IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________________________
No. 01-20222 _______________________________
UNITED STATES of AMERICA,
Plaintiff-Appellee,
versus
JOSEPH CHIKE AGHOLOR,
Defendant-Appellant.
_________________________________________________
Appeal from the United States District Court for the Southern District of Texas (H-00-CR-440) _________________________________________________ March 25, 2002
Before KING, Chief Judge, and REAVLEY, and WIENER, Circuit Judges.
PER CURIAM*:
Defendant-Appellant Joseph Chike Agholor appeals the district
court’s grouping of his guilty-plea convictions for sentencing
purposes. Concluding that, pursuant to U.S.S.G. § 3D1.2, the
district court committed plain error in its sentencing calculation
and that it erred in grouping Agholor’s convictions into five
separate groups, we vacate and remand for resentencing consistent
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. with this opinion.
I.
FACTS AND PROCEEDINGS
Agholor pleaded guilty to a seven count indictment charging
him with one count of illegal re-entry, one count of unlawful
procurement of naturalization, three counts of making false
statements in passport applications, and two counts of fraud in
connection with identification documents: (1) Count 1 for illegally
reentering the United States in 1993 under the name Prince J.
Agholor, in violation of 8 U.S.C. § 1326; (2) Count 2 for
unlawfully procuring naturalization in 1996 under the name Prince
J. Agholor, in violation of 18 U.S.C. § 1425(b); (3) Count 3 for
fraudulent application for a passport in 1996 under the name Prince
J. Agholor, in violation of 18 U.S.C. § 1542; (4) Count 4 for
fraudulent application for a passport in 1998 under the name
Lawrence Burton, in violation of 18 U.S.C. § 1542; (5) Count 5 for
use of false identification to procure a passport under the name
Lawrence Burton, in violation of 18 U.S.C. § 1028(a)(4); (6) Count
6 for fraudulent application for a passport in 1998 under the name
Bernard J. Jackson, in violation of 18 U.S.C. § 1542; and (7) Count
7 for use of false identification to procure a passport under the
name Bernard J. Jackson, in violation of 18 U.S.C. § 1028(a)(4).1
1 Burton and Jackson are real persons; Prince J. Agholor is an alias of the defendant’s creation.
2 Based on his guilty-plea convictions and past criminal
history, the Presentence Report (the “PSR”) calculated Agholor’s
Criminal History Category (“CHC”) as III and his base offense level
as 12. The probation officer arrived at this offense level by
using the base offense level of 8 for unlawfully entering the
country.2 He then added 4 levels for Agholor’s specific offense
characteristic —— namely, Agholor’s illegal re-entry after having
been previously deported for committing a felony.3 The PSR noted
that, although there were multiple conviction counts, all counts
were grouped together pursuant to U.S.S.G. § 3D1.2(b) and that only
the offense level for the violation with the highest base level
(here, illegal re-entry) would be used.
The government filed multiple objections to the PSR’s
recommended grouping of all seven counts into a single category.
The government argued that corralling all of the offenses into one
group severely misrepresented Agholor’s criminal conduct and that
Agholor’s theft of two identities to obtain three passports under
three aliases necessitated separate groups. The probation officer
consistently maintained, however, that all of Agholor’s offenses
implicated the same societal harms, criminal objective, and victim,
and therefore should be grouped together.
The district court rejected the PSR’s recommendation and
2 U.S.S.G. § 2L1.2(a). 3 U.S.S.G. § 2L1.2(b)(1)(D).
3 devoted nearly all of the sentencing hearing to a discussion of the
grouping. Initially, the district court appeared to consider the
option of placing Count 1 (illegal re-entry) in one group, Count 2
(unlawful naturalization procurement) in a second, Counts 3, 4, and
6 (the fraudulent passport applications) in a third group, and
Counts 5 and 7 (use of false identification) in a fourth. The
government urged that Counts 3, 4, and 6 should not be grouped
together because three identities were used and because Lawrence
Burton and Bernard Jackson were two separate and identifiable
victims. The court then entered into an extended colloquy with
defense counsel regarding whether all the offenses should be placed
into one group. In the end, the court agreed with the government
and rejected defense counsel’s contention that all of Agholor’s
crimes had the same victim —— namely, society as a whole.
The district court coupled the false identification
convictions with their respective passport application convictions
and settled on the following five groups: (1) Count 1; (2) Count 2;
(3) Count 3; (4) Counts 4 and 5; (5) Counts 6 and 7. Based on
these five groups, the district court, on the advice of the
probation officer, added 5 levels to the offense level of 12 to
arrive at an offense level of 17. The district court sentenced
Agholor to 37 months imprisonment, the maximum sentence for the
Guidelines range of 30-37 months for an offense level of 17 and a
CHC of III.
