United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on the Government's Supplemental Sentencing Memorandum  and Defendant's Response to the Government's Supplement Sentencing Memorandum . The memoranda address the issue that arose during Defendant Doxie's ("Doxie" or "Defendant") sentencing on January 14, 2015, regarding whether the mail and wire fraud counts of conviction in this case are required to be grouped with the tax counts of conviction under the United States Sentencing Guidelines.
Doxie was convicted of sixty-two (62) counts of mail and wire fraud, resulting from his scheme to fraudulently bill his employer, Ennis-Paint. The scheme resulted in fraudulent payments to Doxie in an amount of over $1 million. Doxie also was convicted of four (4) counts of failing, over a four-year period, to report, to the Internal Revenue Service, as income, the amounts which he fraudulently obtained from his employer. The result of this failure to report fraudulently obtained proceeds resulted in Doxie failing to pay over $300, 000 in federal income tax. The question here is whether the mail and wire fraud and tax counts are required to be grouped under the Sentencing Guidelines. If the counts are not grouped, Doxie's adjusted offense level is increased by one level.
A. Applicable Guideline Provision
United States Sentencing Guideline Section 3D1.2 provides:
All 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:
(a) When the counts involve the same victim....
(b) When counts involve the same victim and two or more transactions....
(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.
(d) When the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm....
U.S.S.G. § 3D1.2 (a-d). The Guideline grouping rules serve particular purposes:
The Commission, like several state sentencing commissions, has found it particularly difficult to develop guidelines for sentencing defendants convicted of multiple violations of law, each of which makes up a separate count in an indictment. The difficulty is that when a defendant engages in conduct that causes several harms, each additional harm, even if it increases the extent to ...