*1 party’s own cumstances external unconscionable en-

conduct—it would be period par- against

force the limitation Id. injustice

ty gross would result.” explained, previously

at 330. As Minter’s petition timely file his

failure

was not due to a circumstance external to Accordingly,

his own conduct. the district in determining

court abused its discretion equitable was entitled to toll- Minter

ing. petition time-

Because Minter’s

barred, judg- we vacate the district court’s in- entirety

ment in its and remand with petition

structions that Minter’s be dis-

missed as time-barred. AND REMANDED

VACATED WITH

INSTRUCTIONS America,

UNITED STATES

Plaintiff-Appellee,

Rory BARTLEY, Roy Bailey, a/k/a

Defendant-Appellant.

No. 98-4317. Appeals,

United States Court

Fourth Circuit.

Argued: June

Decided: Oct. *2 money. to launder On conspiracy

count of only his sen- Bartley challenges appeal, court erred tence. Because district offenses, Bartley’s but refusing to Bartley’s managerial in finding did not err conspiracy justified an enhance- role ment, part, part, affirm in reverse in we resentencing. for and vacate and remand I. par-

Edwin Bruce recruited marijuana distribution net- ticipate Charleston, Virginia. West work based Bartley to a number of Bruce introduced buyers, including street dealers. interested marijuana Bartley regularly distributed supply dealers from Bruce’s and these pur- made wire transfers California marijuana on Bruce’s behalf. chase Bartley eventually disaffiliated from marijuana sup- another Bruce and located plier, but he maintained his associations and at with some of Bruce’s street dealers Hamilton, Burgess, ARGUED: Kevin B. marijuana times obtained from Bruce’s Pollard, P.L.L.C., Burgess, Young & Oak Ultimately, Bartley expand- distributors. Hill, Virginia, Appellant. Louise West ed his activities to Par- distribution Crawford, Anna Office of the United kersburg, Virginia, West and directed one Charleston, Virgi- Attorney, West States identify of his street dealers to addresses nia, BRIEF: Rebecca Appellee. ON marijuana there to which could be mailed. Betts, Attorney, A. United John C. street dealers would distribute Bartley’s Parr, Attorney, Assistant United States marijuana pro- wire transfer the Charleston, Appellee. Virginia, West instruction, often to his ceeds on WILKINSON, Judge, Before Chief Bart- Pryce uncle Claudius New York. MOTZ, Judges. MICHAEL and Circuit ley himself would also wire funds from his drug px-oceeds family to various members. part, part,

Affirmed in reversed part, vacated in and remanded charged conspiracy with published opinion. Judge DIANA marijuana, distifibute distribution of mari- majority wrote the GRIBBON MOTZ juana, conspiracy money, to launder opinion, joined. Judge MICHAEL money laundexing. After Judge Chief wrote a WILKINSON plea negotiations, pled guilty he to the two dissenting opinion. conspiracy counts and the district court calculating him. In proceeded to sentence OPINION Bartley’s offense level under the Sentenc- MOTZ, DIANA Circuit GRIBBON Guidelines, began the court with the ing Judge: assigned drug distribution predicated upon a base offense level of 28 Rory Bartley pled guilty to one count of marijuana in the marijuana the amount of involved conspiracy to distribute and one 3742(e); Sentencing Guidelines See 18 States v. See U.S. U.S.C. offense. (c) (1998). France, 2Dl.l(a), Cir.1998), The court Manual cert, denied, applied a three-level enhancement for then 527 U.S. 119 S.Ct. (1999). supervisor manager as a role 144 L.Ed.2d 247 3Bl.l(b), re- in the see id. *3 adjusted in an offense level of 31