Agholor timely appealed his sentence. He contends that (1)
4 society at large is the only victim of his crimes and hence the
violations should be conglomerated into one group; (2) at most, his
violations should be separated into three groups; and (3) the
district court plainly erred in calculating his combined offense
level at 17.
II.
ANALYSIS
A. Standard of Review
The district court’s decision to group counts together for
sentencing purposes vel non is a question of law that we review de
novo.4 The government concedes that Agholor’s contention that his
crimes should fall into one group is reviewed de novo; however, the
government asserts that because Agholor never raised the
alternative argument that his convictions should at most be
separated into three groups, we should review that issue for plain
error. We disagree. Having adequately raised the general issue of
grouping during sentencing, and given this court’s de novo review
of the district court’s grouping decision, it is unduly rigid to
require Agholor to raise every other possible grouping permutation
to preserve those arguments for appeal. Therefore we review the
4 United States v. Leonard, 61 F.3d 1181, 1185 (5th Cir. 1995) (“The issue of grouping counts for sentencing purposes is generally a question of law subject to de novo review. The sentence will be upheld if it was imposed as a result of a correct application of the guidelines to factual findings which are not clearly erroneous.”) (citations and internal quotations omitted).
5 entire issue of grouping, with all of its possible combinations,
under our de novo standard.
B. Grouping of Agholor’s Convictions
1. Same Victim
Citing U.S.S.G. § 3D1.2(b), Agholor contends that all his
convictions should be grouped together. Section 3D1.2(b) states,
in relevant part:
Groups of Closely Related Counts 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: ... (b) When counts involve the same victim and two or more acts or transactions connected by a common objective or constituting part of a common scheme or plan.
Application Note 2 to this guideline rule clarifies:
2. The term “victim” is not intended to include indirect or secondary victims. Generally, there will be one person who is directly and most seriously affected by the offense and is therefore identifiable as the victim. For offenses in which there are no identifiable victims (e.g., drug or immigration offenses, where society at large is the victim), the “victim” for purposes of subsections (a) and (b) is the societal interests that are harmed. In such cases, the counts are grouped together when the societal interests that are harmed are closely related. Where the count, for example, involves unlawfully entering the United States and the other involves fraudulent evidence of citizenship, the counts are grouped together because the societal interest harmed (the interest protected by law governing immigration) are closely related. In contrast, where one count involves the sale of controlled substances and the other involves an immigration law violation, the counts are not grouped together because different societal
6 interests are harmed. Ambiguities should be resolved in accordance with the purpose of this section as stated in the lead paragraph, ie., to identify and group “counts involving substantially the same harm.” (emphasis added).
Grounded in these provisions, Agholor’s basic contention is
that his crimes of illegal re-entry, fraudulent procurement of
naturalization, and fraudulent passport applications are
immigration crimes, and that all have the same victim —— society at
large. Arguing that all the statutes relevant here protect the
integrity of the country’s borders and are designed to regulate
residence within, and travel outside, the United States, Agholor
insists that the interests at stake, although not identical, are
closely related, as required by the guideline application note.
The government asserts in response that, even though society
at large is generally the victim of these offenses, Agholor’s
crimes have distinct and separate victims. The government
contended, and the district court agreed, that the use of Burton’s
and Jackson’s identities made them individualized victims of the
passport and identification fraud counts. The government argues to
us that the district court’s finding that Burton and Jackson were
victims is a factual finding and thus cannot be reversed unless it
is clearly erroneous. Even if this is so, it is irrelevant because
the larger question is whether the district court may, as a matter
of law, properly consider individuals as “victims” in the context
of U.S.S.G. § 3D1.2.
Agholor’s argument that there can be no identifiable victims
7 for these types of immigration crimes finds support in United
States v. Lara.5 In Lara, the district court granted an upward
departure pursuant to 5K2.3 (“Extreme Psychological Injury”) for a
defendant convicted of various counts of harboring and transporting
illegal aliens. Discussing whether the psychological damage
inflicted on an individual illegal alien was a permissible factor
for upward departure, a panel of this court noted:
At the outset, application of section 5K2.3 to the instant offense would appear to be barred by the statement in application note 2 to section 3D1.2 that, in the case of an immigration offense, there is no identifiable victim.6
Ultimately, however, the panel decided the issue on insufficiency
of the evidence of harm rather than on the legal applicability of
individualized harm during an immigration offense.
