Two Threats to Same Victim Should Not Have Been Grouped

U.S. v. Chapple, 2006 WL 2848088 (10/6/06)(unpub'd) - The 10th reverses for a plain error in sentencing. It was error to consider two threats to the same victim as separate offenses for grouping purposes. The defendant sent two envelopes at different times with harmless white powder to scare a woman he was stalking. The grouping rules of § 3D1.2(b) (re: grouping counts involving the same victim or same scheme) applied. § 3D1.2(d) excludes the relevant offense guideline from its grouping rule, but not from grouping under (b). Even though more than one person was affected by the threat because someone else opened one of the envelopes, the offenses should be considered as involving only one victim, since only one person was the intended victim. The error affected the defendant's substantial rights and seriously affected the fairness of the proceedings (the 3rd and 4th prongs of the plain error test) because the top of the new guideline range was below the sentence actually imposed.