United States of America, Appellee-Cross-Appellant v. Jeffrey A. Johnson, Appellant-Cross-AppelleeUnited States of America, Appellee-Cross-Appellant v. Jeffrey A. Johnson, Appellant-Cross-Appellee
Jeffrey Johnson appeals from the 88-month sentence imposed by then-Chief Judge McAvoy following a guilty plea to numerous crimes of a sexual nature involving minors. Appellant argues that his sentence must be modified for a number of reasons, including prosecutorial vindictiveness that allegedly caused a substantial change in the government’s position well into the sentencing proceedings. The government cross-appeals from certain aspects of the district court’s grouping of the various counts to which appellant pleaded guilty.
We decline to entertain the cross-appeal. The arguments raised in the cross-appeal are at odds with the government’s initial position with regard to the proper Guidelines range. They were raised only belatedly in the district court, without a showing of good cause, and then in the context of an erosion of the government’s original and very different position. Given these and other matters described below, we believe that entertaining the cross-appeal might serve to deter defense counsel in similar circumstances from vigorously contesting the recommendations of a presen-tence report (“PSR”) and, in the exercise of our supervisory power over the administration of justice, we decline to do so. However, we affirm the sentence. The district court independently questioned certain aspects of the original PSR and sua sponte requested a revised PSR from the Probation Department. The sentence imposed was based on that revised PSR and the district court’s independent analysis of the proper enhancements and groupings contains no error harmful to appellant. We therefore affirm.
BACKGROUND
a) The Charges
A three-count indictment was returned against appellant on June 25, 1997. On April 24, 1998, he entered into a plea agreement and waived indictment, and a
Count one of the indictment charged аppellant with travel with the intent to engage in a sexual act with a minor, in violation of
Count three of the indictment charged appellant with knowingly transporting in interstate commerce a visual depiction of a minor engaging in sexually explicit conduct, in violation of
Counts one, two, and three of the information charged appellant with violating
Count four charged appellant with violation of
Counts five, six, seven, and eight charge appellant with violations of
Count nine charged appellant with violating
Finally, Count ten sought forfeiture of certain computer hardware used by appellant.
b) Sentencing Chronology
1) Initial PSRs — August 1998 to January 1999
On August 26, 1998, the Probation Department completed PSR # 1 using the 1997 U.S. Sentencing Guidelines Manual. PSR # 1 indicated that appellant was to be sentenced on September 16, 1998 and rec
PSR # 1 combined all counts to which appellant pleaded guilty into a single group pursuant to U.S. Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”) § 301.2(c).
1
PSR # 1 used count nine,
In the Northern District, objections to a PSR must be made within fourteen days.
See
N.D.N.Y. Local R.Crim. P. 32.1;
see also
The suggestion that the government might seek an upward departure led to a testy interchange between appellant’s counsel, William P. Fanciullo, and the prosecutor, Thomas Spina, Jr. Appellant’s counsel, apparently in exasperation at the suggestion of an upward departure, asked the prosecutor how much time he wanted appellant to serve. According to appellant’s counsel, the prosecutor responded, “I want him to die in jail.” Appellant’s counsel attests that he then asked whether he could “quote [the prosecutor] on that,” and the prosecutor responded, “go ahead.” The prosecutor then purрortedly made some reference to how appellant’s counsel would react if his daughter had been involved, and the two exchanged additional acrimonious words about whether appel
PSR # 2 was sent to the district court in October 1998 and sentencing was scheduled for November 13, 1998 but then rescheduled for January 21, 1999. In a sentencing memorandum dated December 28, 1998, appellant objected to PSR # 2 on numerous grounds. He argued principally that count nine was not the major count and that the cross-reference in Section 2G2.4(c)(2) did not apply because the mere receipt of child pornography does not constitute “trafficking.” He also argued that the pictures at issue did not involve SM conduct or other depictions of violence. Finally, he argued that: (i) certain calculations in PSR #2 violated the Ex Post Facto Clause of the Constitution because the conduct at issue occurred prior to certain amendments to the 1996 Guidelines; (ii) the pictures at issue did not involve prepubescent minors; (iii) adding two levels for the use of a computer constituted impermissible double counting because it was duplicative of the cross-reference; (iv) Sections 2G2.4(c)(2) and 2G2.2(b)(3) of the Guidelines are “impermissibly vague”; and (v) the rule of lenity should apply and various closely contested issues should be decided in appellant’s favor. In addition, appellant moved for a downward departure seeking leniency because of an extraordinary acceptance of responsibility and assistance, an excellent employment history, a lack of sophistication, and rehabilitation since the arrest.
