U.S. v. Harper, 91-3430

• Decision Date: 11 September 1992
• Docket Number: No. 91-3430,91-3430
• Citation: 972 F.2d 321
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Russell N. HARPER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 321

972 F.2d 321

UNITED STATES of America, Plaintiff-Appellee, v. Russell N. HARPER, Defendant-Appellant.

No. 91-3430.

United States Court of Appeals Eleventh Circuit.

Sept. 11, 1992.

Cynthia R. Hawkins, Asst. U.S. Atty., Orlando, Fla., for defendant-appellant.

Mark E. NeJame, NeJame & Hyman, Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, EDMONDSON, Circuit Judge, and MORGAN, Senior Circuit Judge.

PER CURIAM:

Defendant Russell Harper travelled regularly to Texas for marijuana imported from Mexico, then brought it back to Orlando, Florida, where he sold it. He gave his uncle and another person cash from the proceeds to purchase vehicles titled in the uncle and other person's names. Harper also used the proceeds to purchase a home.

After eight months of surveillance by the Drug Enforcement Administration (DEA), Harper was arrested. He eventually pled guilty to drug trafficking and money laundering offenses. He now appeals the sentencing court's refusal to group these offenses as "closely related counts" pursuant to Sentencing Guidelines § 3D1.2(b) and (d). We AFFIRM.

Because "[c]ounts involving different victims (or societal harms in the case of 'victimless' crimes) are grouped together only as provided in subsection (c) or (d)," U.S.S.G. § 3D1.2, comment. (backg'd), we reject grouping under section 3D1.2(b). Drug offenses and money-laundering offenses are victimless crimes which "invade distinct societal interests; the distribution of illegal drugs affects the drug user and the community by increasing lawlessness and violence, money laundering disperses capital from lawfully operating economic institutions to criminals in and out of the country." United States v. Gallo, 927 F.2d 815, 824 (5th Cir.1991).

Subsection (d) provides a means for the sentencing judge to group counts involving the same harm "[w]hen 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." Because they are quantitative in nature, a series of money laundering offenses or a series of drug trafficking offenses might be covered by this subsection. See United States v. Toler, 901 F.2d 399, 402 (4th Cir.1990) (dicta that child pornography and interstate transportation of minor with intent to engage in prohibited sexual conduct are "not fungible item offenses (e.g. money, drugs, property) that would be grouped under U.S.S.G. section 3D1.2(d)").

Subsection (d) goes on to categorize offenses in three ways: (1) offenses that should be grouped for sentencing; (2) offenses that should not be grouped for sentencing; and (3) offenses for which the decision regarding grouping should be made on a case-by-case basis. The relevant guideline provision for Harper's money laundering offense is section 2S1.1; the relevant drug trafficking provision is section 2D1.1. Both of these provisions fall within the first category; so Harper says his offenses should be grouped together. But grouping is not automatic, even if all offenses in question are encompassed within this first category.

In some circumstances, automatic grouping detracts from the main purpose of section 3D1.2: to combine offenses involving closely related counts. See also U.S.S.G. § 3D1.2, comment. (n. 6) ("Counts involving offenses to which different offense guidelines apply are grouped together...