sulting II. For drug for the distribution count. the Bartley first the two con- argues the district spiracy counts should have been offense level of 23 assigned court a base adjusted in calculating his combined of- 2S1.1(a)(1) applied under U.S.S.G. fense level. Section 3D1.2 of the Sentenc- the same three-level enhancement based provides ing grouping Guidelines for the of in the offense. The court on role counts, “in- closely related or those that applied then another three-level enhance- substantially the same harm.” The volv[e] Bartley’s knowledge ment based identify Guidelines four situations which proceeds the laundered funds were grouped together counts should sen- 2Sl.l(b)(l), resulting under U.S.S.G. purposes: tencing adjusted an offense level of 29 for this (a) involve the same victim When counts count. and the same act or transaction. group The district court did not the two (b) When counts involve the same victim conspiracy together single into a and two or more acts or transactions Chapter D of “Group” under Part the connected a common criminal ob- Instead, Sentencing Guidelines. the court jective constituting part of a com- distinct, and, in the two counts as treated plan. mon scheme or 3D1.4(a), with accordance (c) embodies When one of the counts greater court with of the two started conduct that is treated as drug conspira- for the offense levels— in, or other ad- offense characteristic cy then added two more levels be- —and to, justment guideline applicable adjusted cause the offense level for the to another of the counts. money laundering conspiracy only was (d) When the offense level is determined levels less serious than that for the largely on the basis of the total conspiracy. This resulted combined loss, quantity amount of harm or adjusted Finally, offense level involved, of a or some oth- substance court with a three-level credited harm, or if aggregate er measure of adjustment acceptance for his downward 3E1.1, ongoing behavior is offense responsibility, see id. for a in nature and the offense continuous him total offense level of and sentenced written to cover such guideline is imprisonment. to 109 months behavior. appeal, Bartley contends that On U.S.S.G. 3D1.2. failing the district court erred pur In an addendum to Presen- conspiracies sentencing the two (PSR), Report probation officer poses. govern also contends that the tence He application note sup cited subsection ment offered insufficient evidence explain why conspir- port imposition district court’s of the he treated In the acy separate groups. role in the alleged enhancements for his counts as opinion, conspiracies harmed conspiracies. We review a district court’s officer’s and therefore did interpretation Sentencing distinct societal interests legal novo, victim.” v. not involve “the same Guidelines de see United States Williams, Cir.1998), objected Although govern- to the PSR. officer’s agreed probation with the underlying and its factual determinations ment (b), brought it also analysis for clear error. of subsection applying the Guidelines conspiracy to launder level for the poten- attention the offense court’s to the district court, as recommended money, a basis the district as tial of subsection relevance PSR, one enhance- applied counts as a three-level treating Nonetheless, refusing Bartley “knew or believed group. ment because offenses, simply de- court an the district the funds were conspiracies each of termined that ... activity involving the distri- unlawful and did interest harmed a distinct societal narcotics or other controlled sub- bution of required 2Sl.l(b)(l). “the same victim” not involve In this stances.” U.S.S.G. (b); the court never reached case, grouping under subsection on the basis of question circuit to consider required. As (c). dis- *4 explained: charges, tribution assume, appeal, we purposes For of this conspiracies im- deciding, that the without were counted twice drug Rice’s interests, and so different societal pact sentence; as the basis toward his once (b) counts under subsection grouping the counts, drug conviction on his for his v. improper. See United States would be specific offense character- again as (11th Cir.1992) 321, F.2d 322 Harper, 972 count. istic of (b)); group under subsection (refusing to Rice’s increasing This had the effect of Gallo, 824 by level three money laundering offense Cir.1991) (same). (5th But see United 2Sl.l(b) § he knew pursuant to because Lopez, 1150-51 receiving the funds he was or believed (9th Cir.1997) (grouping under subsection unlawful proceed[s] dis- Sentencing proper); United States Therefore, marijuana.... tribution of Commission, Frequently Most Asked we find that Rice’s offense behavior Questions Sentencing About Guide- impermissibly double counted. Accord- 1994) (“Most lines, Fre- 20-21 ed. ingly, we hold that the district court Questions”) un- (grouping quently Asked failing erred in Rice’s counts (c) (a), (b), proper).1 or der subsections sentencing purposes required as 3D1.2, however, § commentary pro- (c). subsection “[cjounts ... grouped are to be vides that Rice, F.3d United States v. any if one or more of the subsections (5th Cir.1999). provide grouping.” such U.S.S.G. comment, (n.l) added); 3D1.2, (emphasis the Fifth reaching holding In this Cir- comment, (“Counts id., (backg’d.) also see cuit relied on its earlier decision United (or victims societal involving different Haltom, States v. crimes) harms in the case of ‘victimless’ Cir.1997), which one count of mail involved together only provided as grouped fraud and four counts of tax evasion. The (d).”). Thus, if even or (c) re- Haltom court held that subsection improper under subsec- grouping would be quired grouped the counts to be where (b), may proper under another tion applied a two-level en- the district court subsection. 2T1.1(b)(1) hancement under U.S.S.G. the offense level for the tax calculating counting,” “double sub prevent To counts because the defendant’s evasion offenses to be requires section from criminal unreported income derived when one count “embodies conduct that is i.e., mail fraud. The court ex- activity, treated offense characteristic as to,” plained “[b]y requiring in, adjustment the offense or other Haltom’s[offenses], spare count. level calculation of the other 1.2(c); any punishment incremental for his id. him U.S.S.G. 3D see also comment, (n.5). clearly tax calculating [T]he In crimes.... length I of the dissent. Accordingly, we ad- dressed at in Part do not reach issue using drug conspiracy ... the mail fraud count to rored count. To forbid for tax evasion enhance the offense level adopt argument promote would an tax evasion using and then the enhanced approach Sentencing Guidelines level offense level to increase the offense require would district courts to unneces- (emphasis mail 113 F.3d at 47 fraud.” sarily “split guess congressional hairs” or added). intent in evaluating specific offense adjustments Rice, characteristics or other Bartley, like received the three- (c). Moreover, covered if under we level enhancement 2Sl.l(b)(l) for his that the approach, followed this we could never proceeds of un- laundered funds were the group money laundering with a