Filed: Jun. 05, 1995
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Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 6-5-1995 United States v Griswold Precedential or Non-Precedential: Docket 94-1979 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "United States v Griswold" (1995). 1995 Decisions. Paper 151. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/151 This decision is brought to you for free and open access by the Opinions of the United States
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 6-5-1995 United States v Griswold Precedential or Non-Precedential: Docket 94-1979 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "United States v Griswold" (1995). 1995 Decisions. Paper 151. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/151 This decision is brought to you for free and open access by the Opinions of the United States ..
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Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
6-5-1995
United States v Griswold
Precedential or Non-Precedential:
Docket 94-1979
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation
"United States v Griswold" (1995). 1995 Decisions. Paper 151.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/151
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-1979
UNITED STATES OF AMERICA
v.
GREGORY GRISWOLD,
a/k/a ROBERT SAUNDERS,
a/k/a JULIUS H. COLLIER, JR.,
a/k/a THEODORE COBB
Gregory Griswold,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 94-cr-00083)
Submitted May 15, 1995
BEFORE: COWEN, LEWIS and GARTH
Circuit Judges
(Filed June 5, l995 )
Nancy B. Winter
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
COUNSEL FOR APPELLEE
UNITED STATES OF AMERICA
James M. Becker
Saul, Ewing, Remick & Saul
3800 Centre Square West
Philadelphia, PA 19102
COUNSEL FOR APPELLANT
GREGORY GRISWOLD
OPINION
COWEN, Circuit Judge.
In this appeal, we are asked to decide whether the
district court erred: (1) in ruling that eight firearm counts in
the indictment formed five separate groups under U.S.S.G. §
3D1.2, instead of a single group; and (2) when, in sentencing the
defendant under the more favorable 1990 sentencing guidelines, it
failed to accord the defendant an additional point for acceptance
of responsibility as is permitted under § 3E1.1 pursuant to the
1993 sentencing guidelines. Because we conclude that the
district court did not err in applying and interpreting the
Sentencing Guidelines, we will affirm the sentence of appellant
in all respects.
I. FACTUAL AND PROCEDURAL HISTORY
Between May 22, 1989 and June 26, 1991, appellant
Gregory Griswold ("Griswold") purchased seven firearms from a
licensed firearms dealer in Philadelphia. Specifically, he
purchased two firearms on May 22, 1989, two more on August 8,
1989, and one each on October 6, 1989, March 4, 1991, and June
26, 1991. On the first three occasions, Griswold used the
fictitious name of "Julius H. Collier, Jr." The last two times
he used the name "Robert Saunders." For each firearm, he
completed the standard "Firearms Transaction Record" of the
Bureau of Alcohol, Tobacco, and Firearms. On the form, he
misrepresented that he had never been convicted in any court of a
crime punishable by imprisonment for a term exceeding one year,
when, in fact, he had previously been convicted of third degree
homicide. On July 11, 1991, Philadelphia Police Officers, while
executing a search warrant at a residence in Philadelphia, found
Griswold in possession of two of the illegally purchased
firearms.
On February 23, 1994,1 a federal grand jury in the
Eastern District of Pennsylvania returned an indictment charging
Griswold with seven counts of making false statements to a
licensed dealer in connection with the acquisition of a firearm,
in violation of 18 U.S.C. § 922(a)(6), and one count of unlawful
possession of firearms by a previously convicted felon, in
violation of 18 U.S.C. § 922(g)(1).2 Griswold entered into a
1
. The delay between the initial arrest and the indictment of
Griswold was due to the fact that he remained a fugitive for more
than two years.
2
. The indictment charged Griswold as follows:
COUNT DATE OF FIREARM ALIAS USED OFFENSE
OFFENSE
One 5-22-89 Intratec Julius False
9mm. semi- Collier, statement
auto Jr.
Two 5-22-89 Colt .380 Julius False
semi-auto Collier, statement
Jr.
Three 8-8-89 Sig Sauer Julius False
.380 semi- Collier, statement
auto Jr.
