Last Thursday, the Fourth Circuit joined “a circuit split as to how to properly apply the Grouping Guideline when determining cross-references for murder or other violent offenses.” United States v. Horton, No. 11-4052, 2012 U.S. App. LEXIS 18423, 38-39 (4th Cir. Aug. 30, 2012).
Writing for the court, Judge G. Steven Agee summarized the circuit split on this issue as follows:
There is a circuit split in the threshold issue as to whether only the offense of conviction need be a groupable offense or whether both the offense of conviction and the relevant conduct offense (the cross-referenced offense) must be groupable offenses in order to apply Subsection (a)(2). Notably, all but one of the circuits to have squarely addressed the issue have adopted Horton's view that both must be groupable. See, e.g., United States v. Williams, 431 F.3d 767, 772-73 & n.9 (11th Cir. 2005) (concluding that where conviction was for a violation of 18 U.S.C. § 922(g), the district court erred in utilizing an assault with a different firearm as relevant conduct, because assault is excluded from being grouped, and thus "the definition of relevant conduct found in § 1B1.3(a)(2) is not available to the Government"); United States v. Settle, 414 F.3d 629, 632 n.2 (6th Cir. 2005) (attempted murder is not groupable and thus could not be relevant conduct under Subsection (a)(2) in case where charge of conviction was felon-in-possession of a firearm); United States v. Jones, 313 F.3d 1019, 1023 & n.3 (7th Cir. 2002) (although holding that the Cross-Reference Provision in § 2K2.1 was appropriately applied to a murder that was relevant conduct under Subsection (a)(1), observing the murder would not be relevant conduct under Subsection (a)(2) because "the homicide charge is specifically excluded" from the Grouping Guideline); United States v. Levario-Quiroz, 161 F.3d 903, 906 (5th Cir. 1998) (in applying the Cross-Reference Provision, defendant's acts of assault with attempt to commit murder and attempted murder were not "relevant conduct" under Subsection (a)(2) because, although they were part of the same course of conduct as the offense of conviction, "they were not offenses of a character for which [USSG §] 3D1.2(d) would require grouping"). But see United States v. Kulick, 629 F.3d 165, 170-71 & n.4 (3d Cir. 2010) (concluding that only the offense of conviction need be subject to grouping).
The court’s opinion points out, however, that the Third Circuit panel responsible for creating the lopsided conflict “embraced its holding with little enthusiasm.”
In light of the weak split in authority, the Fourth Circuit joined the majority of its sister circuits:
Now squarely faced with the same issue as our sister circuits, we agree with the conclusions of the Fifth, Sixth, Seventh, and Eleventh Circuits and hold that Subsection (a)(2) of the Relevant Conduct Guideline is applicable only when both the offense of conviction and the relevant conduct offense are capable of grouping. See USSG § 1B1.1 cmt. n.1(H) (defining "offenses" to "mean[s] the offense of conviction and all relevant conduct.")