offense lawful distribution activities. As Frequently offense. But see Most such, Rice, here, conduct embodied (“§ Questions, supra, Asked 3D1.2 marijuana to distribute by the would call for of related conviction was double counted: “the en- trafficking ... directly responsible hanced count was (a), (b), under one more of rulés for the ultimate 2-level increase in his (c).”). level”—from 31 to 33—under total offense Furthermore, whatever the merit of this Haltom, 113 F.3d at 46.2 U.S.S.G. 3D1.4. *5 approach given case—and our good course, only if “applies Of Judge friend Wilkinson dissent makes the offenses are related.” U.S.S.G. comment, 3D1.2(c), (n.5). good approach about as a case for this Although the possible district court found that cannot conclude it were should —we purposes (c), all, not of sub- here. “interrelated[ ]” followed Subsection after court, conspiracy section because each caused requires determining a when wheth- harm, obviously a different societal offenses, er to to consider the con- conspiracies money laundering duct embodied in each of a defendant’s “closely were related” under subsection case, multiple In the conduct counts. this (c). Indeed, the indictment and the both drug conspiracy embodied count is explicitly PSR refer to the association of Indeed, expansive. indict- extremely conspiracies, and the district court fur- specifically alleges ment “[i]t that the “was to found part conspiracy a that in [drug] ther proceeds conceal and move the ... [and] ongoing illegal order to finance their activ- proceeds get those to other individuals ity, the defendants ... would and did use consignment fronting who were in the transfers, Western Union drugs.” chain of command of the Service, couriers” to Parcel and other “in marijuana transfer sales Nevertheless, government activ- ongoing illegal order to finance their the dissent maintain that subsection ity.” considering In whether to apply does not case because offenses, we the “conduct” cannot treat specific offense characteristic at issue drug conspiracy count as embodied punish does not for the actual distribution constituting only acts of distribution rather for transport drugs, of but when in fact the offense conduct the indict- laundered knowledge funds conspiracy actually charges this ment drug proceeds. According govern to the dissent, laundering drug proceeds to count includes knowledge ment and the is a illegal drug not mir- facilitate distribution activities. separate act of criminal conduct 3D1.4(b), the combined offense 2. Had the three-level enhancement under U.S.S.G. 2S1.1(b)(1) imposed, have been because the not been level would conspiracy Bartley's would have for the launder- offense level unit, only thus re- ing conspiracy would 26. His of- been counted as one-half have been conspira- quiring only level rather an increase of one fense level for the distribution cy According would have remained at 31. than two. in which a one-size-fits-all scheme “the advance that because The dissent contends offenses, offenses, those ‘of- certain ‘counts’ and use the words the fact Leaving aside grouped. at can be post interchangeably,” fenses’ likely would have the Commission to confine its intend a court Guidelines it courts provided such a list had intended elements of legal grouping analysis (as in this manner apply the Guidelines than the conduct an rather “offense” 3D1.2(d)), §in the dissent’s similarly did Examination charged in the indictment. judge approach sentencing would rob and “offense” as used of the terms “count” Guidelines, however, prosecutor’s power any means to check leads throughout manipulate required grouping contrary conclusion inevitably to picking choosing under which statutes more than the ele- encompass those terms Moreover, Indeed, preserving authority Chapter Two of to indict. ments of a crime. sentencing in the court to examine the uses the term repeatedly the Guidelines characteristics,” in the indictment charged conduct and a review “offense “complexity” create the the dis- considers “charac- does not what the Commission 677; fears, post judge ought at to be makes clear that sent of an “offense” teristics” with the indictment whenever he of a crime other familiar aspects includes “offense” naturally should example, imposes a sentence and For Com- than its elements. during facts contained therein a defendant consider the states that whether mission sentencing. laundered funds is a “knew” the source of of the “offense” “characteristic” differs from significantly This case thus laundering. 2S1.1. Since Lombardi, 5 F.3d 568 funds is not an of laundered the source Cir.1993), heavily which the dissent re- laun- the “offense” “element” of Lombardi involved no lies. *6 obviously included dering, the Commission mail fraud and mon- charges counts but within of a crime more than the “elements” separable; that were Lom- ey “offense.”3 its definition of pro- fraudulently secured insurance bardi court, in a deposited proceeds a ceeds and then holding our that when Nor does no indication that charged the facts bank. There is Lombar- grouping, must examine deposits any way ongoing in facilitated power prosecu- in cede di’s the indictment fraud, “manipulate” a de- or future mail or that the indictment them to tors or allow Rather, specifically charged they that did. Post at 677. fendant’s sentence. simply ap- analysis to the rationale of Lombardi does by restricting offense, ply the dissent would here.4 “elements” of an drug proceeds, defining that that "offense" or laundered funds were 3. We also note "anomaly” creates no in this case. suggests situation the dissent would con- "count” as long- post Bartley will receive a commentary at 678. of the Guidelines tradict drug 3D1.2(a) (b). participating in the er sentence for pertaining That com- he conspiracy than he would have had mentary supports grouping auto theft and merely known the source of the laundered identification when alteration of vehicle’s charged with funds. If had been ... a common scheme those "counts involve comment, (or to) 1.2, (n.4). pled guilty only launder- plan.” § Were a or 3D ing conspiracy, his total offense level would analysis to limit of those two offenses court 26, elements, assuming the district court have been legal their and not look at indictment, applied adjustments would have the same in an facts as established offense, knowledge that for his role in always that would be unable to find these drug proceeds, accep- the funds were scheme or two crimes involved common But, responsibility. having pled tance of plan. conspiracies, distri- guilty to both higher adjusted of- although would bution count results 4. We also note that level, 31, starting point fense which is the have received the same enhancement for of the offense level for had he not been for the calculation count grouped, multiple If the counts are counts. involved in the actual distribution (again the total offense level would be 28 marijuana had come to know that the but may conceptual adjusted diffi- Although there offense level for each count. 3Bl.l(b). culty characterizing in some cases See U.S.S.G. the laundered funds “knowledge” 3Bl.l(b) Section of the Guidelines drug proceeds