In a sentencing memorandum dated December 30, 1998, the government responded to аppellant’s objections to the PSR and contended that an upward departure to a 120-month term of imprisonment was warranted because: (i) the Guidelines did not adequately take into consideration individuals like appellant who preyed on minors via the internet; (ii) appellant failed to take prophylactic measures when engaging in sexual acts with minors; (iii) appellant attempted to meet other minors; and (iv) appellant was benefitting from the grouping of the counts. However, the government expressly stated that the “grouping determination is not challenged,” and that the district court “should adopt the factual contents of [PSR #2] and its guideline calculations.”
In a letter dated January 6, 1999, appellant’s counsel complained that the “prosecution has gone overboard here and is painting an inaccurate and biased picture.” He also continued to press the claims that the trafficking cross-reference did not apply and that the pictures did not involve prepubescent minors or SM conduct. Finally, he urged the court to dеny the motion for an upward departure. In a letter dated January 14, 1999, the government reiterated the arguments for an upward departure and devoted significant attention to whether the SM enhancement should apply. In particular, the government contended that appellant’s sexology expert, Dr. Charles Moser, was not qualified to address the age of females in certain photographs or whether the images depicted SM conduct. Appellant responded on January 19, 1999, stating that “[i]n view of the many derogatory comments and personal insults directed at Dr. Moser ... [he] felt compelled to respond,” and attached a letter from Dr. Moser in which Dr. Moser complained that the government had “misrepresent[ed] my statements and [Mr. Spi-na’s] criticisms are fallacious.”
The next day, January 20, 1999, Dr. Moser contacted appellant’s counsel to advise him that a former literary agent with whom Dr. Moser had worked had complained that the government was intimidating her over a book about sadomasochism for which Dr. Moser had once had some
At the January 20, 1999 conference, the district court adjourned the sentencing scheduled for January 21, 1999 and ordered a hearing on the SM enhancement. The hearing was scheduled to take placе in early February 1999, and sentencing was rescheduled to March 1,1999.
2) The Government’s Change of Position and Subsequent PSRs
In a letter dated February 3, 1999, the government notified the court that “it does not appear that it will be necessary to conduct an evidentiary hearing as to the [SM] enhancement_[because t]he government now withdraws its support for the enhancement and recommends that it not be imposed in light of the facts and circumstances presented in this case.” The government later explained that the “primary reason the government withdrew its support for the [SM] enhancement [is] because there was only one photograph arguably depicting a minor in a sadistic pose.” More significantly, the government admitted as well that a study it had relied upon to support its endorsement of the SM enhancement “was called into question by the individual who conducted the study.”
Even though five months had passed since PSR # 1, the letter also argued that appellant’s offense level should be increased an additional five levels pursuant to U.S.S.G. § 2G2.2(b)(2) because the offense involved “distribution” 2 and that the grouping determination in PSR # 1-2 “may nоt have been proper here.” It acknowledged that the objections to PSR # 1-2 were not made within fourteen days of the disclosure of the PSR but reasoned that “inasmuch as sentencing has now been set for March 1, 1999 and the defendant has ample time to address these objections, the government asks this Court to consider the objections.”
In a letter dated February 19, 1999, appellant responded to the government’s new arguments. He argued that the government was procedurally barred from asserting additional objections to PSR # 1-2 and was engaged in prosecutorial vindictiveness. He also argued that the government’s new positions failed on the merits. Consequently, the district court
sua sponte
requested that the Probation Department submit a revised PSR and postponed sentencing to provide the parties with ample time to review the revised PSR and make objections.