Four 8-8-89 Colt .380 Julius False
semi-auto Collier, statement
Jr.
plea agreement with the government and on May 16, 1994, he
entered a plea of guilty to all eight counts. The plea agreement
contained several stipulations relevant to the computation of
Griswold's sentencing guideline range. Because the Commission
had amended § 2K2.1 after Griswold committed the charged
offenses, the 1993 version would have resulted in a harsher
sentence than the version in effect when he committed the
offenses, raising a possible ex post facto challenge. Both
parties agreed that the version of U.S.S.G. § 2K2.1 effective
November 1, 1990 was the applicable guideline for determining the
offense level of the firearms offenses.3 The parties further
(..continued)
Five 10-6-89 Beretta Julius False
.380 semi- Collier, statement
auto Jr.
Six 3-4-91 Beretta .25 Robert False
semi-auto Saunders statement
Seven 6-26-91 Glock 9mm. Robert False
semi-auto Saunders statement
Eight 7-11-91 same as Robert Felon in
counts 5 Saunders possession
and 6
3
. All parties agree that the "stipulations [were] not binding
upon either the Probation Department or the Court." App. at 20.
We further recognize that despite this stipulation, Griswold
properly preserved for appeal his right to argue that the 1993
guidelines should be applied so that he may gain the benefit of
one extra point for acceptance of responsibility pursuant to §
3E1.1. This argument was not waived because at the time of the
stipulation, the parties agreed that Griswold would be entitled
to a maximum of two points for acceptance of responsibility. The
issue of the extra point did not arise until after the district
court, exercising its discretion, disregarded that portion of the
plea agreement which grouped all eight offenses as one. See
infra part IV.A. for discussion of the grouping of the offenses
stipulated that the eight firearms offenses constituted a single
group under U.S.S.G. § 3D1.2.4
However, over Griswold's objection at sentencing, the
probation office concluded and the district court agreed, that
the application of U.S.S.G. § 3D1.2 to the eight firearms
offenses yielded five separate groups, not a single group as the
parties had stipulated. As a result of the district court's
grouping of the firearms offenses into five groups, Griswold's
offense level was increased to 17, which would have made him
eligible for a three-level reduction for acceptance of
responsibility under § 3E1.1 of the 1993 guidelines. However,
the district court concluded that the 1990 version of § 3E1.1 was
controlling and granted only a two-level reduction. This appeal
followed.
(..continued)
and part IV.C. for discussion of the applicability of the 1993
guidelines.
4
. Both parties maintain that the plea agreement provided that
all eight offenses would be grouped as one pursuant to § 3D1.2.
Although the plea agreement states,"[t]he government and the
defendant agree and stipulate that the offenses group for the
purposes of sentencing pursuant to U.S.S.G. § 3D1.2," App. at
20, it does not explicitly state that all of the offenses will be
grouped into one group. Because such ambiguous language lends
itself to a variety of interpretations, we believe that the
better practice in drafting plea agreements is to explicitly
state how many groups will be formed as a result of "grouping."
As evidenced by the district court's decision in this matter, it
is not always the case that grouping under § 3D1.2 will yield
only one group.
II. JURISDICTION
The district court had jurisdiction to entertain this
criminal matter pursuant to 18 U.S.C. § 3231 insofar as the
defendant was charged with offenses against the laws of the
United States under 18 U.S.C. §§ 922(a)(6), 924(a), and
922(g)(1). Our jurisdiction is premised on 28 U.S.C. § 1291
(appeal from a final judgment of a district court) and 18 U.S.C.
§ 3742(a)(2) (appeal from a final sentence).
III. STANDARD OF REVIEW
A district court's application and interpretation
of the Sentencing Guidelines is subject to plenary review.
United States v. Mobley, 956 F.2d 450, 451-52 (3d Cir. 1992); see
United States v. Riviere,
924 F.2d 1289, 1304 (3d Cir. 1991)
(construction of § 3D1.2 is a legal issue subject to plenary
review). However, a determination of whether various offenses
are part of one overall scheme is essentially a factual issue
which we review under a clearly erroneous standard. United
States v. Cusumano,
943 F.2d 305, 313 (3d Cir. 1991), cert.
denied,
502 U.S. 1036,
112 S. Ct. 881 (1992) (citing United
States v. Ortiz,
878 F.2d 125, 126-27 (3d Cir. 1989). Finally,
when reviewing the appropriateness of a grouping, deference must
be given to the district court. United States v. Seligsohn,
981
F.2d 1418, 1426 (3d Cir. 1994), cert. denied, __ U.S. __, 115 S.