were “conduct” embodied provides sentencing for a enhancement violations, there charging a count manager the defendant was a “[i]f or su Lombardi, is none here. Unlike (but leader) pervisor organizer not an clearly quite charges case the indictment activity and the criminal involved five or drug conspiracy that includes use of more participants or was otherwise exten proceeds laundering to facilitate 3Bl.l(b). sive.” U.S.S.G. The commen Therefore, illegal drug distribution. after tary to this section also states “[a]n district court enhanced mon- upward departure may be warranted ... ey sentence because his in the case of a defendaht who did not pro- were laundered funds lead, organize, manage, supervise an a drug ceeds of the court participant, other but who nevertheless ex should have management ercised responsibility over counts. assets, property, or activities of a crim Sentencing has ex- Commission 3B1.1, organization.” inal Id. comment. plained provisions gov- that the Guidelines comment, (n.2); (n.4) see (identify also id. erning grouping multiple counts are ing relevant factors to consider evaluat intended to enhance a defendant’s sen- ing the role of a defendant criminal multiple “repre- tence if the addition, activity). In the enhancement is sent additional conduct that is not other- justified if the managed defendant or su guidelines.” wise accounted pervised the activities of at least one other intro, D, Ch. Pt. comment. person in a scheme that involved five or Therefore, grouping appropriate in more participants. See United States v. drug conspiracy case because the Capers, 61 F.3d 1108-09 Cir. count, indictment, forth in as set “em- 1995); Brown, United States v. bodies conduct”-— Cir.1998); 485-86 illegal drug funds (2d Payne, Cir. (and knowledge distribution of that con- 1995).5 *7 duct) treated as a [wa]s —“that supports The record the district in” calculating offense characteristic Bartley that finding manager court’s was a offense level for the con- supervisor conspiracies. or in each of the 3D1.2(e); spiracy count. U.S.S.G. see government presented that comment, evidence 2S1.1, (backg’d). also id. Ac- Bartley controlled the activities of other cordingly, the district court' in failing erred participants distribution con group counts. spiracy by directing one of his street deal identify Parkersburg, ers to addresses in