See United States v. Johnson,
Nos. 97-CR-206, 98-CR-160,
Revised PSRs were issued on February 26, 1999 (hereinafter “PSR # 3”) and April 16, 1999 (hereinafter “PSR #4”). The parties’ objections to PSR # 3 were noted in PSR # 4, but its revisions did not alter any of the sentencing recommendations contained in PSR # 3. Thereafter, аppellant and the government wrote voluminous letters to the district court setting forth
Some of the correspondence from the prosecutor to the court employed quotations from internet chatroom conversations involving the appellant. Considerable license was taken by the prosecutor in editing some of these conversations. As presented to the district court, the government’s version of the conversations failed to indicate where editing had taken place, and it is fair to say that the editing appeared to strengthen the government’s position. However, the editing appears not to have affected the sentence ultimately imposed. Nevertheless, we expressly note our disapproval of this practice.
Before turning to the sentence imposed by the district court, we summarize the revised sentencing calculations contained in PSR # 3-4, which adopted almost wholesale the government’s newly assеrted positions. Unlike PSR # 1-2, which put all counts in a single group, PSR # 3-4 recommended five groupings: (i) group one — count one of the indictment and counts one, two, three, four, and nine of the information; (ii) group two — counts five and six of the information; (iii) group three — count three of the indictment; (iv) group four — count seven of the information; and (v) group five — count eight of the information.
Offense levels for the various groups were calculated as follows. The highest offense level for group one was for count nine, which, after applying the cross-reference in Section 2G2.4(c)(2), provided a base offense level of 17. Added to that were two levels for pictures of prepubescent minors engaged in sexually explicit conduct, five levels for distribution, five levels for a pattern of sexual exploitation of a minor, and two levels for use of a computer, for a total offense level of 31. See U.S.S.G. § 2G2.2(b). The highest offense level of the counts in group two was for count five, which has a base offense level of 17. The same increases used in group one were used in group two, resulting in a total offense level of 31. As to group three, count three provides a base level of 17, plus a five-level increase for distribution, a five-level increase for a pattern of activity involving the sexual exploitation of a minor, and a two-level increase for the use of a computer, resulting in a total offense level of 29. Group four also had a base offense level of 17 and PSR # 3-4 added the same enhancements used in groups one and two for a total offense level of 31. Finally, group five was based on count eight and entailed identical calculations to those used in groups one, two, and four for a total offense level of 31.
As to the combined offense level for the various groups pursuant to Section 3D1.4,
3
PSR # 3-4 calculated a total of five units (one for each group), which calls for an increase of four levels.
See
U.S.S.G. § 3D1.4(a). Adding four levels to 31, the combined offense level in PSR # 3-4 was 35, less three levels for acceptance of responsibility and prompt notification of intent to plead guilty, for a totаl offense level of 32. The Guidelines range for that
c) Ultimate Sentence
As noted, appellant had objected to much of PSR # 3-4, in addition to arguing that the prosecution’s new position was vindictive and untimely. At sentencing, the district court addressed four of appellant’s major objections relevant to this appeal: (i) the timeliness of the government’s change of position; (ii) whether appellant engaged in distribution; (iii) which counts should be grouped and the propriety of adding distribution and pattern enhancements where the distribution predated the pattern; and (iv) whether using the 1997 Guidelines for all counts violated the Ex Post Facto Clause.
See United States v. Johnson,
1)Procedural Bar
The district court rejected appellant’s argument that it should disregard the government’s untimely objections to PSR # 1-2 on several grounds. First, it relied upon
2) Distribution Enhancement
The district court also rejected appellant’s arguments concerning the distribution enhancement. It concluded that the positions advanced by appellant were “foreclosed” based on
United States v. Lorge,
3) Grouping and Pattern Enhancement
The district court next addressed the grouping issues and appellant’s objection to the groups used in PSR # 3-4. Appellant argued that if distribution were added as a specific offense characteristic, then all of the transmit/transport counts (count three of the indictment and counts five, six, seven, and eight of the information) could not be separate groups pursuant to U.S.S.G. § 3D1.2(c). See
supra
note 1. The court concluded that the issue hinged on determining the harm caused by appellant’s conduct.
See
U.S.S.G. § 3D1.2 (providing that “[a]ll counts involving substantially the same harm shall be grouped together into a single Group”). Noting that “[m]ost circuits agree that children are the victims of these sex crimes and, therefore, ... it is inappropriate to group
As to the pattern enhancement, the district court determined that PSR # 4 prоperly grouped count one of the indictment with counts one, two, three, four, and nine of the information and that it properly added a five-level enhancement to that group for a pattern of sexual abuse or exploitation of a minor. The district court decided, however, that the remaining counts involved transportation or distribution of child pornography and not efforts to engage in sexual conduct with a minor. Thus, the district court reasoned, the counts did not involve substantially the same harm and should be treated separately. Because the pattern enhancement ted already been applied to group one, however, the court decided that the remaining groups should not include the enhancement to avoid double counting. See id. at *8-9.
