Establishing Uniformity: The Need for a per Se Rule against the Grouping of Money Laundering and Fraud Counts under the Federal Sentencing Guidelines

By Tew, Eric C. | William and Mary Law Review, March 2001 | Go to article overview

Establishing Uniformity: The Need for a per Se Rule against the Grouping of Money Laundering and Fraud Counts under the Federal Sentencing Guidelines


Tew, Eric C., William and Mary Law Review


The goal of the American criminal justice system is to achieve justice and fairness for all involved, including the victim, the accused, and society as a whole.(1) Fundamental to this proposition, however, is a system without gaps: from the arrest to the punishment, the system must consistently apply policies and procedures that promote the ultimate goals of justice and fairness. With a break in the chain, these goals cannot be realized. Thus, the sentencing decision, as one necessary link in the chain, is critically important to the criminal justice system. As one commentator has stated:

      The sentencing decision is the symbolic keystone of the criminal justice
   system: in it, the conflicts between the goals of equal justice under the
   law and individualized justice with punishment tailored to the offender are
   played out, and society's moral principles and highest values--life and
   liberty--are interpreted and applied.(2)

Indeed, the sentencing decision is even more than a "symbolic keystone"; the decision has real consequences, not only for the accused, but also for the many other individuals directly and indirectly affected by the crime.

Congress recognized the importance of sentencing when it passed the Sentencing Reform Act of 1984.(3) Congress had become disenchanted with the wide sentencing disparity in federal courts, whereby similar crimes would garner substantially different sentences depending on which judge made the sentencing decision.(4) To remedy this problem, the Act mandated the creation of the United States Sentencing Commission, whose duty was to develop a uniform, determinant sentencing system to be applied by all federal judges.(5) The result of the Commission's work was the Federal Sentencing Guidelines,(6) which provide a relatively straightforward, quasimathematical approach to criminal sentencing.(7) Yet, despite the general clarity of the Guidelines, they are not without their interpretive problems. Nowhere is this more clearly demonstrated than with the sentencing of defendants convicted of multiple counts of money laundering and fraud.

The problem arises out of ambiguous phrasing within section 3D1.2 of the Guidelines.(8) This particular section provides for the "grouping" of closely related counts.(9) According to the Guidelines, closely related counts are those counts which involve "substantially the same harm."(10) The Guidelines provide four subsections with the express purpose of defining "substantially the same harm."(11) Nevertheless, courts have been unable to agree on the scope and meaning of this phrase, especially with regard to whether money laundering and fraud convictions should be grouped as related counts.

The issue, at last count, has split ten Federal Courts of Appeals.(12) Thus, the purpose of this Note is twofold. First, this Note attempts to define more clearly the meaning and scope of substantially the same harm" as that phrase relates to money laundering and fraud convictions. Second, the Note recommends the establishment of a per se rule for the federal courts to follow: money laundering and fraud should not, under any circumstances, be grouped as related counts. Implementation of this rule will have the immediate effect of resolving the circuit split and will best serve the intended purposes of the Guidelines, namely uniformity and proportionality in sentencing.(13)

Section I provides a more detailed explanation of the issue. Section II examines the policies underlying the Sentencing Guidelines, including an explanation of why the Guidelines initially were implemented. Section III provides a brief survey of the circuit split. Section IV is a detailed analysis of the relevant subsections of section 3D1.2. This section integrates and expands upon material from prior sections of the Note (i.e., policy considerations and the cases) and argues that money laundering and fraud should not be grouped. …

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