David Vizcarra and Rogelio Aguirre committed a kidnapping for ransom to extract payment of a drug debt, abducting the victim in Indiana, taking her to Illinois, and holding her for two days before federal agents rescued her. Along with two other co-conspirators, they were indicted on conspiracy and kidnapping charges. They pleaded guilty to the kidnapping count, and each appealed. Vizcarra argues that the district court miscalculated his guidelines sentencing range by applying a six-level enhancement under U.S.S.G. § 2A4.1(b)(l) for kidnapping demanding a ransom. Applying the enhancement, he contends, was impermissible double count *518 ing because the underlying offense involved a ransom demand. He also claims the judge failed to adequately address his arguments in mitigation and that his 168-month sentence is unreasonable in light of those mitigating facts. Aguirre’s counsel filed an Anders brief seeking permission to withdraw after finding no nonfrivolous issues for appeal.
We affirm Vizearra’s sentence. Applying the enhancement for demanding a ransom does not impermissibly double count. In so holding we resolve an inconsistency in our caselaw regarding the concept of double counting. Despite what we have said or implied — most recently in
United, States v. Bell,
I. Background
Rogelio Aguirre fronted a significant quantity of marijuana to a woman identified in the briefs as “Victim A.” When she failed to pay for the marijuana, Aguirre devised a plot to kidnap and hold her for ransom to pay off the debt. He recruited Antonio Vasquez to help with the kidnapping, and Vasquez, in turn, recruited Jacinto and David Vizcarra (father and son). A fifth unnamed co-conspirator arranged to meet Victim A at a tollway plaza in Indiana. Vasquez and the Vizcarras drove to the plaza with the unnamed co-conspirator. The co-conspirator approached the victim, and David Vizcarra and Vasquez forced her into Jacinto Vizcarra’s van. The Vizcarras drove Victim A to Aguirre’s apartment in Illinois, and Aguirre told Vasquez to call her family and demand a ransom. Vasquez thereafter made several ransom calls. The kidnappers held Victim A for two days, threatening her and her family. Federal agents eventually rescued her. Aguirre, Vasquez, and the Vizcarras were indicted for conspiracy to commit kidnapping, 18 U.S.C. § 1201(c), and kidnapping, 18 U.S.C. § 1201(a)(l)-(2). Aguirre and David Vizcarra pleaded guilty to the kidnapping charge.
At sentencing Vizcarra objected to the recommendation in the presentence report (“PSR”) that a six-level enhancement should be applied under U.S.S.G. § 2A4.1(b)(l) for kidnapping demanding a ransom. He also argued that the PSR’s recommendation of criminal-history category II overstated his criminal record. The district court agreed that category II overrepresented Vizcarra’s criminal history, which was limited to two drunk-driving convictions, but rejected his challenge to the ransom enhancement. These rulings resulted in an offense level of 35, a criminal-history category I, and a guidelines range of 168 to 210 months.
Vizcarra argued for a below-guidelines sentence, presenting several arguments in mitigation. He pointed out that he did not plan the kidnapping and he cooperated with police soon after he was arrested. He argued that his participation in the crime was an aberration based on his limited criminal history and other aspects of his background. He also maintained that a lengthy prison term was unnecessary as a specific deterrent; because his criminal *519 record was insignificant — he had spent only one day in jail prior to the kidnapping — a shorter prison term would have a comparatively strong deterrent effect on him. Finally, he argued that his drug and alcohol problems influenced his participation in the crime.
The court imposed a sentence of 168 months, the low end of the guidelines range. Vizcarra appealed, challenging his sentence on procedural and substantive grounds. In particular, he contests the district court’s application of the six-level enhancement under § 2A4.1(b)(l) for kidnapping demanding a ransom.
