UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 98-4317

RORY BARTLEY, a/k/a Roy Bailey,
Defendant-Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge. (CR-97-157)

Argued: June 5, 2000

Decided: October 26, 2000

Before WILKINSON, Chief Judge, and MICHAEL and MOTZ, Circuit Judges.

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Affirmed in part, reversed in part, vacated in part, and remanded by published opinion. Judge Motz wrote the majority opinion,
in which Judge Michael joined. Chief Judge Wilkinson wrote a dissenting opinion.

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COUNSEL

ARGUED: Kevin B. Burgess, HAMILTON, BURGESS, YOUNG & POLLARD, P.L.L.C., Oak Hill, West Virginia, for Appellant. Louise Anna Crawford, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Rebecca A. Betts, United States Attorney, John C. Parr, Assistant United States Attorney, Charleston, West Virginia, for Appellee.
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OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Rory Bartley pled guilty to one count of conspiracy to distribute marijuana and one count of conspiracy to launder money. On
appeal, Bartley challenges only his sentence. Because the district court erred in refusing to group Bartley's offenses, but did not
err in finding Bartley's managerial role in the conspiracy justified an enhancement, we affirm in part, reverse in part, and vacate
and remand for resentencing.

I.

Edwin Bruce recruited Bartley to participate in a marijuana distribution network based in Charleston, West Virginia. Bruce
introduced Bartley to a number of interested buyers, including street dealers. Bartley regularly distributed marijuana to these
dealers from Bruce's supply and made wire transfers to California to purchase marijuana on Bruce's behalf.

Bartley eventually disaffiliated from Bruce and located another marijuana supplier, but he maintained his associations with some
of Bruce's street dealers and at times obtained marijuana from Bruce's distributors. Ultimately, Bartley expanded his drug
distribution activities to Parkersburg, West Virginia, and directed one of his street deal- ers to identify addresses there to which marijuana could be mailed.

Bartley's street dealers would distribute the marijuana and wire transfer the proceeds on Bartley's instruction, often to his uncle
Claudius Pryce in New York. Bartley himself would also wire funds from his drug proceeds to various family members.

Bartley was charged with conspiracy to distribute marijuana, distri- bution of marijuana, conspiracy to launder money, and two counts of money laundering. After plea negotiations, he pled guilty to the two conspiracy counts and the district court proceeded to sentence him. In calculating Bartley's offense level under the Sentencing Guidelines, the court began with the drug distribution
conspiracy and assigned a base offense level of 28 predicated upon the amount of marijuana involved in the offense. See U.S. Sentencing Guidelines Manual § 2D1.1(a)(c) (1998). The court then applied a three-level enhancement for Bartley's role as a
supervisor or manager in the conspiracy, see id. § 3B1.1(b), resulting in an adjusted offense level of 31 for the drug distribution
count. For the money laundering conspiracy, the district court assigned a base offense level of 23 under U.S.S.G. §
2S1.1(a)(1) and applied the same three-level enhancement based on Bartley's role in the offense. The court then applied another
three- level enhancement based on Bartley's knowledge that the laundered funds were drug proceeds under U.S.S.G. §
2S1.1(b)(1), resulting in an adjusted offense level of 29 for this count.

The district court did not group the two conspiracy counts together into a single "Group" under Part D of Chapter 3 of the
Sentencing Guidelines. Instead, the court treated the two counts as distinct, and, in accordance with U.S.S.G. § 3D1.4(a), the
court started with the greater of the two offense levels -- 31, for the drug conspiracy -- and then added two more levels because
the adjusted offense level for the money laundering conspiracy was only two levels less serious than that for the drug conspiracy.
This resulted in a combined adjusted offense level of 33. Finally, the court credited Bartley with a three- level downward
adjustment for his acceptance of responsibility, see id. § 3E1.1, for a total offense level of 30, and sentenced him to 109 months imprisonment.

On appeal, Bartley contends that the district court erred in failing to group the two conspiracies for sentencing purposes. He also
contends that the government offered insufficient evidence to support the district court's imposition of the enhancements for his
alleged role in the conspiracies. We review a district court's legal interpretation of the Sentencing Guidelines de novo, see United
States v. Williams, 152 F.3d 294, 302 (4th Cir. 1998), and its underlying factual determinations in applying the Guidelines for
clear error. See 18 U.S.C. § 3742(e); United States v. France, 164 F.3d 203, 209 (4th Cir. 1998), cert. denied, 527 U.S. 1010 (1999).

