USSG and Double Counting: Impermissible Only When Text of the Applicable Guideline Specifically Says So

UNITED STATES OF AMERICA v. DAVID VIZCARRA and ROGELIO AGUIRRE. Nos. 09-1174, 09-2457.

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 coconspirators, 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)(1) for kidnapping demanding a ransom. Applying the enhancement, he contends, was impermissible double counting because the underlying offense involved a ransom demand.

We affirm Vizcarra’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, 598 F.3d 366, 371-73 (7th Cir. 2010)—there is no general prohibition against double counting in the guidelines. To the contrary, the default rule is that the same conduct may determine the base offense level and also trigger the cumulative application of enhancements and adjustments unless a specific guideline instructs otherwise. See U.S.S.G. § 1B1.1 cmt. n.4.

In other words, double counting is impermissible only when the text of the applicable guideline specifically says so.

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.

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.

• The Second, Sixth, and Eighth Circuits allow double counting if Congress or the Sentencing Commission intended it, but presume such intent in the absence of a textual bar, effectively 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. 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. These circuits appear to presume, however, that separate guidelines provisions punish separate harms unless otherwise indicated in the text.

• 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.

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.

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)(1), 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.