Ct. 1143 (1995) (citing United States v. Beard,
960 F.2d 965, 969
(11th Cir. 1992)).
IV. DISCUSSION
A. Groups of Closely Related Counts
Griswold maintains that the district court erred in its
application of the multiple count rules under § 3D1.2 of the
Sentencing Guidelines by concluding that the eight firearms
counts in the indictment made up five separate groups, instead of
one group, as the parties had earlier stipulated. Section 3D1.2
of the 1990 United States Sentencing Guidelines stated in
relevant part:
All counts involving substantially the same
harm shall be grouped together into a single
Group. Counts involved substantially the
same harm within the meaning of this rule:
. . . .
(b) When counts involve the same victim and
two or more acts or transactions
connected by a common criminal objective
or constituting part of a common scheme
or plan.
(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.
U.S.S.G. § 3D1.2(b)-(d) (1990). Griswold argues that § 3D1.2(b),
(c) and (d) each require grouping of the eight firearms offenses
into a single group.
1. U.S.S.G. § 3D1.2(b)
Griswold asserts that the initial inquiry under §
3D1.2(b) is whether the counts involve the same victim. In the
commentary to § 3D1.2, application note 2 indicates that, "[f]or
offenses in which there are no identifiable victims (e.g., drug
or immigration offenses, where society at large is the victim),
the `victim' for purposes of subsections (a) and (b) is the
societal interest that is harmed." U.S.S.G. § 3D1.2, comment,
n.2 (1993).5 Griswold concludes that the firearms offenses to
which he pleaded guilty harmed no specific person, but rather
offended society at large. He notes that 18 U.S.C. § 922(a)(6)
(making false statements to a dealer in connection with the
acquisition of firearms) and 18 U.S.C. § 922(g)(1) (unlawful
possession of firearms by a previously convicted felon) are part
of a comprehensive scheme to promote the societal interest in
combatting the criminal use of firearms by deterring sales to
5
. As noted earlier, both parties concede and the district court
agreed that the 1990 version of the sentencing guidelines should
be applied in calculating Griswold's sentence. However, as noted
in § 1B1.11 of the sentencing guidelines, "if a court applies an
earlier edition of the Guidelines Manual, the court shall
consider subsequent amendments, to the extent that such
amendments are clarifying rather than substantive changes."
U.S.S.G. § 1B1.11 (1993). Although the commentary and
application notes from 1990 and 1993 are substantially similar,
we will refer to the 1993 commentary and application notes when
it is instructive to do so.
specified classes of persons, including convicted felons.
Griswold next argues that because the societal interests
underlying both laws are similar and because society is the
victim, all of the offenses must be grouped together.
In support of his argument that § 3D1.2(b) requires all
these offenses to be grouped into a single group, Griswold cites
United States v. Riviere, 924 F.2d 1289 (3d Cir. 1991). In that
case, we were faced with the question of proper grouping as to
three firearms-related counts which arose from the same incident
or conduct: possession of a firearm by a convicted felon,
illegal delivery of the same firearm, and the possession of the
firearm with an obliterated serial number.
Id. at 1303. In
deciding whether these offenses should be grouped, this court
referred to the commentary to § 3D1.2(d) of the 1990 sentencing
guidelines which provided that sentence enhancement should not
result from multiple counts unless they represent additional
conduct.
Id. at 1305. We concluded that because no additional
conduct was represented by the additional counts, it was
appropriate to group all of the firearms-related offenses.
Id.
at 1306.
Unlike the situation present in Riviere, Griswold's
multiple counts encompassed numerous instances of illegal conduct
-- purchases and possession of eight semi-automatic handguns
spanning in excess of two years. We remain unconvinced that the
Sentencing Commission contemplated grouping these offenses. To
do so would reward Griswold, who made discrete purchases of
firearms over a substantial period of time, by punishing him the
same as an offender who made one purchase.
Furthermore, in analyzing "the societal interest that
is harmed," we find application note 4 to be instructive:
Subsection (b) provides that counts that are
part of a single course of conduct with a
single criminal objective and represent
essentially one composite harm to the same
victim are to be grouped together, even if
they constitute legally distinct offenses
occurring at different times. This provision
does not authorize the grouping of offenses
that cannot be considered to represent
essentially one composite harm (e.g., robbery
of the same victim on different occasions
involves multiple, separate instances of fear
and risk of harm, not one composite harm) . .
