1. In General.—For purposes of sentencing multiple counts of conviction, counts can be (A) contained in the same indictment or information; or (B) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding.

2. Application of Subsection (e).—Subsection (e)(1) applies if a statute (A) specifies a term of imprisonment to be imposed; and (B) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment. See, e.g., 18 U.S.C. § 924(c) (requiring mandatory minimum terms of imprisonment, based on the conduct involved, to run consecutively). The multiple count rules set out under this guideline do not apply to a count of conviction covered by subsection (e). However, a count covered by subsection (e)(1) may affect the offense level determination for other counts. For example, a defendant is convicted of one count of bank robbery (18 U.S.C. § 2113), and one count of use of a firearm in the commission of a crime of violence (18 U.S.C. § 924(c)). The two counts are not grouped together pursuant to this guideline, and, to avoid unwarranted double counting, the offense level for the bank robbery count under §2B3.1 (Robbery) is computed without application of the enhancement for weapon possession or use as otherwise required by subsection (b)(2) of that guideline. Pursuant to 18 U.S.C. § 924(c), the mandatory minimum five-year sentence on the weapon-use count runs consecutively to the guideline sentence imposed on the bank robbery count. See §5G1.2(a).

Unless specifically instructed, subsection (e)(1) does not apply when imposing a sentence under a statute that requires the imposition of a consecutive term of imprisonment only if a term of imprisonment is imposed (i.e., the statute does not otherwise require a term of imprisonment to be imposed). See, e.g., 18 U.S.C. § 3146 (Penalty for failure to appear); 18 U.S.C. § 924(a)(4) (regarding penalty for 18 U.S.C. § 922(q) (possession or discharge of a firearm in a school zone)); 18 U.S.C. § 1791(c) (penalty for providing or possessing a controlled substance in prison). Accordingly, the multiple count rules set out under this part do apply to a count of conviction under this type of statute.

3. Rules for Determining a Single Offense Level.—Subsections (a) through (c) set forth the rules for determining a single offense level in cases involving multiple counts of conviction, and subsection (d) instructs to use the highest resulting offense level. In most cases, the single offense level applicable to all counts can be determined by applying only one subsection in this guideline. In some cases, the application of two subsections will be necessary to determine the single offense level applicable to all counts. In rare cases, the application of all three subsections will be necessary to determine the single offense level applicable to all counts. The following examples illustrate the interaction of the rules set forth in this guideline.

(A) Cases Involving Subsections (a), (c), and (d).—Defendant A is convicted of two counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count of tax evasion, in violation of 26 U.S.C. § 7201. The guideline that applies to the wire fraud counts is §2B1.1, while the guideline that applies to the tax evasion is §2T1.1. Although both guidelines are specifically listed in subsection (a), the rule set forth in subsection (a) is only used to determine a single offense level for the multiple counts to which the same guideline applies (i.e., wire fraud counts). Therefore, the offense level for the wire fraud counts is determined by using the combined behavior. Subsection (c) would then apply to the remaining tax evasion count, and the offense level applicable to this count will be calculated separately. Subsection (d) is used to determine the single offense level for all three counts. Defendant A’s offense level will be the greater of the offense levels determined above: the offense level based on the combined behavior calculated for the two counts of wire fraud or the offense level calculated for the tax evasion count.

(B) Cases Involving Subsections (b), (c), and (d).—Defendant B is convicted of two counts of impeding a federal officer (each count involving a different federal officer), in violation of 18 U.S.C. § 111(a), and one count of burglary of a post office, in violation of 18 U.S.C. § 2115. The guideline that applies to the two counts of impeding a federal officer is §2A2.4, while the guideline that applies to the burglary count is §2B2.1. Although both guidelines are specifically listed in subsection (b), the rule set forth in subsection (b) is only used to determine a single offense level for the multiple counts to which the same guideline applies (i.e., the counts of impeding a federal officer). Under subsection (b), each count of impeding a federal officer is calculated separately. Because subsection (b) applies to two counts, two levels are added to the count of impeding a federal officer that results in the highest offense level. Subsection (c) would apply to the remaining burglary count, and the offense level applicable for this count will be calculated separately. Subsection (d) is then used to determine the single offense level for all three counts, which will be the greater of the offense levels determined above: the offense level based under subsection (b) for the counts of impeding a federal officer or the offense level calculated for the burglary count under subsection (c).