II.

Bartley first argues that the two conspiracy counts should have been grouped in calculating his combined adjusted offense level.
Section 3D1.2 of the Sentencing Guidelines provides for the grouping of closely related counts, or those that "involv[e] substantially the same harm." The Guidelines identify four situations in which counts should be grouped together for sentencing purposes:

(a) When counts involve the same victim and the same act or transaction.

(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.

(c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.

(d) When the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.

U.S.S.G. § 3D1.2.

In an addendum to Bartley's Presentence Report (PSR), the probation officer cited subsection (b) and application note 2 to
explain why he treated the two conspiracy counts as separate groups. In the officer's opinion, the conspiracies harmed distinct
societal interests and therefore did not involve "the same victim." Bartley objected to the PSR. Although the government agreed
with the probation officer's analysis of subsection (b), it also brought to the district court's atten- tion the potential relevance of
subsection (c) as a basis for treating the conspiracy counts as one group. Nonetheless, in refusing to group the offenses, the
district court simply determined that each of the conspiracies harmed a distinct societal interest and did not involve "the same
victim" as required by subsection (b); the court never reached the question of grouping on the basis of subsection (c).

For purposes of this appeal, we assume, without deciding, that the conspiracies impact different societal interests, and so
grouping the counts under subsection (b) would be improper. See United States v. Harper, 972 F.2d 321, 322 (11th Cir. 1992)
(refusing to group under subsection (b)); United States v. Gallo, 927 F.2d 815, 824 (5th Cir. 1991) (same). But see United
States v. Lopez, 104 F.3d 1149, 1150- 51 (9th Cir. 1997) (grouping under subsection (b) proper); United States Sentencing
Commission, Most Frequently Asked Questions About the Sentencing Guidelines, 20-21 (7th ed. 1994) ("Most Fre- quently
Asked Questions") (grouping under subsections (a), (b), or (c) proper).1 The commentary to § 3D1.2, however, provides that
"[c]ounts are to be grouped . . . if any one or more of the subsections provide for such grouping." U.S.S.G. § 3D1.2, comment.
(n.1) (emphasis added); see also id., comment. (backg'd.) ("Counts involving different victims (or societal harms in the case of
`victimless' crimes) are grouped together only as provided in subsection (c) or (d)."). Thus, even if grouping would be improper under subsection (b), it may be proper under another subsection.

To prevent "double counting," subsection (c) requires offenses to be grouped when one count "embodies conduct that is treated
as a specific offense characteristic in, or other adjustment to," the offense level calculation of the other count. U.S.S.G. §
3D1.2(c); see also id. § 3D1.2, comment. (n.5). In calculating Bartley's offense level for the conspiracy to launder money, the
district court, as recommended in the PSR, applied a three-level enhancement because Bartley "knew or believed that the funds
were the proceeds of an unlawful activity involving the . . . distribution of narcotics or other controlled sub- stances." U.S.S.G. §
2S1.1(b)(1). In this case, grouping under subsection (c) was required. As the only circuit to consider grouping money
laundering and drug distribution charges, explained: Rice's drug offenses were counted twice toward his sentence; once as the
basis for his conviction on his drug counts, and again as a specific offense characteristic of the money laundering count. This had
the effect of increasing Rice's money laundering offense level by three pursuant to § 2S1.1(b) because he knew or believed the
funds he was receiving were the proceed[s] of the unlawful distribution of marijuana. . . . Therefore, we find that Rice's offense
behavior was impermissibly double counted. Accordingly, we hold that the district court erred in failing to group Rice's counts
for sentencing purposes as required by subsection (c).

United States v. Rice, 185 F.3d 326, 329 (5th Cir. 1999).

In reaching this holding the Fifth Circuit relied on its earlier deci- sion in United States v. Haltom, 113 F.3d 43, 46 (5th Cir.
1997), which involved one count of mail fraud and four counts of tax eva- sion. The Haltom court held that subsection (c)
required the counts to be grouped where the district court applied a two-level enhancement under U.S.S.G. § 2T1.1(b)(1) in
calculating the offense level for the tax evasion counts because the defendant's unreported income derived from criminal activity,
i.e., mail fraud. The court explained that "[b]y requiring the grouping of Haltom's[offenses], the guide- lines spare him any
incremental punishment for his tax crimes. . . . [T]he guidelines clearly forbid . . . using the mail fraud count to enhance the
offense level for tax evasion and then using the enhanced tax evasion offense level to increase the offense level for mail fraud."
113 F.3d at 47 (emphasis added).