Under the discrete facts of this case, we need not consider
the larger question whether individuals can ever be the
identifiable victims of immigration crimes. Even assuming arguendo
that in the instant situation immigration crimes could have
identifiable victims, Burton and Jackson were at most “indirect or
secondary victims” as contemplated by the application note to §
3D1.2(b). Thus, for purposes of this case, we conclude that the
only relevant victim of Agholor’s crimes was society at large.
Having so concluded, we must decide next whether the societal harms
5 975 F.3d 1120 (5th Cir. 1992). 6 Id. at 1127.
8 implicated by Agholor’s crimes were “closely related.”
B. Closely Related Interests
The cases cited by the government in its brief are not
instructive on the precise question whether illegal re-entry,
unlawful procurement of naturalization, and passport application
fraud implicate closely related societal interests.7 Although it
seems clear, for example, that the societal interests affected by
illegal re-entry and illegal firearm possession are distinct (i.e.,
enforcing immigration laws versus protecting society from those
deemed unqualified to possess firearms), it is not at all clear
that re-entry, naturalization, and passport violations reach a
sufficient level of separateness to avoid classification as closely
related interests.
Undaunted, the government insists that Agholor’s offenses
implicate distinct societal interests and cannot all be classified
as “immigration” violations. The government’s argument is not
wholly persuasive for at least four reasons. First, the nature of
the societal interests at stake can always be manipulated and
defined at various levels of specificity or abstraction. For
7 See United States v. Packer, 70 F.3d 357 (5th Cir. 1996) (no plain error in district court’s finding that different interests were implicated by passport fraud, structuring financial transactions, concealing an individual from arrest, and social security and mail fraud); United States v. Gallo, 927 F.2d 815 (5th Cir. 1991) (societal interests harmed by drug trafficking and money laundering not closely related); United States v. Salgado-Ocampo, 159 F.3d 322 (7th Cir. 1998) (convictions for illegal re-entry and illegal alien in possession of a firearm could not be grouped).
9 example, the PSR viewed all of Agholor’s crimes as implicating the
same or similar societal interest —— specifically, “[t]his
defendant’s criminal objective was to violate the laws governing
immigration in order to be able to live within the United States
and have the ability to travel outside the United States.”
Nevertheless, the government’s decision to define the societal
interests for each of Agholor’s violations narrowly cannot
substitute as the basis of a legal standard on which this case
should be decided.
Second, the guidelines do not require that the crimes
implicate the same societal interests; only that the interests be
“closely related.” Third, the structure of the guidelines
indicates that illegal re-entry, naturalization, and passport
violations are indeed closely related: The sentencing for all
three types of violations are agglomerated in Chapter 2, Part L,
under the title “Offenses Involving Immigration, Naturalization,
and Passports.”8
Finally, the guidelines contemplate the grouping of illegal
re-entry convictions with naturalization or passport fraud under
particular circumstances. Clarifying U.S.S.G. § 2L2.2, the
Sentencing Guideline for fraudulently acquiring naturalization or
a passport, the Application Notes read, in relevant part:
8 The Application Notes to the guidelines in that section also state “‘Immigration and naturalization offense’ means any offense covered by Chapter Two, Part L.” See, e.g., U.S.S.G. § 2L2.1, n. 1.
10 1. For purposes of this guideline— “Immigration and naturalization offense” means any offense covered by Chapter Two, Part L. 2. For the purposes of Chapter Three, Part D (Multiple Counts), a conviction for unlawfully entering or remaining in the United States (§ 2L1.2) arising from the same course of conduct is treated as a closely related count, and is therefore grouped with an offense covered by this guideline.9
Importantly, this guideline section not only indicates the close
relationship of the societal interests harmed by Agholor’s
offenses, but also calls into question the district court’s
division of Counts 1, 2, and 3 into separate groups.
Given the structure of the Guidelines and the implication of
the application notes, we are satisfied that the societal interests
implicated by Agholor’s conduct are sufficiently “closely related”
to require them to be classified as such.
C. Common Criminal Objective/Common Scheme or Plan
When, as here, the convictions involve (1) the same victim,
(2) closely related societal interests, and (3) two or more acts or
transactions, the grouping of the crimes requires that they be
“connected by a common criminal objective or constitut[e] part of
a common scheme or plan.”10 As with the other questions presented,
otherwise controlling case law does not shed much light on the
issue of what constitutes a common criminal objective or a common
scheme or plan.