. . The defendant is convicted of two counts
of rape for raping the same person on
different days. The counts are not to be
grouped together.
U.S.S.G. § 3D1.2, comment, n.4 (1993) (emphasis in original).
The Sentencing Commission, in its wisdom, saw fit to decide that
multiple counts of rape or robbery not be grouped together when
dealing with the same victim. Because each time Griswold
illegally acquired a firearm there was a separate and distinct
fear and risk of harm to society, we hold that his illegal
purchase of firearms on multiple occasions should not be grouped
together.
2. U.S.S.G. § 3D1.2(c)
Next, Griswold argues that even assuming arguendo the
offenses should not be grouped under § 3D1.2(b), they should be
grouped under § 3D1.2(c). Griswold notes that his status as a
previously convicted felon is an essential element of the offense
of possession of a firearm by a previously convicted felon and a
factor in setting the base offense level of the counts involving
false statements in connection with the acquisition of a firearm.
He concludes that the counts should be grouped as one because
"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." (quoting U.S.S.G. §
3D1.2(c) (1990)). However, as noted by the probation office, no
conduct embodied in one of the counts is used as a specific
offense characteristic in the determination of the offense level
for another count. Griswold's status as a convicted felon is
implicated in establishing the base offense level for each
offense. However, no separate conduct by Griswold resulted in
double counting. Further, where there was some overlapping of
counts, i.e., where the firearms involved in the count charging
the defendant with illegal possession of the firearms (count
eight) were also involved in counts charging false statements
(counts six and seven), the court did group those counts
together.
3. U.S.S.G. § 3D1.2(d)
Last, Griswold contends that all of the offenses should
be grouped together pursuant to § 3D1.2(d). He asserts that the
firearms offenses were "ongoing and continuous" because they were
part of the same criminal plan, and they all involved his felon
status as an essential element. He refers to the commentary of §
3D1.2(d) which states that "firearm offenses" are among those to
be grouped together and points to an example which provides
grouping for a "defendant [who] is convicted of three counts of
unlicensed dealing in firearms." U.S.S.G. § 3D1.2, comment, n.6
(1993). Griswold maintains that the multiple counts of §
922(a)(6) and § 924(a) (making false statements in connection
with acquisition of a firearm) to which he pled guilty should be
grouped together just as "three counts of unlicensed dealing in
firearms" would be grouped together pursuant to §3D1.2(d).
We note that the guideline stipulated to in the instant
case, § 2K2.1 (1990),6 does not provide for multiple violations,
nor does it provide a means of accounting for more than one
firearm. In contrast, § 2K2.2 (1990),7 which is specifically
delineated as an offense that should group pursuant to subsection
(d), makes provisions for incremental increases in offense levels
based upon the number of firearms involved. It is to § 2K2.2
that the commentary speaks when it states that "most . . .
firearms offenses, and other crimes where the guidelines are
based primarily on quantity or contemplate continuing behavior
are to be grouped together." U.S.S.G. § 3D1.2, comment, n.6
(1990). A defendant convicted of three counts of unlicensed
dealing in firearms (conduct covered by U.S.S.G. § 2K2.2) has
6
. Section 2K2.1 of the 1990 U.S.S.G. deals with the "Unlawful
Receipt, Possession, or Transportation of Firearms or
Ammunition."
7
. Section 2K2.2 of the 1990 U.S.S.G. deals with "Unlawful
Trafficking and Other Prohibited Transactions Involving
Firearms."
necessarily been punished in relation to the number of weapons
involved, and thus grouping of the offenses would be appropriate.