The district court rejected appellant’s argument that he should not receive a five-level enhancement for a pattern of conduct involving the sexual abuse or exploitation of a minor for those counts that predated his actual sexual encounters with juvenile females. The district court noted that the application notes to Section 2G2.2 make it clear “that it is irrelevant whether the abuse or exploitation occurred during the course of the offense .... [meaning] that it could have occurred prior to or after the offense conduct.” Id. at *9.
4) Ex Post Facto Issues
The district court agreed with appellant that using the 1997 Guidelines for certain conduct that occurred prior to November 1, 1996, violated the Ex Post Facto Clause because the base level for the sex offenses at issue was raised from 15 to 17 when the Guidelines were amended in November 1996. Noting the “possibility that the one-book rule might not be fully applicable to sentences based on multiple counts,”
id.
at *10 (quoting
United States v. Santopietro,
5) Sentencing Calculation
Based on its resolution of the above objectiоns and issues, the district court combined the counts into the following
As to group one, the district court agreed that count nine provided the highest offense level and that the trafficking cross-reference applied.
Id.
at *11 and *11 n. 3 (relying on
United States v. Canada,
Group two consisted of three- counts with identical underlying conduct and each count in the group therefore provided an identical base level of 15 (using the 1995 Guidelines). Added to the base level was two for a prepubeseent-victim enhancement and five for a distribution enhancement, for a total offense level of 22. No computer-use enhancement was appropriate under the 1995 Guidelines, and no pattern enhancement was applied because appellant had already received an enhancement for a pattern in group one. See id. at *11.
Group three consisted solely of indictment count three and the offense level was calculated as follows: base level 17, plus two for use of computer, for a total offense level of 19. No distribution or pattern enhancements were applied because the district court determined that to do so would constitute impermissible double counting. See id.
Group four сonsisted solely of information count eight and conduct that occurred in December 1995. Applying the 1995 Guidelines, the offense level was calculated as follows: base level 15, plus two for a prepubescent-victim, plus five for distribution, for a total offense level of 22.
The district court determined the combined offense level to be 31 because, utilizing the table from Section 3D1.4, there was only one unit corresponding to a zero-level increase. That combined offense level was adjusted to a final offense level of 28 after subtracting three levels for acceptance of responsibility and timely notification of intent to plead guilty. The applicable Guidelines range for this offense level was 78 to 97 months. The court sentenced appellant to 88 months of imprisonment. See id. at *12. Although the district court “recognize[d] full well that it ha[d] the ability, discretion to depart upward or downward as requested by the Government and the defendant,” it declined to do so because it did not “believe that an upward or downward departure is appropriate under the circumstances of this case.”
Finally, with regard to appellant’s claim of vindictiveness, the district court stated:
I don’t know if I made this clear or not, but the Court is gonna make a finding that there was not prosecutorial misconduct involved in the case. Although a lot of things got done and redone, a lot of the problems were caused by the Court’s own waffling, so to speak....
The appeal and cross-appeal followed.
DISCUSSION
Appellant contends that his sentence must be vacated , for several reasons. First, he contends that the government engaged in vindictiveness and/or misconduct and was procedurally barred from raising untimely objections to the original PSR. On the merits of the sentence im
In its cross-appeal, the government argues that the district court erred in declining to impose a pattern enhancement as to each of the groups of offenses for which the offense level was determined based on Section 2G2.2. It also argues that the district court erred by grouping count seven of the information with counts five and six.
In assessing these claims and reviewing the sentence imposed by the district court, we review
de novo
the court’s legal determinations.
See United States v. Kinney,
a) The Conduct of the Prosecution
Appellant argues that the sentencing proceedings subsequent to the preparation of PSR # 2 were tainted by the vindictive conduct of the prosecutor. In his view, he must therefore be sentenced on the basis of PSR #2.