III. Virginia, packages West where the of mar Baftley ijuana sent, contends that the district court could be and sending his finding also girlfriend Virginia.on erred that he exercised a to West at least one managerial supervisory or role in the con- transport drugs. occasion to The rec spiracies, finding justi- the court used to ord also indicates from the time Bart fy a three-level enhancement in calculating ley conspiracy, became involved he assuming adjustment acceptance Bartley conspira- an of does not contest that the responsibility); grouping not the counts re- participants. involved five or more cies level sults total offense of 30. Either

way, Bartley's greater degree culpability participating conspiracies in both is re- higher flected in a total offense level. Gallo, v. 927 F.2d by United States responsibility” management “exercised Cir.1991) (same); with United States (5th han- payment, terms of and setting prices (9th Cir.1997) Lopez, F.3d 1149 v. logistics arranging the dling proceeds, (b)). Like under subsection (grouping to his deliveries, giving advice wise, among the disagreement there is a prod- market the how to street dealers offenses are sufficient circuits as to which regard to uct. With under grouping to merit ly related directed repeatedly 3D1.2(c). United Compare the U.S.S.G. proceeds from transfer to wire others Lombardi, 5 F.3d 568 v. Cir. States or to receive activities drug distribution 1993) (refusing his behalf. funds on such transfers under subsection mail fraud offenses a defendant not a case This is Rice, v. States (c)); 185 F.3d with United their negotiated drugs simply supplied Cir.1999) (5th (grouping Rather, clearly indi- the evidence sale. under laundering and narcotics offenses logistics “arrang[ed] the cates (c)). payments,” [marijuana] deliveries money laundering and I believe that very “coordinate[d]” least and at Var- sufficiently different drug trafficking of others. activities Cir.1994). at all. Be- grouping no This crimes that gas, merit underesti- in this situation the enhance- cause to warrant alone is sufficient Harriott, See, harms range that narcotics e.g., mates ment. Cir.1992). upon society, I would enterprises inflict judgment court’s affirm the district Therefore, district court did all of the punished be the defendant Bartley’s role finding clearly err he was offenses of which .convicted. en- a three-level justified the offenses 3Bl.l(b). hancement under U.S.S.G. I.

IV. money laun- that his Bartley contends should dering reasons, reverse the we For the above 3D1.2(b). I under dis- the con- refusal to district court’s agree. counts, we affirm the sentenc- spiracy but imposed for ing enhancements mandates Subsection conspiracy. We vacate role in each victim and counts involve the same “[w]hen dis- sentence and remand case [are] or more acts or transactions with resentencing trict court for consistent objective connected com-mon criminal opinion. of a common scheme part or constitute] 3D1.2(b). *8 In cases such plan.” U.S.S.G. PART, IN REVERSED AFFIRMED victim, this, society large at is as where PART, PART, IN AND IN VACATED (b) purposes the “victim” for REMANDED interest that is harmed.” “is the societal comment, (n.2). Id. guide- The WILKINSON, dissenting: Judge, Chief cases, the counts explain in such lines respectfully I dissent from “the socie- when together offenses which interests are harmed tal is a conflict square There was convicted. Id. related.” regarding whether to among circuits with under problem The basic and narcotics dis- stat- the narcotics under tribution money laundering statute 3D1.2(b). and the Compare utes See (11th Cir.1992) separate 321, protect societal interests. Harper, 972 F.2d 322 321, Harper, (b)); 972 322 United States v. F.2d (refusing to under subsection

675 (11th Cir.1992) (holding that narcotics dis- the bill noted that although already it was possible tribution increases violence and threatens under the Internal Revenue Code public money health while laundering prosecute individuals for tax facilitating evasion, integrity lawfully operat- threatens the Congress determined that there institutions); ing financial United States v. existed a special need for “a penalty for Gallo, (5th 815, Cir.1991) 927 F.2d 824 job those whose it is to unreported launder (same). Quite simply, may one 99-433, launder income.” Rep. S. No. at 11. money without participating narcotics Second, money laundering statute may and one participate in a protect aims to integrity of financial narcotics conspiracy without laundering institutions. There is a wholly separate different, money. Each crime is and each societal interest in protecting integrity inflicts upon society. distinct harms of such given institutions their key role in