Aguirre’s PSR recommended a guidelines range of 235 to 293 months. Aguirre agreed with the guidelines calculation but argued for a below-guidelines sentence based on his age (then 56) and poor health. The judge sentenced Aguirre to 235 months, the low end of the guidelines range, and Aguirre appealed. His appointed counsel filed an Anders brief and moved to withdraw after concluding that there are no nonfrivolous issues for appeal. Aguirre did not initially respond, but we later granted his request to file a late response.
II. Discussion
A. David Vizcarra’s Appeal
Vizcarra raises three issues on appeal, all relating to his sentence. The main event is an argument about double counting: He contends that applying the six-level enhancement for kidnapping demanding a ransom under § 2A4.1(b)(l) is impermissible double counting because demanding a ransom was an element of his kidnapping conviction. He also argues that the judge ignored several of his arguments in mitigation and that his sentence is substantively unreasonable.
1. Double Counting
In the context of guidelines sentencing, the term “double counting” refers to using the same conduct more than once to increase a defendant’s guidelines sentencing range. Claims of impermissible double counting come in two varieties. First, conduct that forms the factual basis for an element of the offense might also support a guidelines enhancement or adjustment, meaning that the conduct is counted once as part of the base offense and a second time through the application of an enhancement or adjustment. Second, particular conduct might support the application of more than one enhancement or adjustment. Our cases are inconsistent about whether double counting is generally permissible or impermissible. The government asks us to resolve the inconsistency, and we accept the invitation. We hold that double counting is generally permissible unless the text of the guidelines expressly prohibits it. This holding overrules
Bell,
“Double counting in the sentencing context ‘is a phenomenon that is less sinister than the name implies.’ ”
United States v. Lilly,
Section 1B1.1 explains the general principles for applying the guidelines, instructing sentencing courts to apply the guidelines’ various rules in order, “except as specifically directed.” U.S.S.G. § lBl.l(a). To arrive at a sentencing range, the judge undertakes several sequential intermediate steps to calculate the applicable range, including selecting the proper offense guideline, determining a base offense level, applying enhancements under Chapter Two and adjustments under Chapter Three, and determining a criminal-history category. Id. The defendant’s advisory sentencing range is based on the adjusted offense level and criminal-history category. Id. All this is familiar and well understood.
A structural feature of guidelines sentencing is that distinct aspects of a defendant’s conduct will support respective increases in punishment through multiple sentencing enhancements, adjustments, or other determinations specified in the guidelines. Occasionally, a single aspect of the defendant’s conduct will, by itself, supply the factual basis to trigger more than one of the various inputs that combine to yield the advisory guidelines range — the base offense level, sentencing enhancements, and adjustments. This is where the sometimes misunderstood concept of double counting comes in.
Section 1B1.1 and its application note 4 establish the general principle that the various step increases in the guidelines are cumulative. Subsection B of application note 4 explains that cumulative application is the rule even if multiple increases are based on the same conduct, unless a specific guidelines instructs otherwise:
4. (A) Cumulative Application of Multiple Adjustments within One Guideline. — The offense level adjustments from more than one specific offense characteristic within an offense guideline are applied cumulatively (added together) unless the guideline specifies that only the greater (or greatest) is to be used. Within each specific offense characteristic subsection, however, the offense level adjustments are alternative; only the one that best describes the conduct is to be used. For example, in § 2A2.2(b)(3), pertaining to degree of bodily injury, the subdivision that best describes the level of bodily injury is used; the adjustments for different degrees of bodily injury (subdivisions (A)-(E)) are not added together.
(B) Cumulative Application of Multiple Adjustments from Multiple Guidelines. — Absent an instruction to the contrary, enhancements under Chapter Two, adjustments under Chapter Three, and determinations under Chapter Four are to be applied cumulatively. In some cases, such enhancements, adjustments, and determinations may be triggered by the same conduct. For example, shooting a police officer during the commission of a robbery *521 may warrant an injury enhancement under § 2B3.1 (b)(3) and an official victim adjustment under § 3A1.2, even though the enhancement and the adjustment both are triggered by the shooting of the officer.
