Sentencing Guidelines – The court engaged in impermissible “double counting” in sentencing a bank robber when it applied enhancements for causing victims bodily injuries for all three counts when the conduct at issue was only related to one count.
Jermaine Clark pleaded guilty to two counts of bank robbery in violation of 18 U.S.C. § 2113(a). There was a third bank robbery for which Clark was not charged, but which the plea agreement specified should be considered in sentencing and for restitution purposes. After this third robbery, Clark had fled and was involved in a high-speed chase that severely injured a bystander.
Clark’s PSR included the third robbery as a “Pseudo Count” and added enhancements under §§ 3C1.2 (reckless endangerment during flight) and 2B3.1(b)(3)(C) (injury to victims) for the chase and injury to each of the three counts. Clark was then sentenced to the maximum of the Guideline range that this calculation suggested.
On appeal, Clark argued that the enhancements were impermissibly “double-counted” and should only have applied to the Pseudo Count. Reviewing the case de novo, the Sixth Circuit agreed, vacating Clark’s sentence.
Double counting is only permissible when either the Guidelines mandate it through cumulative adjustments or when it is clear that multiple penalties for the same conduct were intended by Congress or the Commission. No such circumstance applied here, and since Clark’s counts did not group, applying enhancements for the same conduct to each was indeed double-counting.
Appeal from the Western District of Michigan
Opinion by Clay, joined by Boggs and White
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