Congress recognized as much country’s when it economy. “While both [nar- passed statute. See cotics money distribution and laundering] Money Laundering Control Act of polity, 1986 taint our the former peo- taints our 1352, (1994). §§ ple; 18 U.S.C. 1956-57 The injures their bodies and then- report Senate clear makes that the bill was institutions; minds. The latter taints our intended to create a “new Federal offense it uses legitimate otherwise means to against money laundering.” Rep. S. No. transfer or illegitimate gains.” hide Unit- (1986). 99-433, reason, at 4 For 1149, Con ed v. Lopez, States 104 F.3d (9th Cir.1997) gress designed money laundering (Fernandez, J., stat dissenting). target ute to conduct other than that which Congress recognized money launder- generated “dirty” money. placed The Act ing financial institutions at risk. provides punishment S.Rep. 99-433, conduct under No. at 2 (“[Organized subsequent taken to the underlying crime today crime uses banks and other financial merely rather than affording an alterna routinely, institutions as if frequent- not as businesses.”). tive means of punishing underlying ly, legitimate Bank em- Holmes, crime itself. See United ployees States v. could be enticed to aid criminals in (2d Cir.1995); 44 F.3d money. their schemes to launder Public Pierro, confidence in financial institutions could be Cir.l994); Edgmon, United States v. they undermined if it were revealed that 1206, 1213-14 Cir.1991). served underworld clients. In order to institutions, protect money financial protected by societal interests good statute creates a faith de- money laundering statute thus differ from fense for financial institutions that inform the societal protected by interests the drug law enforcement officials about customers laws. See Heaps, United States v. they suspect laundering. See Cir.1994) (in creating the Laundering Money Control Act of 1986 statute, “Congress in- 3403(c) (1994). U.S.C. prevent tended to an ill other than those Act requires Attorney also General to laws”). already prohibited by other report regulators to bank laun- First, are at differences least threefold. dering any convictions of financial institu- laws, contrast to the narcotics employee. tion’s officer or See 18 U.S.C. laundering statute is concerned with col- *9 § 1956(g). lecting tax revenue on income from illicit sources. applies Finally, importantly, Section 1956 to individu- the mon- and.most als who money ey launder “with intent to designed pre- statute is criminals, engage constituting variety conduct a vent just drug violation of dealers, of 7201 section or 7206 of the Internal enjoying profits from the of their Revenue Code of 1986.” 18 illicit prohibi- U.S.C. activities. Section 1956’s 1956(a)(l)(A)(ii). § report solely The Senate tions do not extend 676 his of Rather, operation independently narcotics section distribution. narcotics Finally, the from, laundering activities. money other among profits applies 1956 Union’s wire mur of the Western prostitution, integrity illegal gambling,

things, embezzlement, by der-for-hire, loansharking, transfer business tested exploited 18 laundering. U.S.C. money extortion. See bribery, and 1997). 1956(c)(7)(1994 good will reputation III Supp. & Western Union’s about the authorities to deceive order illuminates wide net of section This enterprise. role in the narcotics his Ninth Circuit’s the shortcomings of Lopez, analysis protected interests the societal Because Cir.1997) curiam), (per F.3d narcotics laundering and by money case, relies. In that upon distinct, court the district are statutes that the so- Ninth Circuit determined of- group Bartley’s refused properly money protected interests cietal (b). fenses under subsection trafficking and the laundering statute money because closely related statutes II. “to obtain drug dealers laundering allows illicit gained from benefits of income majority contends 104 F.3d at 1150-51. Lopez, activities.” drug offenses laundering and money view, socie- the Ninth Circuit’s Under under U.S.S.G. should be laun- by the protected money interest tal 3D1.2(c). Bartley’s drug argues It eliminating the is that of dering statute as the doubly counted—once offenses drug trade. conviction under his basis of mon- Treating narcotics distribution of- once as U.S.C. related,” howev- “closely ey laundering as launder- fense characteristic his er, protected societal interest misstates the ing count. society namely, protect by section 1956— (c) man- again disagree. I Subsection capital earned the disbursement from the counts one of grouping “[w]hen dates why section by criminals. This spe- that is treated as a conduct embodies narcot- crimes besides applies many to so in, ad- or other cific characteristic offense anal- Ninth Circuit’s ics distribution. to, guideline applicable justment laun- have would us ysis counts.” U.S.S.G. another charges for bookie dering gambling state, 3D1.2(c). theAs proceeds, since launders his who prevent is to purpose of “to laundering allows bookies obtain counting’ of offense behavior.” “‘double activi- gained income from illicit benefits comment, (n.5). Howev- Likewise, analy- Ninth Circuit’s ties.” er, clear that also make laun- would have us sis only if the offenses “applies hitman, for a dering and murder related.” Id. allows assassins since gained of income the benefits “to obtain majori- by the persuaded I am neither illicit activities.” Rice, nor ty’s analysis (5th Cir.1999), upon which of 185 simply This cannot be. facts analyses disre- majority relies. Both separate case societal illustrate 1.2(c) determining First, of 3D gard Bart- text several of invaded. interests only the that a defendant’s engaged in ley’s coconspirators “conduct” origin counts as proceeds’ others conspiracy, while drug distribution Furthermore, (c). purposes of subsection money laundering en- only in the engaged consider analyses adequately fail to Second, both Bartley’s girlfriend terprise. York, and narcotics whether money to New transported drug *10 “closely related” as re- his distribution Bartley could conduct suggesting that quired by guidelines. the indictment-specific See U.S.S.G. inquiry prose- affords comment, (n.5). § cutors the opportunity manipulate a de- fendant’s simply sentence by artfully majority disregards plain