“Actual vindictiveness must play no part in a prosecutorial or sentencing decision and, since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of his rights, the appearance of vindictiveness must also be avoided.”
United States v. Johnson,
In the present case, the only matter that may have been tainted—or might appear to have bеen tainted—by the conduct of the prosecution is the bringing of the cross-appeal. In sentencing appellant, the district court independently questioned the groupings and lack of distribution enhancement in PSR # 1-2 and
sua sponte
requested that a revised PSR be prepared.
See Johnson,
However, the government has chosen to take a cross-appeal and has thereby forced the issue of its conduct on us. To find “actual vindictiveness requires ‘direct’ evidence, such as evidence of a statement by the prosecutor, which is available ‘only in a rare case.’”
Johnson,
The district court concluded that there was not “prosecutorial misconduct” in this case, which we take as a finding of no actual vindictiveness in the proceedings prior to the cross-appeal. However, we need not review this finding, because, whether or not there was actual vindictiveness in the proceedings before, or in the bringing of, the cross-appeal, we must in the exercise of our supervisory power decline to entertain it given the appearance created by the circumstances here.
In its sentencing decision, the district court noted that
The cross-appeal argues that the pattern enhancement should be imposed for each group of offenses as determined by the district court and that count seven of the information shоuld not have been grouped with counts five and six. However, the objection to the grouping of count seven of the information with counts five and six is clearly inconsistent with the government’s pre-February-1999 position that a single group was appropriate. Because the claim for multiple pattern enhancements depends upon the existence of multiple groups, it too is inconsistent with the government’s pre-February-1999 position.
PSR # 1 was issued in late August 1998. As described in detail above, the government affirmatively stated that it had no objection to PSR # 1-2’s recommendation of a single grouping and overall Guidelines’ calculations. It was only after the parties had expended much time, expense, and effort in contesting appellant’s objections to PSR # 1-2 and in wrangling acrimoniously, and after the government’s case for the SM enhancement had collapsed, that the government’s objections to the single grouping were raised.
The government contends that its delay in challenging the single grouping occurred because it had “only recently discovered case lаw supporting” its newly adopted position. While the caselaw may have been recently discovered, it was not new.
5
The principal cases relied upon by the government in its February 1999 letter had been decided by 1997. There is no doubt, therefore, that the government could have raised its grouping arguments in response to PSR # 1, and, there being no other reason given for the delay, it can hardly be said that the government showed “good cause” for its belated objections to PSR # 1.
It is true that the government appears to have decided early on that a 120-month
“Guided by considerations of justice, and in the exercise of supervisory powers, federal courts may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress.”
United States v. Hasting,
A criminal defendant must have the right to contest the recommendations of a PSR agreed to by the government without fear that, if he or she experiences some success, the government will respond with a new and substantially different position with regard to Guidelines calculations and be able to force courts to entertain the new arguments.
See King,
In the present case, no good cause for the government’s change in position on the
Were we to entertain the cross-appeal and reverse, appellant would face an increase in sentence that would be correctly perceived as the result of his having challenged,
inter alia,
the SM enhancement. The cross-appeal challenges a sentence that is above—barely so but nevertheless above—the Guidelines range recommended in PSR # 1-2. Had appellant not challenged PSR # 1-2, he would have received at worst the 88 months imposed independently by the district court. That sentence itself indicates that the government’s original motion for an upward departure to a sentence of at least 120 months would have been denied, and that denial would not have been appealable by the government.
See United States v. Stephenson, 183 F.3d
110, 120 (2d Cir.) (holding that denial of downward departure motion is not appealable unless district court misapprehends its authority to depart),
cert. denied,
— U.S. -,
b) The Merits of the Ultimate Sentence
Appellant challenges several aspects of the district court’s sentence with respect to its calculations based on count nine of the information. Specifically with regard to count nine, appellant argues: (i) it is not the major count; (ii) it did not involve trafficking or distribution; (iii) even if it did involve trafficking and/or distribution, the Ex Post Facto Clause requires application of pre-amendment Guidelines; and (iv) because count nine has a sixty-month statutory maximum, appellant’s sentence cannot exceed sixty months. In addition, appellant contends that the district court’s sentence impermissibly double counts computer transmissions and computer use and that the pertinent Guidelines are unconstitutionally vague. Finally, he asserts that the rule of lenity requires resolution of any ambiguities in his favor. We reject each of those arguments.