Because the guideline applicable in Griswold's case is U.S.S.G. §
2K2.1, and not § 2K2.2, the underlying offense is not a crime
that must be grouped pursuant to § 3D1.2(d). Stated differently,
multiple counts of illegal acquisition of a firearm (punishable
under § 2K2.1) need not be grouped simply because "three counts
of unlicensed dealing in firearms" (punishable pursuant to §
2K2.2) must be grouped pursuant to § 3D1.2(d).8
B. Government's Failure to Adhere to Plea Agreement
As an ancillary argument to his claim that the district
court erred in failing to group the firearms offenses into one
group, Griswold contends that "the government made what was at
best a lukewarm endorsement of the stipulation it made as part of
the plea agreement."9 Griswold cites United States v. Badaracco,
8
. In the 1991 guidelines version and henceforth, the Sentencing
Commission consolidated the 1990 version of U.S.S.G. §§ 2K2.1,
2K2.2, and 2K2.3 into the newly constructed § 2K2.1. At the same
time, although U.S.S.G. § 2K2.1 was not previously specifically
designated as an offense subject to grouping pursuant to §
3D1.2(d) in the 1990 guidelines, in the 1991 and later guidelines
versions it was so specifically designated. Thus, while
Griswold's offenses should not be grouped pursuant to § 3D1.2(d)
(1990), under § 3D1.2(d) (1993) the offenses must be grouped
together. However, even if Griswold's offenses were grouped
under the 1993 version, his sentence would still be more than if
he was sentenced, but not grouped, under the 1990 version. We
will assume that given the choice, Griswold would still opt to be
sentenced under the 1990 guidelines.
9
. Griswold points to the following portion of the sentencing
hearing to illustrate that the government did not fulfill its
obligations under the plea agreement:
(..continued)
Mr. Becker: [T]here was a guilty plea reached
in writing where both parties, the
Government and Mr. Griswold, agreed
that Counts 1 through 8 of the
indictment constitute a single
group for purposes of application
of this rule.
. . . .
AUSA Winter: Your Honor, the Government does
have to concede that both counsel
and I may have been in error in our
stipulation as to the grouping.
However, at the same time, the
Government recognizes that we did
the stipulation with the defendant
and to some degree, if there is
support -- albeit, a generous
interpretation of that support --
if there is support for that
interpretation, I believe the Court
would be within its bounds to find
the offense level in accord with
the stipulation.
I say that because I don't think
that the Probation Department is
wrong in their grouping and I don't
wish to suggest that they are. But
at the same time, the Government
recognizes that groupings are a
factor that are usually best left
to the discretion of the trial
court, who makes factual
determinations and that there is, I
guess, some room for -- for
movement or some room for
interpretation on how those are
grouped.
I am in accord with the defense
that there is an Eastern District
of Pennsylvania opinion that does
lend support to his argument,
Pellowitz. There is a distinction
in that case from the instant case,
that is, it involved a dealer of
firearms, which involved a
954 F.2d 928 (3d Cir. 1992), for the proposition that the
government is not permitted to make statements that effectively
undermine guidelines stipulations it enters under U.S.S.G. §
6B1.4 as part of a plea agreement. In that case, the government
stipulated that the defendant's conduct did not involve more than
minimal planning. The probation office, however, found that the
defendant's offense did involve more than minimal planning and
recommended a two point enhancement in the base offense level, to
which the district court agreed.
Id. at 938-39. On appeal, the
defendant argued that statements made by the government at
(..continued)
different guidelines section and,
in fact, one that is specifically
included in 3D1.2 Group D for
grouping, whereas the guideline in
this offense was not specifically
included in Section D of 3D1.2.
I guess I don't want to -- I guess
I'm trying to be very frank with
the Court, because I am requesting
an upward departure of the
defendant and the Government does
not wish to seem unseemly and seize
upon any opportunity to justify a
higher level by first agreeing to
stipulate with the defendant and
then turn around and say, you know
what, I was wrong and you're -- and
you're stuck with a higher
guidelines level and I'm going to
upwardly depart. I -- I want to be
fair to the defendant and in -- in
bending over backwards to be fair
and giving a very generous
interpretation to this, I think the
Court could find all of the
grouping.
App. at 26-28 (emphasis added).
sentencing were violative of the plea agreement because the
government's conduct was inconsistent with what he understood
when entering the plea of guilty. Id. at 939. We concluded
that:
The comment by the attorney for the
government that "there was an affirmative
step taken by [the defendant] indicating that
he was concealing something" provided the
district court with a basis to reject the
government's stipulation in its plea
agreement and to adopt the probation
department's recommendation that there was
more than minimal planning by [the
defendant]. We therefore agree with [the
defendant] that the government violated the
spirit, if not the letter, of the plea
agreement.
Id. at 940 (footnote omitted).