The text of drafting indictments. That (c), state of affairs attempt subsection its to call Bart- directly contradicts knowledge guidelines’ ley’s purposes conduct for stated 3D1.2(c). (c) § purpose Subsection significance mandates “limit the of the grouping “when one of the counts embod- formal charging decision.” e.g., See ies conduct that specific is treated as a 3D, § U.S.S.G. Introductory Commentary. offense characteristic” another of the all, Above the majority’s analysis has di- 3D1.2(e) § (emphasis counts. U.S.S.G. verted the grouping inquiry away from the added). majority The argues that plain text of the guidelines. put, Simply interpreted term “conduct” should 3D1.2(c) § hinges conduct, on Bartley’s broadly to include everything alleged in specific while the enhancement for money Bartley’s drug conspiracy charge. Specifi- 2Sl.l(b)(l) § laundering under hinges on cally, the majority argues since the Bartley’s knowledge.1 drug conspiracy charge alleged Bartley laundered order finance his majority’s mistake is thus funda- activities, ongoing drug Bartley’s “knowl- apply mental. It fails to guidelines edge” that the laundered funds were the terms, (c) written. By very its subsection proceeds activity of narcotics should some- applicable is not Bartley. To repeat,

how count as purposes “conduct” for grouping mandates “when 3D1.2(c). See ante at 671-72. one of the counts embodies conduct that is In the avoiding course of the clear text specific treated as a offense characteristic” guidelines, my colleagues em- good in another of counts. U.S.S.G. phasize the language used in- 3D1.2(c) added). (emphasis The “con- dictment rather than legal elements of duct” embodied in Bartley’s narcotics his offenses. See ante at 672. The count is his drugs, coupled distribution of majority offers support no guide- with the to distribute. See lines or the for its view that the caselaw (1994). 841(a)(1), §§ U.S.C. spe- factual averments of the indictment are cific offense in Bartley’s characteristic dispositive. that, suggest if money laundering crime is his anything, particular elements of- that the money being laundered came from fenses are the factor critical of narcotics transactions. 3D1.2(c) grouping determination. In- 2Sl.l(b)(l). See U.S.S.G. While ma- deed, use the words jority attempts to characterize “counts” and interchangeably. “offenses” knowledge as embodied “conduct” in the e.g., 3D, Introductory Com- count, only ignores this not the clear (“[Cjounts mentary, to- 3D1.2(c), text of but also conflates gether are constituting treated as a single two theoretical pillars criminal law— purposes offense for guidelines.”). of the actus reus and mens rea. See United contrast, By majority’s approach would States v. Lombardi sentencing force pore courts to over the Cir.1993) (“It happens that [the defen- in every averments indictment knowledge dant’s] funds’ source de- order to determine whether rives from the fact that he committed appropriate. [mail This reading makes fraud], grouping inquiry even but that does complex more than not make the fraudu- Moreover, already it is. the majority’s lent acts thing the same as knowledge of assertion, Rather, Contrary majority's simply scheme. group- follows the interpretation of does not seek ing analysis guidelines require. that promote a "one-size-fits-all” *11 com- ly related.” them.”)-2 (n.5) under subsection (grouping ment. the First Circuit’s fact that Despite the are “if the offenses only permissible is interplay the involved in Lombardi opinion related.”). provide The closely fraud, rath- mail laundering and money as count which offenses just examples narcotics and laundering money er than instance, guide- the related.” For “closely in- valuable distribution, offers that case “use of a firearm that the lines note analysis. on the subsection sights possession robbery and unlawful to bank that determined court Lombardi to sufficiently related mail are laundering and that firearm money the defendant’s contrast, “if disturbing a By create Id. grouping.” would fraud offenses warrant application. guideline’s of one count anomaly in the convicted were the defendant launders a and fraud bribing who commits “One one count fraud and of securities source) knowing of its (thereby money fraud, that public official facilitate one who culpable than normally more is grouped togeth- would not be its money knowing of merely launders er.” Id. interpretation if Lombardi’s source. Yet charges for me that appears It get ex- would adopted, a defendant and robbery firearm in bank of a use level whether total offense actly the same firearm are same of that possession for fraud or the mail committed the defendant for charges than closely more related had com- else merely that someone knew drug and Lombardi, laundering distribution. money at 571. it.” mitted above, Congress intended As noted ignores majority’s analysis to constitute laundering statute money Circuit identified anomaly First offense,” Rep. No. 99- S. Federal “new are Bartley’s If offenses Lombardi. (1986), stat- designed it at the same Bartley would receive grouped, that conduct other than target ute to level for his total offense See, money. “dirty” generated which drug dealer who run-of-the-mill as would a Holmes, 44 F.3d e.g., United States re- money. Both would did not launder Cir.1995). (2d money of 31. Under a total offense level ceive applies to laundering statute and the majority’s analysis, illegal ac- types of many different and deserve equally culpable dealer are This tivities, just offenses. not narcotics the facts despite the same sentence between crimes difference is the nothing to do with had dealer related, activities, suggest laundering money con- Bartley was crimes of drug distribution and the both the coordinated Indeed, impossible ma- become if It laundering. nearly victed. is of a laundering for the use prosecution eligible that the jority is correct with the also robbery narcotics without count should be in a bank firearm accounting count, pos- be no prosecution would eligible there becoming fact he result, for the group- sentence As a of a firearm. session In effect his conviction money. laundered un- appropriate is two offenses ing these away. See (c). contrast, would washed count By der subsection Vitale, con- in a narcotics participate possible Cir.1998). (3d money, just without spiracy without possible it is launder majori- by the persuaded I am not also conspiracy. in a narcotics participating why narcotics ty’s explanation Therefore, Bartley’s two offenses are “close- mandate of the textual "of- as conduct violation argument over the term majority’s 2. The again guidelines. fails to address fense characteristic” attempted to treat point it has

