To Group or Not to Group: U.S. Sentencing Guidelines Warrant Lenity when Grouping Charged and Uncharged Conduct

United States v. Tony, No. 23-2110 (10th Cir. Oct 29, 2024).

Author: Ben DeKoning, Staff Editor

Issue: Whether, having grouped two obstruction counts together under the U.S. Sentencing Guidelines, a court must further group those counts with the underlying offense at which the obstructive conduct was directed under § 3D1.2(c).

Answer: Yes, but not because the statutes intended this result. Instead, the sentencing guidelines were “grievously ambiguous” and thus the rule of lenity applied, minimizing the defendant’s sentence.

Facts: Defendant Brian Tony was convicted in federal court on one count of murder and two counts of witness tampering.  On remand, his murder charge was lessened to voluntary manslaughter.  The United States District Court for the District of New Mexico invoked the sentencing package doctrine, enabling the court to group together and effectively resentence Tony on all three counts.

 Tony’s initial presentence report suggested an offense level of thirty-three, which included a two-point “obstruction of justice enhancement” under U.S. Sent’g Guidelines Manual § 3C1.1 (U.S. Sent’g Comm’n 2024).  The report was lowered to level thirty-one after regrouping the two obstruction counts together via § 3D1.2(b) and the manslaughter conviction via § 3D1.2(c).^[1]  The State argued that the district court should apply the two-point increase not for the witness tampering convictions, but instead for the obstructive conduct of which Tony was not convicted.

The district court determined the witness tampering convictions were properly grouped under § 3D1.2(b) but rejected grouping these counts with the voluntary manslaughter conviction.  The court implied § 3D1.2(c) only requires grouping when an obstruction count actually enhances the underlying offense’s base level.  Because the court sustained the obstruction enhancement with uncharged conduct rather than the charged witness tampering count, the tampering counts did not actually adjust the manslaughter charge, and thus were not required to be grouped further.  Accordingly, the court ultimately concluded an offense level of thirty-two was appropriate.  Tony appealed.

Discussion: The 10th Circuit analyzed the language, commentary, and policy considerations of the Guidelines to determine the intent of the Sentencing Commission.  Tony argued that §§ 3D1.2(b)–(c)—and the commentary’s notes—required that all charges be grouped together, as the witness tampering was in itself obstructive conduct directly relevant to the manslaughter conviction.  Mirroring the district court, the State argued that the grouping provided by 3D1.2(c) was only appropriate when the underlying conduct actually increased the offense level.  As the obstruction enhancement was applied to Tony’s uncharged actions (lying to the FBI), which did not adjust his offense level, the State argued § 3D1.2(c)’s grouping provisions did not apply. 

The 10th Circuit found the Guidelines to be “grievously ambiguous,” and reasoned that accepting either party’s interpretation would be guessing at the Sentencing Commission’s intent. The court resolved this ambiguity based on the rule of lenity, which establishes that unclear or ambiguous statutes should be construed in the manner most favorable to the defendant.  The court resolved the interpretive tie in favor of Tony, vacating the sentence and remanding for resentencing. 

Key Authorities: U.S. Sent’g Guidelines Manual §§ 3C1.1, 3D1.2(b), (c) (U.S. Sent’g Comm’n 2024).

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^[1]  U.S. Sent’g Guidelines Manual § 3D1.2(b), (c) (U.S. Sent’g Comm’n 2024) (Allowing closely related counts to be grouped).