Grouping separately upheld for illegal reentry conviction and possession of a firearm by an illegal alien conviction

In U.S. v. Jimenez, the 11th Circuit addressed a federal sentencing guidelines issue involving grouping counts. The district court grouped Jimenez’s conviction for illegal reentry after deportation and his conviction for firearm possession by an illegal alien, giving him more jail time. The 11th Circuit denied Jimenez’s challenge and held that the district court was correct in not grouping these two counts. Jimenez, a citizen of Mexico, was convicted of reentering the U.S. after having been deported. He was arrested after a Gwinnett County, Georgia police officer found him in a parked car in possession of a firearm. He was charged and convicted of possessing a firearm as an illegal alien. He was also charged with reentry after deportation. Prior to his deportation he had a felony drug conviction that resulted in a substantial 16 level increase in his offense level. The Presentence Investigation Report calculated Jimenez’s offense level separately for each count of conviction and then determined the combined offense level under USSG §3D1.4 resulted in a higher offense level giving him a guideline range of 57 to 71 months. Jimenez objected, arguing that his guidelines range should have been calculated by grouping the two counts of conviction together. This would avoid the 2-level increase giving him a guideline range of 46 to 57 months.

The 11th Circuit held the district court correctly calculated the sentence of grouping the counts separately. Under section 3D1.2, the counts are grouped together if they “involve substantially the same harm.” The counts must show any of the following:
1. They involve the same victim and the same act or transaction 2. They involve the same victim and two or more acts or transaction that are connected by a common criminal objective or par of a common scheme or plan 3. One of the counts embodies conduct that is treated as a specific offense characteristic in the guidelines applicable to another of the counts 4. The offense level for each count is determined largely on the basis of the total amount of harm or loss.

The two counts of conviction do not fall within any of the four subsections.
There is no identifiable victim so there is no single victim. The victim is the societal interests and the offense of illegal reentry and possession of a firearm harm different societal interests. Each of the specific criminal statutes involves different conduct and the statutes do not further the same societal interests. One count seeks to enforce immigration laws; the other count protects society against firearm possession by those deemed unqualified to possess them. Because the societal interests implicate are different, the counts are not sufficiently closely related to be grouped together. Furthermore, neither count involved conduct that was a specific offense characteristic supporting an adjustment to the offense level of the other count. That means there was no double counting.