679 “closely way guide- related” is no reason to group his two crimes for lines envisioned.. sentencing purposes. Congress intended for drug trafficking money laundering however, majority argues, crimes, separate constitute and the Sen- closely offenses are related since tencing Commission intended not group money laundered in order to facili- them. Bartley separate committed two purchases. tate additional narcotics offenses and inflicted two distinct harms ante at 673. Neither the nor upon society. majority’s approach statute, however, so, consolidates these harms. In doing provide any basis for this distinction. The has underestimated the full per- extent of guidelines considered a example similar sonal devastation and corrup- institutional where a second crime was committed in tion that narcotics enterprises cause. order to facilitate the first. The determined that appro- was not I would affirm the judgment. priate in that case. See U.S.S.G. comment, (n.5). Likewise, plain text of applies statute equally laundering committed

with an intent to facilitate ongoing criminal

activity laundering that does

not facilitate such activity. See 18 U.S.C. Stanley SANDERS, 1956(a)(1). Petitioner- Appellant, majority point decries the two in- in Bartley’s

crease total offense level that results from 3D1.2’s unwillingness to EASLEY, Attorney Michael F. General noted, his offenses.3 It should be Carolina; State of North R.C. however, that guideline the same Lee, Warden, Prison, Raleigh, Central manage rules to combine a level 31 offense Carolina, Respondents-Appel North (for distribution) narcotics with a level 29 lees. (for money offense laundering) produce 00-2. No. (instead a combined offense of 33 60) final'adjustment.4 before the This is a United States Appeals, Court of show of “charity far more significant than Fourth Circuit. point increase that is at issue Lombardi, 26, here.” Argued: Sept. United States v. 5 F.3d 568, Cir.1993). 31, Decided: Oct.

III.

That money laundering offense loosely

is related to his narcotics activities 3D1.2(d) above, 3. U.S.S.G. lists individual of I believe and nar- fenses, including money laundering and nar cotics distribution are not related. See distribution, eligible group cotics that are 321, Harper, also United States v. 972 F.2d However, ing. may only (11th Cir.1992) (refusing these (d) they under subsection if "closely relat (d)); offenses under subsection Walker, 163, ed.” United States v. 112 F.3d Lopez, 104 F.3d 1153-54 Cir. 1997) (citing Cir. United States v. 1997) J., (Fernandez, (same). dissenting) Porter, (4th Cir.1990)); 792-93 Napoli, see also United States v. grouped, If the Bartley's counts are (2d 1999) ("[T]he total n. 4 appearance Cir. mere offense level would be 31 rather than fraud and on subsection (d)'s grouped’ adjustment list of before acceptance counts 'to be the final insuffi they placed cient to establish should be responsibility. single group.”). For the reasons stated