9 U.S.S.G. § 2L2.2, n. 1-2. 10 U.S.S.G. § 3D1.2(b) (emphasis added).
11 These elastic grouping standards could lead to a variety of
grouping combinations. Given the conclusions reached in our
foregoing discussion, however, we are convinced that from most
legal vantage points, this question is best answered with the
conclusion that Agholor’s crimes should be divided into three
groups.
Segregating Agholor’s crimes into three groups is justified
under several different rationales. To our way of thinking, the
most prudent approach under these facts is to view Agholor as
having engaged in three sets of transactions. The first set
encompasses Counts 1, 2, and 3, starting with his illegal re-entry
into the United States, followed by his procurement of
naturalization and his application for a passport, all under the
pseudonym of Prince J. Agholor.11 The second set of transactions
encompasses Counts 4 and 5 and includes Agholor’s use of false
identification and application for a passport under the name
Lawrence Burton. The third set of transactions encompasses Counts
6 and 7 and includes his use of false identification and
application for a passport under the name Bernard Jackson.
This grouping methodology is consistent with our conclusions
that (1) either the crimes here have no identifiable victims or the
alleged victims are secondary at most, and (2) Agholor’s crimes
11 This grouping of these three counts further supported by Application note 2 to § 2L2.2. See supra note 9 and accompanying text.
12 implicate closely related interests. In addition, this methodology
jibes with the district court’s statement during sentencing that
Agholor’s passport applications under three different names
probably indicates distinct criminal objectives.
Although we believe this to be the most cogent analysis, we
hasten to note that at least two other rationales support
separation into three groups: a temporal assessment and a victim-
specific approach. Temporally, Agholor’s crimes separate into
three groups based on the timing of his activities: (1) He
illegally re-entered the United States in 1993; (2) he procured
naturalization and applied for a passport under the name Prince J.
Agholor in late 1996; and (3) he used false identifications to
apply for passports under the names Lawrence Burton and Bernard
Jackson in March and April of 1998. Thus, a straightforward but
simplistic temporal analysis would lead to the grouping of Count 1
by itself, Counts 2 and 3 together, and Counts 4, 5, 6, and 7
together —— different combinations but three groups nonetheless.
Under other circumstances a temporal assessment might be a more
viable and prudent approach than it is here.
And, even if we were to have held that immigration crimes
could have separately identifiable, individual victims, and that,
in this case, Burton and Jackson were primary, as opposed to
incidental or secondary victims, we would still divide Agholor’s
crimes into three groups: (1) Counts 1, 2, and 3 for harming
society under the alias Prince J. Agholor; (2) Counts 4 and 5 for
13 harming Lawrence Burton; and (3) Counts 6 and 7 for harming Bernard
Jackson.
With the multitude of possible combinations and permutations
in this aspect of sentencing, we refrain from mandating any one
manner of grouping counts for sentencing purposes. As is typical
of many features of the Sentencing Guidelines, grouping is a
“slides and ladders” operation that ultimately must be resolved on
a case-by-case basis. Each situation will be highly dependent on
its discrete facts, which sentencing courts should consider in
connection with the Sentencing Guidelines as a whole and with the
accompanying application notes. As the case before us amply
demonstrates, there is no obvious, “right” methodology, and we
assiduously avoid any implication that there is.
C. Plain Error in Offense Level Calculation
Agholor also argues that the district court erred when it
added 5 offense levels to his base offense level of 12. As Agholor
did not raise this objection during the proceedings in district
court, we review it for plain error.12 We agree with Agholor that
the district court’s error in this regard is plain,13 because the
12 United States v. Martinez-Cortez, 988 F.2d 1408, 1410 (5th Cir. 1993) (“When a new factual or legal error is raised for the first time on appeal, plain error occurs whe[n] our failure to consider the question results in manifest injustice.”) (citations and internal quotations omitted). 13 The government also concedes that the district court erred when it added 5 levels instead of 4.
14 relevant guideline provision clearly states that when the number of
groups is 3 ½ to 5, the offense level should be increased by 4
levels, not 5 as imposed by the district court.14
Given our conclusions regarding the grouping of Agholor’s
convictions and our remand on that issue, however, this point of
error is moot. After Agholor’s convictions are divided into three
groups on remand, his base offense level must be increased by 3
levels, bringing his total offense level to 15. With Agholor’s CHC
of III and an offense level of 15, the applicable guidelines
sentencing range is 24 to 30 months imprisonment. That will be the
starting point for the sentencing court on remand.
III.
CONCLUSION
For the foregoing reasons, we vacate Agholor’s sentence and
remand this case to district court for sentencing consistent with
this opinion.
VACATED and REMANDED.
14 U.S.S.G. § 3D1.4.