense
characteristic for the tax evasion count relates to the
defendant’s subsequent decision and conduct regarding the
tax treatment of those monies he embezzled from the
companies, and this conduct is not embodied within the
defendant’s use of the mail to conceal the embezzlement.”
312 F.3d at 1304 (adopting the district court’s reasoning).
Grouping under the circumstances of Vucko’s case would
seriously undercut the concept of “incremental punishment”
that underlies both the grouping rules and the Guidelines
as a whole. The effect of grouping Vucko’s offenses would
be to eliminate the marginal punishment for her second
offense, because she would have only one group with an
offense level of 18 (the level of each one of her
offenses). There would thus be no increase at all for her
additional crime (again, apart from any adjustment the
district court might make after calculating the advisory
guideline range).
V
We conclude that the district court came to the correct
result when it rejected grouping. Vucko’s two offenses were
not closely enough related to justify grouping under
§ 3D1.2(d), nor does one contribute a specific
offense characteristic to the other such that §
3D1.2(c) should apply. We therefore AFFIRM the judgment of
the district court.