Bartley, like Rice, received the three-level enhancement under U.S.S.G. § 2S1.1(b)(1) for his knowledge that the laundered
funds were the proceeds of unlawful drug distribution activities. As such, here, as in Rice, conduct embodied by the conspiracy
to distribute marijuana conviction was double counted: "the enhanced . . . count was directly responsible for the ultimate 2-level
increase in his total offense level" -- from 31 to 33 -- under U.S.S.G. § 3D1.4. Haltom, 113 F.3d at 46.2 Of course, subsection
(c) "applies only if the offenses are closely related." U.S.S.G. § 3D1.2(c), comment. (n.5). Although the district court found that
the counts were not"inter-related[ ]" for purposes of subsection (b) because each conspiracy caused a different societal harm,
obviously the drug and money laundering conspiracies were "closely related" under subsection (c). Indeed, both the indictment
and the PSR explicitly refer to the association of the two con- spiracies, and the district court found that the money laundering
"was to conceal and move the proceeds . . . [and] to get those proceeds to other individuals who were in the consignment or
fronting chain of command of the drugs."

Nevertheless, the government and the dissent maintain that subsection (c) does not apply to Bartley's case because the specific
offense characteristic at issue does not punish for the actual distribution or transport of drugs, but rather for the knowledge that
the laundered funds were drug proceeds. According to the government and the dis- sent, this knowledge is a separate act of
criminal conduct not mirrored in the drug conspiracy count. To adopt this argument would promote an approach to the
Sentencing Guidelines that would require district courts to unnecessarily "split hairs" or guess congressional intent in evaluating
which specific offense characteristics or other adjustments are covered by subsection (c). Moreover, if we followed this
approach, we could never group a money laundering offense with a drug offense. But see Most Frequently Asked Questions,
supra, 21 ("§ 3D1.2 would call for grouping of related drug trafficking and money laundering counts under one or more of rules (a), (b), or (c).").

Furthermore, whatever the merit of this approach in a given case -- and our good friend Judge Wilkinson in dissent makes about
as good a case for this approach as possible -- we cannot conclude it should be followed here. Subsection (c), after all, requires
a court, when determining whether to group offenses, to consider the conduct embodied in each of a defendant's multiple counts.
In this case, the conduct embodied by the drug conspiracy count is extremely expansive. Indeed, the indictment specifically
alleges that "[i]t was further a part of the [drug] conspiracy that in order to finance their ongoing illegal activity, the defendants . . .
would and did use Western Union money transfers, United Parcel Service, and other couriers" to transfer proceeds from
marijuana sales "in order to finance their ongoing ille- gal activity." In considering whether to group the offenses, we cannot treat
the "conduct" embodied in the drug conspiracy count as consti- tuting only acts of drug distribution when in fact the offense
conduct the indictment actually charges in this conspiracy count includes laun- dering drug proceeds to facilitate illegal drug
distribution activities.

The dissent contends that because "the guidelines use the words `counts' and `offenses' interchangeably," post at 17, the
Guidelines intend a court to confine its grouping analysis to the legal elements of an "offense" rather than the conduct charged in
the indictment. Examination of the terms "count" and "offense" as used throughout the Guidelines, however, leads inevitably to the
contrary conclusion that those terms encompass more than the elements of a crime. Indeed, Chapter Two of the Guidelines
repeatedly uses the term "offense characteristics," and a review of what the Commission consid- ers "characteristics" of an
"offense" makes clear that "offense" includes aspects of a crime other than its elements. For example, the Commission states that
whether a defendant "knew" the source of laundered funds is a "characteristic" of the"offense" of money laun- dering. § 2S1.1.
Since knowledge of the source of laundered funds is not an "element" of the "offense" of money laundering, the Commis- sion
obviously included more than the "elements" of a crime within its definition of "offense."3

Nor does our holding that a court, when grouping, must examine the facts charged in the indictment cede power to prosecutors
or allow them to "manipulate" a defendant's sentence. Post at 17. Rather, by restricting the grouping analysis to the "elements" of
an offense, the dissent would advance a one-size-fits-all scheme in which certain offenses, and only those offenses, can be
grouped. Leaving aside the fact that the Commission likely would have provided such a list had it intended courts to apply the
Guidelines in this manner (as it simi- larly did in § 3D1.2(d)), the dissent's