(C) Cases Involving Subsections (a), (b), and (d).—Defendant C is convicted of two counts of distribution of child pornography, in violation of 18 U.S.C. § 2252A, and three counts of sexual exploitation of a minor (each count involving a different minor), in violation of 18 U.S.C. § 2251(a). Subsection (a) is to be used to determine the single offense level for the two counts of child pornography distribution because §2G2.2, a guideline specifically listed in subsection (a), applies to both counts. The offense level for both counts is determined by using “the combined offense behavior taken as a whole.” Subsection (b) is to be used to determine the single offense level for the three sexual exploitation counts because §2G2.1, a guideline specifically listed in subsection (b), applies to these counts. Each sexual exploitation count is calculated separately, and three levels are added under subsection (b)(2)(B) (because there are three counts) to the count of sexual exploitation that results in the highest offense level. Subsection (d) is then used to determine the single offense level applicable to all five counts, which will be the greater of the offense level determined under subsection (a) for the two counts of child pornography distribution or the offense level determined under subsection (b) for the three counts of sexual exploitation.

4. Counts Involving Different Victims or the Same Victim on Different Occasions.—To prevent double counting of offense behavior, subsection (b)(1)(C) requires that the counts involve different victims or the same victim on different occasions. For example, a defendant convicted of two counts of robbery of Victim A, where the robberies occurred several days apart, would be subject to a multiple count adjustment under subsection (b). On the other hand, a defendant convicted of two counts of robbery of Victim A, where one count charges conspiracy or solicitation to commit robbery and the other charges the substantive robbery, would not be subject to a multiple count adjustment under subsection (b) because the counts involve the same victim on the same occasion.

5. Interaction with §1B1.5(c).—Subsection (c) of §1B1.5 (Interpretation of References to Other Offense Guidelines) provides (with certain exceptions) that, in the case of a cross reference or other reference to use an entire Chapter Two guideline, this guideline applies based on the referenced offense guideline, not the offense guideline containing the reference. The following examples illustrate the circumstances where this instruction would apply.

(A) Cross References.—Defendant A is convicted of one count of distribution of child pornography, in violation of 18 U.S.C. § 2252A, and one count of sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a). Distribution of child pornography is referenced in Appendix A (Statutory Index) to §2G2.2, while sexual exploitation of a minor is referenced to §2G2.1. However, §2G2.2 contains a cross reference to §2G2.1 for certain cases. If the cross reference at §2G2.2(c) applies to the count of distribution of child pornography based on a different victim or the same victim on a different occasion, subsection (b) is to be used to determine the single offense level for both counts because the same guideline (§2G2.1), a guideline specifically listed in subsection (b), is applicable to the counts.

(B) Other References.—Defendant B is convicted of one count of Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and one count of conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371. The Hobbs Act robbery is referenced in Appendix A (Statutory Index) to §2B3.1, while conspiracy to commit bank robbery is referenced to §2X1.1. Section 2X1.1(a) requires the offense level to be determined by applying the base offense level and adjustments from the guideline for the underlying substantive offense, which is §2B3.1 in this case. If the counts involve different victims or the same victim on different occasions, subsection (b) is to be used to determine the single offense level for both counts because the same guideline (§2B3.1), a guideline specifically listed in subsection (b), is applicable to the counts.

(C) Exception.—Defendant C is convicted of money laundering, in violation of 18 U.S.C. § 1956, and one count of conspiracy to commit murder, in violation of 18 U.S.C. § 1117. Defendant C laundered proceeds that were wired to him as advanced payment for murder, which never took place. Money laundering is referenced in Appendix A (Statutory Index) to §2S1.1, while conspiracy to commit murder is referenced to §2A5.1. For the money laundering count, §2S1.1(a)(1) instructs to determine the offense level for the underlying offense from which the laundered funds were derived. Therefore, the base offense level for the money laundering count is determined by applying §2A1.5, the guideline applicable to the conspiracy to commit murder. Although the offense level for both counts is calculated by applying §2A1.5 (a guideline listed in subsection (b)), subsection (b) cannot be used to determine the single offense level for the counts because of a special instruction included in the Commentary to §2S1.1. This instruction provides that “[n]otwithstanding §1B1.5(c), . . . application of any Chapter Three adjustment shall be determined based on the offense covered by this guideline (i.e., the laundering of criminally derived funds) and not on the underlying offense from which the laundered funds were derived.” Consequently, for purposes of subsection (b), two different guidelines (§2S1.1 and §2A1.5) apply to the counts.