Id. § 1B1.1 cmt. n. 4 (A), (B) (emphasis added). Discrete exceptions to this rule are found elsewhere in the guidelines, each outlining a specific situation under which a particular guidelines provision should not apply in the presence of another. See, e.g., id. § 2B1.1 cmt. n. 8 (C) (prohibiting application of § 3C1.1 obstruction adjustment if based on identical facts as § 2Bl.1(b)(10) sophisticated-means enhancement); id. § 3C1.1 cmt. n. 7 (prohibiting application of § 3C1.1 obstruction adjustment if based on identical facts as underlying obstruction offense). But in the absence of one of these explicit double-counting bars, § 1B1.1 and its application note 4 make it clear that cumulative application — that is, “double counting” — is the default rule.
One line of our cases agrees.
See, e.g., United States v. Nance,
Our recent decision in
Bell
fits into this second line of cases applying a general rule against double counting. As we will see, however,
Bell
is actually unique. Maurice Bell was convicted of willful failure to pay child support in violation of 18 U.S.C. § 228(a)(3).
Bell,
*522 Bell is problematic for more than one reason. First, the opinion does not consistently apply its own concept of impermissible double counting, which it defined as follows: “Impermissible double counting occurs when the same conduct justifies two upward adjustments under the Sentencing Guidelines or the same underlying facts that establish an element of the base offense are used to justify an upward enhancement.” Id. at 372. Bell acknowledged that for some offenses the same conduct will be captured in an element of the offense and also trigger the application of an offense-level enhancement in every case. Id. We said this overlap does not necessarily result in impermissible double counting. Id. at 372-73. To illustrate when it does not, we used the example of bank robbery, which is subject to an offense-level enhancement if money is taken from a financial institution. See U.S.S.G. § 2B3.1(b)(l). Because taking money from a financial institution is an element of bank robbery, see 18 U.S.C. § 2113(a), the financial-institution enhancement applies in every bank-robbery case.
Under
Bell’s
own definition of impermissible double counting, however, the financial-institution enhancement could not validly be applied because “the same underlying facts that establish an element of the base offense are used to justify an upward enhancement.”
Bell,
Though we did not explain it in
Bell,
this conclusion flows from the text and structure of the guidelines. Because there are more crimes than offense guidelines, the Sentencing Commission has designed the system so that a single offense guideline can account for multiple loosely related but distinct offenses through the use of enhancements.
See, e.g., United States v. Michalek,
Our decision in
Bell
went astray by ignoring the text of the guidelines in favor of a supposed general rule against double counting.
1
To be fair, many of our cases simply recite (or imply) that double counting is generally impermissible, so by reit
*523
erating that principle,
Bell
is not unique. But
Bell is
unique in finding a double-counting violation where the text of the applicable guideline permitted — indeed,
required
— application of an enhancement that overlaps with an element of the offense. By our count, 12 of our cases have reversed based on double-counting errors. Five involved an explicit double-counting bar in the text of the guidelines and thus are not controversial.
See United States v. Eubanks,
Bell
relied on circuit precedent to support the proposition that the guidelines generally prohibit double counting, but as we have noted, our prior cases never justified that rule.
Bell
relies primarily on
Haynes,
There are several reasons to be skeptical of this line of cases. First, although
Lallemand
invokes the Eighth Circuit’s decision in
Lamere
— and by implication its predecessor
Werlinger
— as support for the principle that “[t]he guidelines do not authorize double counting,”
Lallemand,
Perhaps the reasoning of these cases made sense at the time. However, the Sentencing Commission amended application note 4 to § 1B1.1 throughout the mid-1990s, casting significant doubt on these early double-counting cases. Application note 4 dates to 1988, at which time its relevant language stated: “The offense level adjustments from more than one specific offense characteristic within an offense guideline are cumulative (added together) unless the guideline specifies that only the greater (or greatest) is to be used.” The note was amended in 1993, adding this: “Absent an instruction to the contrary, the adjustments from different guideline sections are applied cumulatively (added together).” The note took its current form in 1996, when the Sentencing Commission clarified that double counting is generally permissible: “Absent an instruction to the contrary, enhancements ..., adjustments ..., and determinations ... are to be applied cumulatively. In some cases, such enhancements, adjustments, and determinations may be triggered by the same conduct.” (Emphasis added.)