In the case before us, the government was not trying to
urge the district court to adopt the recommendation of the
probation office. Quite the contrary, the government was simply
pointing up to the court an obvious conflict which existed
between the plea agreement and the probation report, and
explaining to the court why it would be "within its bounds to
find the offense level in accord with the stipulation" in the
plea agreement. Because we conclude that Badaracco is
distinguishable and we find that the government's conduct at
sentencing was not inconsistent with the terms of the plea
agreement, we will not remand this case for resentencing.
Additionally, Griswold argues that the government on
appeal has totally repudiated the stipulation upon which he
relied in entering the plea agreement. However, we note that the
plea agreement specifically provided that, "[n]othing in this
agreement shall limit the government in its comments in, and
responses to, any post-sentencing matters." App. at 18. Thus,
the government did not act contrary to the plea agreement when,
on appeal, it argued that the district court did not err in
grouping the offenses into five separate groups.10
C. The "One Book Rule"
As part of the calculation of Griswold's sentence, the
district court granted the two-level reduction for acceptance of
responsibility available under the 1990 guidelines. See U.S.S.G.
§ 3E1.1(a) (1990). Griswold now argues that the district court
erred because it did not grant him a three-level downward
adjustment -- the maximum reduction available for acceptance of
responsibility under the 1993 version of the guidelines. Section
1B1.11 of the United States Sentencing Guidelines states in
relevant part:
10
. Additionally, the government reserved its right to argue
contrary to the stipulation on appeal:
AUSA Winter: Your honor, I just want to note for
the record that by conceding that
the defense's argument on the
grouping issue had some merit, the
Government is not waiving its right
to argue subsequently on appeal,
that your Honor was not in error by
grouping as you did. I simply
wanted to state that for the
record.
App. at 119.
(a) The court shall use the Guidelines
Manual in effect on the date that
the defendant is sentenced.
(b)(1) If the court determines that use of
the Guidelines Manual in effect on the date
that the defendant is sentenced would violate
the ex post facto clause of the United States
Constitution, the court shall use the
Guidelines Manual in effect on the date that
the offense of conviction was committed.
(2) The Guidelines Manual in effect on a
particular date shall be applied in its
entirety. The court shall not apply, for
example, one guideline section from one
edition of the Guidelines Manual and another
guideline section from a different edition of
the Guidelines Manual. However, if a court
applies an earlier edition of the Guidelines
Manual, the court shall consider subsequent
amendments, to the extent that such
amendments are clarifying rather than
substantive changes.
U.S.S.G. § 1B1.11 (1993). Thus, Griswold maintains that the
district court violated the mandate of § 1B1.11(a) which requires
application of the 1993 guidelines. However, because the use of
the § 2K2.1 would violate the ex post facto clause, the district
court applied the 1990 guidelines and then chose to follow §
1B1.11(b)(2) when calculating the number of points for acceptance
of responsibility under § 3E1.1.11
The question before the court is whether § 1B1.11(b)(2)
(the "one book rule") supersedes § 1B1.11(a) (use guidelines
effective on the date of sentencing) when the court is forced
11
. As indicated above, § 1B1.11(b)(2) requires that only one
guideline manual should be applied to any given sentencing. This
rule has become known in sentencing guidelines parlance as the
"one book rule."
because of ex post facto reasons to use an earlier version of the
guidelines. Quite recently, in United States v. Corrado, __ F.3d
__, No. 93-2086, 1995 WL 262608 (3d Cir. May 8, 1995), we had the
opportunity to decide this very issue. In adopting the "one book
rule" and bringing the Court of Appeals for the Third Circuit in
conformity with the majority of other courts of appeals, we held:
[§ 1B1.11(b)(2)] expressly prohibits district
courts from doing precisely what [the
defendant] suggests the district court here
should have done -- namely, to mix and match
provisions from different versions of the
guidelines in order to tailor a more
favorable sentence. Because of its
prohibitive nature, as well as the fact that
we believe applying various provisions taken
from different versions of the guidelines
would upset the coherency and balance the
Sentencing Commission obviously intended in
promulgating the guidelines, we conclude that
section § 1B1.11(b)(2) is binding and, as
such, was properly followed by the district
court in this case.
Corrado, 1994 WL 262608, at *2 (citation omitted). Because
Corrado is directly on point, we will affirm the district court's
application of the "one book rule."
V. CONCLUSION
We conclude that the district court did not err in
applying and interpreting the Sentencing Guidelines, and we will
affirm the sentence of Griswold in all respects.
