Counts from Separate Indictments Properly Grouped for Sentencing

U.S. v. Herula, 2006 WL 2699036 (9/21/06) - The d.ct. correctly grouped counts from different indictments (regarding offenses in different states) where the d.ct. imposed sentences for both indictments at the same time. Application note 1 of USSG 5G1.2 relating to sentencing on multiple counts must be considered in grouping under USSG § 3D. In this case the application note requires grouping of multiple counts in different indictments when the sentences are imposed at the same time. The fact that the parties did not anticipate the grouping, as evidenced by the non-binding stipulations in the plea agreement, did not render the resulting sentence unreasonable. The parties' expectations do not overcome the presumption of reasonableness accorded the guidelines. The sentence imposed under Booker did not violate the Ex Post Facto Clause because Booker was not applied retroactively and the record does not reflect that the defendant would have been sentenced any differently under the pre-Booker mandatory guideline system.