This history of application note 4 — progressively clarifying that double counting is the default rule — undermines our continued reliance on pre-1996 double-counting cases. To the extent that Lallemand’s statement of a general rule against double counting was reasonable at the time, it is not now and has not been for quite some time. Rote citation to Lallemand — or rote citation to other cases that rely on Lalle *525 mand — has perpetuated a judicial gloss on the guidelines that cannot be reconciled with their text. Simply put, there is no background rule against double counting in the guidelines. To the contrary, under the general application rules announced and explained in § 1B1.1, the same conduct may determine the base offense level and also trigger cumulative sentencing enhancements and adjustments unless the text of the applicable guideline explicitly states otherwise. 3
With the notable exception of Bell, this holding is consistent with the outcomes of our post-1996 cases as well as double-counting cases from other circuits. To be sure, other circuits have developed slightly different “tests” for finding “impermissible” double counting. We have grouped the circuits together according to their general approaches to double counting:
• The Third, Fourth, and Fifth Circuits allow double counting in the absence of an explicit textual bar. 4
• The Second, Sixth, and Eighth Circuits allow double counting if Congress or the Sentencing Commission intended it, 5 but presume such intent in the absence of a textual bar, 6 effectively *526 aligning themselves with the Third, Fourth, and Fifth Circuits.
• The First Circuit allows double counting absent an explicit textual bar or a compelling basis to recognize an implicit one. 7 Because there are some explicit double-counting prohibitions in the guidelines, however, the court is openly cautious about “implying further such prohibitions where none are written.” United States v. Stella,591 F.3d 23 , 30 n. 9 (1st Cir.2009) (quoting Lilly,13 F.3d at 19 ).
• The Ninth, Tenth, and Eleventh Circuits allow double counting unless the competing guidelines provisions address identical harms caused by the defendant’s conduct. 8 These circuits appear to presume, however, that separate guidelines provisions punish separate harms unless otherwise indicated in the text. 9
• The D.C. Circuit does not have much meaningful commentary on double counting but appears to presume that double counting is permissible absent a textual bar. 10
As this survey shows, our colleagues in other circuits generally adhere to the principle that double counting is permissible unless the text of the applicable guideline instructs otherwise. Some circuits do so more or less strictly, but as a practical matter, in nearly every case the result is the same: As long as the district court *527 applies the guidelines as written, there is no double-counting error.
Returning to Vizcarra’s case, applying the ransom enhancement was not impermissible double counting. The guidelines require the application of a six-level enhancement when the kidnapper demanded a ransom, see U.S.S.G. § 2A4.1(b)(l), and nothing in the text of this guideline or its application notes suggests that the enhancement does not apply to a defendant in Vizcarra’s situation. Accordingly, the district court properly applied the ransom enhancement. 11
2. Section 3553(a) Challenges
Vizcarra next contends that the district court did not adequately address the mitigating facts he raised at sentencing and also that his sentence is unreasonable in light of those facts. The first of these arguments is procedural and the second is substantive.
See United States v. Carter,
The court is required to consider aggravating and mitigating factors under 18 U.S.C. § 3553(a) before imposing a sentence, and the judge’s failure to address a nonroutine argument in mitigation may, if the argument is substantial enough, amount to a procedural error.
See United States v. Scott,
We review the reasonableness of the sentence for abuse of discretion.
