Bennardo on Aggregate Grouping under the U.S. Sentencing Guidelines

Kevin Bennardo (LSU Paul M. Hebert Law Center) has posted A Quantity-Driven Solution to Aggregate Grouping under the U.S. Sentencing Guidelines Manual on SSRN. Here is the abstract:

The United States Sentencing Guidelines Manual mandates the grouping of many multiple counts of conviction on an aggregate basis. In these instances, the Guidelines aggregate a specific quality of the multiple counts — often the amount of drugs or money — and determine the punishment based on the aggregated quantity. 

This article first undertakes a review of the purposes of grouping under the Guidelines and concludes that grouping under the Guidelines’ other grouping provisions should precede grouping on an aggregate basis in order to minimize the influence of prosecutorial charging decisions.

Second, the article analyzes the text, commentary, and effect of the aggregate grouping guideline and concludes that aggregate grouping is only appropriate when the offense level determination is based primarily on quantity or some other aggregable quality of the offense. Next, the article formulates a mathematical ratio by which to test whether the offense level for an individual offense guideline is determined based primarily on an aggregable or non-aggregable quality of the offense. The ratio is then applied to every offense guideline in the Manual as well as to the distribution of each controlled substance and listed chemical. This data is reproduced in a series of appendices. The article highlights anomalies in the data and identifies the specific offense guidelines that are improperly either subjected to or excluded from aggregate grouping under the current scheme. Lastly, in an appendix, the article sets forth the text of a proposed revised aggregate grouping guideline.