1) Count Nine, Trafficking, and Distribution
We reject the contention that count nine—charging the possession of numerous computer graphic images depicting minors engaged in sexually explicit conduct in violation of
The district court concluded, as did each of the PSRs, that the cross-reference in Section 2G2.4(c)(2) applied to appellant’s possession offense because his offense involved “trafficking.”
See Johnson,
Moreover, “exchange or barter is a form of ‘trafficking.’ ‘Traffic,’ like ‘trade,’ includes both ‘the business of buying and selling for money’ and ‘the business of exchanging commodities by barter....’”
United States v. Horn,
We likewise reject appellant’s contentions concerning the distribution enhancement.
See
U.S.S.G. § 2G2.2(b)(2). As discussed by the district court, appellant’s arguments are forеclosed by our decision in
United States v. Lorge,
Appellant’s additional contention that his sentence cannot exceed 60 months because count nine carries a 60-month statutory maximum sentence also lacks merit. Appellant pleaded guilty to eleven substantive counts in this case. Each of the counts, with the exception of count nine, carries a statutory maximum term of either 120 months or 180 months. The district court sentenced appellant to a term of 60 months imprisonment for count nine, and to a term of 88 months imprisonment for each of the remaining ten substantive counts. The district court stated that “[a]ll terms shall run concurrently.” However, the Guidelines provide as to “Sentencing on Multiple Counts of Conviction” that:
If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more ofthe other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects, sentences on all counts shall run concurrently, except to the extent otherwise required by law.
U.S.S.G. § 5G1.2(d). Therefore, even though the district court could have sentenced appellant to only a sixty-month term for count nine, that sixty-month sentence runs consecutively to the sentences imposed on the other counts to the extent necessary to achieve the total punishment of 88 months.
See United States v. Griffith,
2) Double Counting, Unconstitutional Vagueness, and Rule of Lenity
We also reject appellant’s arguments concerning alleged impermissible double counting. We do so for substantially the reasons articulated by the district court.
See Johnson,
Likewise, we reject appellant’s claim that “the laws and guidelines in this case are constitutionally deficient in that they are vague and do not give adequate notice of what is prohibited and the punishment that will ensue.” It is not clear whether the Guidelines are subject to attack on vagueness grounds.
See United States v. Wivell,
Finally, we reject appellant’s rule-of-lenity argument. Assuming that the rule of lenity applies to the Sentencing Guidelines (a question that we have not yet decided,
see United States v. Westcott,
We have considered appellant’s remaining arguments and find them to be without merit.
CONCLUSION
We therefore decline to entertain the cross-appeal and affirm the 88-month sentence.
Notes
. Section 3D1.2 provides in relevant part that "[a]ll 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.” U.S.S.G. § 3D1.2.
. Section 2G2.2(b)(2) provides that “[i]f the offense involved distribution, increase by the number of levels from the table in § 2F1.1 corresponding to the retail value of the material, but in no event by less than 5 levels.” U.S.S.G. § 2G2.2(b)(2).
. Section 3D1.4 provides that the "combined offense level is determined by taking the offense level applicable to the Group with the highest offense level and increasing that offense level by the amount indicated” in the table that appears in that section. U.S.S.G. § 3D1.4. Four levels are to be added to 3.5 to 5 units. See id. "In determining the number of Units”:
(a)Count as one Unit the Group with the highest offense level. Count one additional Unit for each Group that is equally serious or from 1 to 4 levels less serious.
(b) Count as one-half Unit any Group that is 5 to 8 levels less serious than the Group with the highest offense level.
(c) Disregard any Group that is 9 or more levels less serious than the Group with the highest offense level. Such Groups will not increase the applicable offense level but may provide a reason for sentencing at the higher end of the sentencing range for the applicable offense level.
Id. (bold in original).
. Section 3D 1.2 provides that counts should be grouped because they involve substantially the same harm ”[w]hen 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.” U.S.S.G. § 3D1.2(b) (emphasis added).
. In contrast, the distribution enhancement did find support in very recent caselaw. On February 2, 1999, the day before the government's change of position,
United States
v.
Lorge,
. At oral argument, we were told simply that any prosecutor in the Northern District would have done what was done here.