Gall v. United States,
Vizcarra focuses on three facts about his background and participation in the crime that he claims the district court either *528 ignored or overlooked: (1) he did not organize the kidnapping; (2) his participation in the kidnapping was aberrational given his insignificant criminal record; and (3) a lengthy prison term is unnecessary as a specific deterrent because he spent only a day in jail prior to the kidnapping. In the alternative, he argues that these mitigating factors make his 168-month sentence substantively unreasonable.
The district court’s explanation of Vizcarra’s sentence was brief but adequate, enough to demonstrate that the court engaged in “meaningful consideration of § 3553(a) factors.”
Paige,
Vizearra argues that even without the procedural defect, his 168-month sentence is substantively unreasonable based on the same three mitigating factors noted above. We disagree. It’s true that Vizearra did not plan the kidnapping, but his role can hardly be characterized as minor. He forcibly abducted the victim, drove her across state lines, and stood watch during her two days of captivity. Nothing about his participation suggests that he specially qualifies for leniency. The second two factors are related and rely largely on inferences that might be drawn from Vizcarra’s limited criminal history. But the judge adjusted the guidelines range to account for Vizcarra’s insignificant criminal record, dropping him from criminal-history category II to criminal-history category I. The court thus gave some weight to Vizcarra’s argument that his involvement in the kidnapping was aberrational and that a shorter prison term would suffice as a deterrent. In the end, the judge was primarily concerned about the severely aggravated nature of the crime — and justifiably so. The 168-month sentence — at the low end of the advisory range — is presumed reasonable, and Vizearra has not overcome the presumption.
B. Rogelio Aguirre’s Appeal
Aguirre’s appointed counsel filed an
Anders
brief and moved to withdraw after concluding that his appeal presents no nonfrivolous issues.
See Anders v. California,
Counsel first notes that Aguirre did not seek to withdraw his guilty plea in the district court. In his belated response, Aguirre confirms that he does not want to
*529
withdraw his plea; counsel therefore properly limited his inquiry to possible sentencing challenges.
See United States v. Knox,
Finally, counsel notes that although a below-guidelines sentence would have been reasonable in this case, Aguirre’s 235-month sentence — at the low end of the advisory range — is presumptively reasonable and there are no nonfrivolous arguments that might rebut that presumption. Aguirre now claims that he did not make any demands of the victim’s family and was not a leader or organizer of this kidnapping, but that conflicts with the facts he admitted when he entered his guilty plea. We agree with Aguirre’s counsel that there are no nonfrivolous arguments to pursue on appeal.
For the foregoing reasons, we Affirm the judgment in Vizcarra’s case (No. 09-1174). In Aguirre’s case (No. 09-2457), we Grant counsel’s motion to withdraw and Dismiss the appeal.
Notes
. We note that U.S.S.G. § 2J1.1, application note 2, was amended effective November 2011 and now explicitly provides that the enhancement in § 2B 1.1 (b)(9)(C) for violating a court order does
not
apply to failure to pay child support; this amendment was a response to our decision in
United States v. Bell,
.
This problem pervades our recent double-counting caselaw, with two exceptions.
United States v. Senn,
. It might be argued in individual cases that double counting is unfair. But if the guidelines range is arguably too harsh, the sentencing judge has ample discretion to impose a sentence outside the range.
See United States
v. Booker,
.
See, e.g., United States v. Fisher,
.
See, e.g., In re Terrorist Bombings of U.S. Embassies in E. Africa,
.
See, e.g., United States v. Reyes,
.
See, e.g., United States v. McCarty,
.
See, e.g., United States v. Gallegos,
.
See, e.g., United States v. Rosas,
.
See United States v. Valdez-Torres,
. Vizcarra's double-counting argument depends on the premise that making a ransom demand is an element of kidnapping, his crime of conviction. As the government notes, however, demanding a ransom is not a necessary element of kidnapping.
See
18 U.S.C. § 1201(a) (making it a crime to "unlawfully ... kidnap[ ] ... and hold[ ] for ransom or reward
or otherwise
any person” (emphasis added));
Gooch v. United States,